fully understand and comprehend the force and effect of the deed, or to fully appreciate its significance." In view of the use of the word "fully" in the paragraph, we look further into the findings, where, in one place, the chancellor says that the orator understood and realized only that after his death the property would go to his son, the defendant, and where, in another place, the chancellor says that the orator did not understand that the deed would limit or circumscribe his rights in respect to his property. The chancellor further finds that at the time of making the deed the orator was largely under the influence and control of his son, and further says that one is forced to the conclusion that fear that a will which he had made in favor of the son would be broken was unduly impressed upon the orator, and that the execution of the deed was conceived and brought about by some other controlling mind. These affirmative findings are sufficient to support the decree, for they show not only that the orator did not “fully" understand the business he was doing, but that he did not have a reasonable understanding of it, and did not know the consequence of his act, and that the execution of the deed was impelled by the mind of another. Allen's Adm'r v. Allen's Adm'r, 79 Vt. 173, 64 Atl. 1110; King v. Davis, 60 Vt. 502, 11 Atl. 727; Stewart v. Flint, 59 Vt. 144, 8 Atl. 801; Day v. Seely, 17 Vt. 542; Morse v. Slason, 13 Vt. 296. The defendant claims that these findings are inconsistent with other findings expressly made. But from a careful reading of the findings of the chancellor we are unable to agree with this contention. If it appeared that any of the subordinate facts to which the defendant calls our attention were excluded from consideration in determining the ultimate facts, a different question would be presented. Skelley v. Skelley, 88 Vt. 254, 92 Atl. 234. But nothing of this sort appears. The subordinate findings argued by the defendant did not determine, as matter of law, what the ultimate findings and the decree should be. [2] The defendant also claims that the findings are not supported by the evidence. But no exceptions were filed to the findings, or to any of them, on the ground urged or on any ground. So the claim of the defendant in this respect is not properly before us for consideration. Barber v. Bailey, 86 Vt. 219, 84 Atl. 608, 44 L. R. A. (N. S.) 98. The chancellor states, and it is proper here to mention, that the question of whether there was anything due the defendant for care, nursing, and services was not considered as within the scope of the bill, and was not determined or litigated. He also states that the defendant collected rents and made repairs on the real estate in question, but that these matters were not in issue, and that nothing in the findings is intended to (Supreme Court of Vermont. Washington. May 15, 1915.) 1. WILLS 506-CONSTRUCTION-DESIGNATION OF DEVISEES OR LEGATEES-"MY LAWFUL HEIRS." A testator gave property in trust for his mother during her lifetime, and provided that at her death, the balance of the trust fund redaughter, and one-half to "my lawful heirs." maining, should be paid one-half to a grandWhen the will was executed, he was confined to his bed with the sickness which caused his death 25 days later. He left no widow, and grandchild's father was living, and was her only the grandchild was his only descendant. The heir. The will also gave property in trust for the granddaughter, and provided that if she died before reaching the age of 40 years, and left no issue or children of issue, the trust fund should be paid one-half to the lawful heirs of the grandchild, and the other one-half to "my lawful heirs," and the residuary clause gave the remaining estate in trust for the granddaughter during her lifetime with a similar provision as to its disposition after her death. Held, that as under the eleventh and residuary clauses, the gift over was contingent on the death of the meant those who by the laws of distribution, granddaughter, the words "my lawful heirs" would in such contingency, be the testator's heirs, and under the rule that words occurring more than once in a will should be presumed to be used always in the same sense, unless a contrary intention appear by the context, or unless the words be applied to a different subject, such words had the same meaning in the twelfth clause and thereunder those who would have been the testator's heirs had he left no issue, were entitled to one-half of the trust fund. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1090-1099; Dec. Dig. 506.] 2. WILLS 506-CONSTRUCTION-DESIGNATION OF DEVISEES OB LEGATEES "HEIRS"LAWFUL. A gift of personalty to "heirs," whether to one's own heirs or to the heirs of another, is a gift to those who would be entitled to take un. der the statute of distribution, and in the same the property had come to them as intestate esmanner, and in the same proportions, as though tate, in the absence of any words in the will, showing that the word "heirs" is used in a different sense, and the use of the word "lawful" before the word "heirs" makes no difference in legal effect. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1090-1099; Dec. Dig. 506. For other definitions, see Words and Phrases, First and Second Series, Heirs.] 