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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 interAccording 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 aggravaises where the liquor alleged to have caused the fine tion, 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 comthe 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 punisbment 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 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 sball 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 v. Root, tion in wbole 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 permicting 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 compensate 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 inflicts 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 ike 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 cansed intoxication from which actual damages to be measured by the principles of the com- damages were sustained, it appeared that he sold in mou law? Or to create not only a new cause of action, violation of law,or to a person whom he kuew to be far but also a new measure of damages?
gone in the habit of intemperance, or who was already All statutes are to be construed with reference to obviously under the influence of liquor, or who babitthe principles of the common law in force at the time
ually squandered in dissipatiou 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 sense when they appear in a stat- plary damages. Also in an action against the owuer 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, knowing 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 violeuce 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
ferred, and in such a case the Legislature migbt well have intended to allow exemplary damages as a pun. ishment for the violation of the statute, so that Schneider v. Hosier, supra, is not inconsistent with the other cases cited.
No other case to which our attention has been called has sanctioned the recovery of exemplary damages without proof of aggravating circumstances.
We think that the charge as given, and that the refusal to charge as requested, were erroneous, and that the judgment and order appealed from should be reversed, and new trial granted, with costs to abide event.
Judgment and order reversed, and a new trial granted, with costs to abide the event.
Hardin, P. J., and Follett, J., concur.
TOWN-LIABILITY FOR ACT OF BOARD OF
MASSACHUSETTS SUPREME JUDICIAL COURT.
the defendant was directly or indirectly connected. If the sale of three glasses of whiskey to the same person within a few minutes would authorize an award of exemplary damages in a case against a tenant, it would not in a case against the landlord without further proof. The person against whom exemplary damages are allowed must be comuected with and in some way responsible for the aggravating circumstances that authorize the award. As said by the court in Davis v. Standish, supra, "the statute has not said in what cases punitive damages may be given, and we must therefore look to the common law.” And as already appears, such damages are allowed at common law only to punish a willful wrongdoer.
In Franklin v. Schermerhorn, 8 Hun, 112, it appeared that the plaintiff's husband was injured, and lost a 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 given only when there are circumstances of abuse or aggravation proved on the part of the vendor of the liquor.
In Ner v. McKechnie, 95 N. Y. 632, the Court of Appeals held that when the defendant sold the liquor causing the intoxication without a license, it was proper to submit the question of exemplary damages to the jury. The decision is placed expressly upon the ground that there was evidence upon which exemplary damages might be awarded.
Under similar statutes the courts of Michigan, Nobraska and Illinois require circumstances of abuse or aggravation to be proved before exemplary damages are allowed even against the seller.
In Kreiter v. Nichols, 28 Mich. 496–9, the court held that exemplary damages should not be awarded unless the act of giving or selling the intoxicating drinks was willful, wanton, reckless or otherwise deserving of punishment beyond what the requirement of mere compensation would impose.
In Ganssly v. Perkins, 30 Mich. 492-5, the court said: “The actual damages should be as nearly coinmensurate with the actual injuries as the nature of the case will permit; and exemplary damages should be given in those cases, and only in those cases, where the plaintiff has some personal right to complain of a wanton and wilıful wrong, which the wrongdoer, when he comunitted it, must be regarded as having committed against the plaintiff herself, in spite of the injury he must have known she was likely to suffer by it."
In Roose v. Perkins, 9 Neb. 304, 315, it does not appear whether there was any proof of aggravating circumstances or not, but the refusal of the trial court,to instruct the jury that exemplary damages could not be recovered, was held error.
In Meidel v. Anthis, 71 Ill. 241, 243, it was held that exemplary damages could be allowed, not by way of punishment, but as an example, and that aggravating circumstances must be shown.
In Bates v. Davis, 76 ml. 222, the judgment was reversed solely becausc the trial court had allowed the jury to award exemplary damages.
In IIackett v. Smelsley, 77 Ill. 109, exemplary damages were allowed, but the evidence tended to show that the defendants sold to a habitual drunkard.
The Supreme Court of Ohio, under a statute creating a right of action “against persons who shall by selling intoxicating liquors, contrary to this act, have caused the intoxication, etc.,
for all damages actually sustained, as well as exemplary damages." held that the jury might assess exemplary damages without proof of actual malice or other special circumstances of aggravation. Schneider v. Hosier, 21 Ohio, 98, decided under the act of May 1, 1854; S. & C. 1, 432.