3. WILLS 524-CONSTRUCTION-GIFT TO A CLASS-TIME FOR DETERMINATION. A will gave property upon the trust that the fund and the income and interest arising thereon should be used as required for the support of the testator's mother during her life, death, the testator gave one-half of so much of and to defray her funeral expenses. At her the fund as should be remaining to his lawful heirs. Held, that as the principal of the trust as well as the income and interest was to be used as required for the support of the mother, and it was only so much as remained that was given to the heirs, futurity was annexed to the substance of the gift, the vesting was suspend [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1116-1127; Dec. Dig. 524.] 4. WILLS 450-CONSTRUCTION-GIVING EFFECT TO WHOLE WILL. Words in a will are not to be treated as a nullity, but are to be construed if possible, in a way to give them effect. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 966; Dec. Dig. 450.] Appeal from Washington County Court, William H. Taylor, Judge. In the matter of the estate of E. M. Irish, deceased. From a decree of the county court, on appeal from probate court, construing the will of the decedent, Helen Harlow appeals. Affirmed. Argued before POWERS, C. J., and MUNSON, WATSON, and HASELTON, JJ., and WATERMAN, Superior Court Judge. F. L. Laird, of Montpelier, and J. W. Redmond, of Newport, for appellant. Wm. B. C. Stickney, of Rutland, for appellee. no issue surviving him, the said nephew and nieces now in life, would have been the testator's only heirs at law at the time of his decease, except the sister and the niece, who subsequently died as before stated. The testator's mother survived him several years, dying on February 25, 1900. After her decease, the trustee's account under the aforementioned clause of the will being rendered, the probate court decreed one-half of the trust fund remaining to the granddaughter, Helen Harlow, and the other one-half to the brothers and sisters of the testator, or to the representatives of the deceased brothers and sisters. On appeal by the granddaughter, the case was heard in the county court, resulting in an affirmance of the decree, and it is here on her exception. Concerning the one-half of the trust fund decreed to the granddaughter, no question arises. But the granddaughter contends that since she was, at the time of the death of the testator, and now is, his sole "lawful heir,” she is entitled under that clause of the will to a decree giving her the other one-half also, WATSON, J. [1] E. M. Irish died testate while the representatives of the testator's deon September 17, 1895, aged 56 years. By ceased brothers and sisters claim that by said the twelfth clause of his will, in case his clause they are entitled to one-half of the mother, Lucy McClintock, should survive him, fund, as decreed by the court below. This prehe gave and placed in the care of a trustee sents the single question: In what sense did the sum of $4,000 upon trust that said sum the testator use the phrase "my lawful heirs" and the income and interest arising thereon in making that bequest? should be used and expended as needed and required for the support of the said mother for the term of her natural life, and to defray the expenses of her funeral and burial, and so much of said sum with the accrued interest thereon, as should be remaining at the decease and burial of the said mother, the testator gave to be paid by the trustee as follows: "One-half thereof to my granddaughter, Helen Harlow and her heirs, and the other one-half thereof to my lawful heirs." In the statement of facts filed, it is agreed in effect that the testator executed the will in question on August 23, 1895, when he was sick in bed with the sickness which 25 days afterwards caused his death; that he left surviving him his mother, but no father, no widow, no children and no issue except his granddaughter, Helen Harlow, who was then about 3 years of age, and is the daughter of Addie Harlow, the only child of the testator; that he left surviving him one sister, who died in 1906, leaving no will, no issue and no husband surviving her; that he left surviving him one nephew and five nieces, the children of his deceased brothers; that one of these nieces died prior to the death of the testator's mother, leaving no will, no husband, and no issue surviving her. It is fur ther agreed that had the testator died intestate, the said Helen Harlow would have been and would now be his sole heir at law; that W. E. Harlow, the father of Helen, was living at the time the will in question was made, and is now living; that had the testator left The testator is presumed to have known, at the time of making his will, that the sole heir of his granddaughter was her father, W. E. Harlow, and that this would be so certainly until she reached the age of maturity, except in the event of her father's death. And in that event while she remains single, any relatives she may have, other than through her father, are too remote to be noticed in determining the question before us. In the language of Chief Justice Field in Welch v. Brimmer, 169 Mass. 204, 47 N. E. 699: "There is nothing in the will indicating that the testator contemplated the possibility of marrying again and having children." [2] It is a settled rule that a gift of personalty to "heirs" merely, whether to one's own heirs or to the heirs of another, is primarily to be held to be those who would be entitled to take under the statute of distribution, and to indicate, when there are no words in the will showing that the testator used the word "heirs" in a different sense, that they are to take in the same manner and in the same proportions as though the property had come to them as intestate estate of the person whose heirs they are called. Hodges v. Phelps, 65 Vt. 303, 26 Atl. 625. The use of the word "lawful" before the word heirs" in the phrase particularly under consideration, makes no difference in legal effect. Simpson v. Ashworth, 6 Beav. 412; Mathews v. Gardiner, 17 Beav. 254. See, also, In re Tucker's Will, 63 Vt. 104, 21 Atl. 272, 25 Am. St. Rep. 743. It will be seen that by the ninth clause of the will, the sum of $15,000 was given and been followed, some of which we mention: placed in trust for the use of the granddaugh- In re Birks [1900] 1 Ch. 417; Pease v. Corter, she to receive a part of the principal at the age of 18 years (by the tenth clause) a further part of the principal at the age of 30 years, and the remaining part thereof when she arrives at the age of 40 years. The eleventh clause provides: "In case of the decease of the said Helen, before she shall arrive at the age of forty years, then the aforesaid payments are to be made to her lawful issue in equal shares and so to the heirs of such issue, but in case no such issue, or children of such issue, shall survive the said Helen, then the said fund or so much thereof as shall be remaining, is by me given to, and is to be paid, one-half thereof to the lawful heirs of the said Helen, and the other one-half thereof to my lawful heirs." By the twentieth (residuary) clause, the residue and remainder of the estate, not otherwise disposed of, is given and placed in trust for the said Helen, to have the interest and income thereof during her lifetime, and at her decease. the estate so held in trust is given to her lawful issue, in equal shares, and to the heirs of said issue: "But in case no such issue, or children of such issue, shall survive the said Helen, then the said residue and remainder of my said estate is given to, and is to be paid, one-half thereof to her lawful heirs, and the other one-half thereof to my lawful heirs." Thus under the eleventh clause the remaining portion of the fund there mentioned, and under the residuary clause the residue and remainder of the estate, each in a certain contingency, and under the clause in question the trust fund at the termination of the life interest are severally disposed of by moieties; in the first and second instances, one moiety is given to a class comprised of the "lawful heirs" of said Helen, and in the third instance, one moiety is given to "Helen Harlow and her heirs," while in every instance the other moiety is given to a class described by the testator in exactly the same words, "my lawful heirs." nell, 84 Conn. 391, 80 Atl. 86; Mathes v. Smart, 51 N. H. 438; Stewart v. Stewart, 61 N. J. Eq. 25, 47 Atl. 633; In re Duckett's Will, 214 Pa. 362, 63 Atl. 830; Roskrow v. Jewell, 154 Iowa, 634, 135 N. W. 3, Ann. Cas. 1914B, 63. In all three instances the words "my lawful heirs" are applied to the same subjectmatter, that is, the disposition of parts of the testator's estate; and not only does nothing appear showing an intention to use them in a different sense in the clause in question from what they are used in the other two, but the presumption that they were used in the same sense is strengthened by the fact that in disposing of the trust fund at the determination of the life interest, instead of employing a single expression indicating a purpose to give the remaining portion, as a whole, to his granddaughter and her heirs, the testator divided it into moieties, and used different forms of expression in giving them separately, one in terms to the granddaughter and her heirs, and the other to "my lawful heirs,” using the same form and the same words as in the other two instances noted. Had the testator's purpose been to give the whole to Helen and her heirs, it was a very simple matter so to declare, as he did in respect to the moiety thus given. We think it is clear from the will and the circumstances surrounding the making of it, that the testator used the phrase "my lawful heirs," in the clause in question, in the same sense as he used it in the eleventh and in the residuary clauses, and that he intended by that phrase to include only such persons as would be his "lawful heirs," had he left no issue surviving him. [3, 4] But in determining who such "lawful heirs" are, it is necessary to look at the time when the gifts over became vested, a question more or less discussed by counsel on both sides. Here the principal of the Under the eleventh and under the residuary clauses respectively, the gift is over to the trust, as well as the income and interest aristwo classes only in the contingency of the ing therefrom, was to be used and expended as needed and required for the proper and decease of Helen, leaving no lawful issue, comfortable support of the testator's mother or children of such issue, surviving her. This for the full term and period of her natural being so, it is clear that the two classes there life, and to defray the expenses of her fuintended by the testator are wholly differ-neral and burial. It was only so much of ent, and it is equally clear that by the phrase said sum with the accrued interest thereon "my lawful heirs," the testator there meant as should be remaining at the termination of those who by the laws of distribution would in such circumstances be his heirs. This manifestly being the intended meaning of that phrase in those two dauses, we think that in the circumstances of this case, Mr. Jarman's eighteenth cardinal rule of construction (3 Jarm. Wills [5th Am. Ed.] 707) is applicable: "That words, occurring more than once in a will, shall be presumed to be used always in the same sense, unless a contrary intention appear by the context, or unless the words be applied to a different subject." That this rule is of common application is the trust-and it might be much, or little, or none at all-that was given over in moieties. Futurity is annexed to the substance of this gift, and consequently the vesting was suspended until the time when the bequest should take effect (Jarm. Wills [5th Am. Ed.] 453); and the bequest to the class "my lawful heirs" is only in favor of those who at that time came within the description. Goebel v. Wolf, 113 N. Y. 411, 21 N. E. 388, 10 Am. St. Rep. 464; In re Allen, 151 N. Y. 243, 45 N. E. 554. Moreover, we think the words "for the time being" were used by the tes erence to those who should answer the de- [attached. Counsel for garnishee, by peti scription of the class when the bequests tion, asked leave of court to appear specially should become effective. See Moss v. Dunlop, for the purpose of filing an affidavit and Johns. Eng. Chy. 490. No other meaning of moving for a rule to show cause why the these words is apparent, and they are not attachment should not be dissolved and the to be treated as a nullity. They are to be garnishment process quashed. Leave grantconstrued, if possible, in a way to give them ed and the issuance of the rule and service effect. Richardson v. Paige, 54 Vt. 373. thereof were waived. "One of the most helpful principles of construction in ascertaining the intention of the testator is to give force and effect to every clause of the will. It is not to be presumed that he used an unnecessary word, or one to which no proper force can be given." Shepard's Heirs v. Shepard's Estate, 60 Vt. 109, 14 Atl. 536. The record does not show that the decree below is not in accordance with the views here expressed. In the affidavit, the president and the treasurer of the garnishee company, respectively, depose and say, inter alia: "That the said the Equitable Guarantee & Trust Company is a corporation of the state of Delaware, having the power, by the laws of the said state, among other things to receive deposits of money, discount bills, notes and other evidence of debt and to transact a general banking business, which said powers are actually exercised by the said corporation and it is, therefore, a bank and not subject to the attach Decree aflirmed. To be certified to the pro- ment laws of the state of Delaware as by the bate court. (5 Boyce, 409) STERLING v. TANTUM. (Superior Court of Delaware. New Castle. Feb. 12, 1915.) 1. BANKS AND BANKING 2-ATTACHMENTTRUST COMPANIES "BANK." The conferring on a trust company, after its creation, of full banking powers, makes it a "bank," within Rev. Code 1915, § 4120, mak ing all corporations, except banks, subject to the attachment laws; and this without regard to the department in which are held the funds sought to be reached. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 2; Dec. Dig. 2. For other definitions, see Words and Phrases, First and Second Series, Bank.] 2. TRUSTS 151-PROPERTY SUBJECT TO AT exemption set out in section 4120 of the Revised Code of Delaware (1915) page 1877." For the purpose of the hearing upon the rule certain facts were agreed upon by counsel, among them, being: "That the sum of money sought to be attached in this proceeding in the hands of the equitable Guarantee & Trust Company was not at the time of the laying of the said attachment in the possession of the said company as a deposit of money made with it in its banking department." But "it is not agreed that there is any sum of money in the hands of the garnishee due to the defendant in the foreign attachment case, and the sole question to be decided by the court is whether the Equitable Guarantee & Trust Company is, under the facts agreed upon exempt from the operation of the attachment laws of the state of Delaware by virtue of the act of assembly known as section 4120 of the Revised Code" (1915) which provides that "all corporations doing business in this state, except banks, saving institutions and loan associations, are subject to the operation of the attachment laws of the state of Delaware, as provided in the case of individuals. " 1. That the writ of foreign attachment issued, and the service thereof was duly made upon the Equitable Guarantee & Trust Company, garnishee. 2. That the said company was incorporated by an act of the Legislature of the state of Delaware, passed at Dover on the twentythird day of April, 1889, etc. (copy annexed); to which act a supplement was passed on the twenty-fifth day of April, 1889, etc. (copy annexed). 3. That the said company did, on the fifth day of February, A. D. 1909, duly file an acceptance of the Constitution of the state of Delaware, etc. (copy annexed); that thereafter on the thirteenth day of February, 1909, the said company did procure a renewal of its charter in perpetuity by filing, etc. (copy | 1915. Counsel for the plaintiff stated that annexed). he had examined the special declaration, and that he would, upon the filing thereof move for judgment thereon. Copies of the declaration were thereupon handed to the court for inspection. 4. That an act entitled "An act to amend an act entitled 'An act to incorporate the Equitable Guarantee & Trust Company' and to make perpetual that company's charter" was thereafter passed by the General Assembly, etc. (copy annexed). 5. That from the time of its incorporation in 1889 down to date, the said company has been carrying on the business authorized by the provisions of its charter including accepting and executing trusts, acting as trustee, investing money, receiving money, jewelry and personal property generally on deposit for safe keeping, acting as receiver, assignee, guardian, executor, administrator or other fiduciary, acting as registrar of stocks and bonds and as surety, carrying on the business of selling and managing real estate and collecting rents for property owners generally. 6. That since the fifteenth day of March, A. D. 1909, the said company has been carrying on a general banking business in addition to its other functions as mentioned in paragraph 5 hereof, including discounting bills, notes and other evidences of debt, receiving deposits of money, buying foreign coins and buying and selling bills of exchange. 7. That in the performance of its various functions and the carrying on of the businesses hereinbefore mentioned, the said company has its business divided into at least three departments, to wit, its trust department; its banking department; and its real estate department, the employés in each of these several departments having their several duties and functions in their own departments, though under the supervision and control of the same general officers of the company; that each of the above mentioned departments keeps its own books of account and occupies its own allotment of office space in the building of the Equitable Guarantee & Trust Company. It was agreed that all exhibits annexed were to be taken as a part of the statement of facts. (March 15, 1915.). It was suggested that the Superior Court might consider that the question of law which would be raised thereby, in the event it should be necessary to file it, should also be decided by the court in banc. Counsel for the plaintiff and for the garnishee suggesting it, and consenting thereto, the court in banc decided to hear not only the question which the Superior Court had directed to be heard, but also the question which the filing of the special declaration would raise. The special declaration set out in detail and at length, the creation of the trust fund in which the defendant was interested; the time or period of its termination; the appointment of the garnishee as trustee upon the death of the last survivor of the original trustees; and that the parties in interest being entitled to the principal of the trust fund, the trustee garnishee passed its account before the Chancellor, the said parties being present and heard, and not objecting, and the account was approved by the Chancellor, reserving only the question of commissions for the trustee; that the trustee then filed a bill before the Chancellor, asking that the defendants therein-the parties in interestbe required to interplead and state their claims, and that the court instruct the trustee as to the distribution of the trust fund, and for allowance of commission; that the defendant in this action filed his answer with an agreement annexed signed by himself and others entitled, fixing and agreeing upon the amount due each in the distribution; that the Chancellor made a decree, taxing costs, fixing commissions and counsel fees, and directing payment to the parties to the agreement, in accordance therewith-the share to be paid to the defendant in this action being $6,653.65. Argument of Counsel for Plaintiff on the Rule. From 1889 to 1909 the company was indis The rule came on to be heard before the putably subject to the attachment laws in court in banc. all respects except as to deposits of money made with it of the same character as those made with banks. The express exemption of its deposits of money necessarily denies any claim that it could be otherwise exempt. Argued before PENNEWILL, C. J., and BOYCE, CONRAD, RICE, and HEISEL, JJ. Before beginning the argument, counsel for the garnishee informed the court that the trust funds due Leon B. Tantum, the defendant in this action, were practically ready for distribution; that there are no other funds in the hands of the garnishee due the defendant; and that in the event the court in banc should hold that the garnishee is subject to the attachment laws of the state, they would immediately, upon the opinion of the court being certified to the Superior Court, enter a general appearance in the latter court and file a special declaration (ready for filing) under section 4127 of the Revised Code of money. In 1909 (25 Del. Laws, c. 277) it was by an amendment to its charter "vested with banking powers." Banking powers are commonly defined (as in the Revised Code of 1915, § 1918) as powers to discount bills and evidences of debt, to receive deposits of money, to buy gold and silver bullion and foreign coins, to buy and sell bills, notes and other evidences of debt and to issue bills, notes of other evidences of debt for circulation as |