Where the sale is unlawful bad motives are to be in
SPRING V. INHABITANTS OF HYDE PARK. A board of health took possession of plaintiff's house and
subjected it to hospital regulations until a patient therein recovered from the small pox. In an action against the town to recover damages therefor, held, that the board acted without authority, and that defendant was not
liable. THIS was an action to recover damages alleged to
have been sustained by the plaintiff in consequence of her house in Hyde Park being seized, used, and controlled by the board of health of the town, and subjected to hospital regulations for six weeks and one day. The following facts appeared: The plaintiff was the owner and occupant of a house in the defendant town, a tenant occupying a part of the house. The small-pox broke out in the tenant's family, and one of the patients being too sick to be removed, the board of health claiming the right so to do, under its statutory powers, took possession of the house and subjected it to hospital regulations until the recovery of the patient. The declaration was originally one of tort, but was amended by adding a count in contract.
Seth J. Thomas and Edmund Davis, for plaintiff.
DEVENS, J. The overseers of the poor of the cities and towns have always been held as public officers, performing the public duties with which they are charged upon their own responsibility. As they are engaged in performing the duty which the statutes had imposed upon the towns of relieving poor persons falling into distress within their limits, they may therefore incur expenses or make contracts with law. ful persons for which the towns would be liable. 13 Metc. 19; 106 Mass. 262. The statutes creating or authorizing the creating of boards of health have in a similar way provided for boards, which in the per formance of the important duties imposed upon them act as public officers but on behalf of the town by whom they are chosen or appointed. P. S., cb. 80. While in terms it is not provided by whom the expenses they are authorized to incur are to be paid, or the contracts they are authorized to make are to be performed, it is necessarily implied that when expenses are incurred or contracts are made within the scope of their authority, the town is made liable therefor. 2 Cush. 52; 98 Mass. 431.
Careful provision has also been made for the ulti. mate liability for the expenditures which may be made by any town in the care of infected persons for the protection of the publio. P. S., ch. 80, $ 400. We
do not therefore doubt that for expenses lawfully in- board may lawfully impose in regard to the managecurred, or absolutely lawfully made by the board of ment of property and the conduct of persous in relahealth 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 scope 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 publio 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 ciroumstances 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 sodeclaration, which is the only one before us, and is cured, and the owner who is subject to such regulatermed one in contract, alleges that the board of health tions bas 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 buracting 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, where 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 accomoccupied by any leave of the plaintiff, or made any ex. panied by all appropriate safeguards, and provipress 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 imthe board of health has authority, where a persou in- portant public purpose, and just compensation is profected with a contagious disease, too sick to be re- vided for. Independently of these provisious 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. Public Stat., ch. 26, $$ 16, 17; ch 80, $$ house as a hospital, it had no authority so to do. The 40, 41, providing for the safety of the inhabitants defendant town is uot responsible for their actions. where a person is infected with a sickness, dangerous Demurrer sustained. to public health, contemplate that a contract will
NOTE.-In Bamber v. City of Rochester, 6% How. Pr. be made for the care of a person too sick to be removed
103, it was held that the defendant was not liable or as by furnishing him with nurses, necessaries, attend
responsible for the acts of its board of health in issu. ance, etc., and further that the place where 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 no authority to take possession 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. 80, $ 75, that the plaintiff relies, which provide that
WILI-LIFE ESTATE-POWER OF SALE. where a disease dangerous to public health breaks uut, 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 bouse 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 sons 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 danger to public health may be averted.
ing on pleadings and proofs. Opinion states the The case of Lynde v. Rockland, 66 Me. 314, is strikingly similar to that at bar.
E. W. Strong, for complainants. Had the power of seizing and appropriating property been conferred on the board of health acting by
RUNYON, Chancellor. This suit is brought to obits own authority,it can hardly be doubted but what it ceased, late of Middlesex county, who died September
tain a construction of the will of Thomas Snell, dewould 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 board of health to take possession of property and
the testator, after directing payment of all his debts
and liabilities, gives to his wife for her life, his farm impress persons also in taking care of the sick and in
and household furniture, live stock and farm imple. fected, and protecting the community. For such a contingency the statutes have made ample provisions.
ments, and every thing movable or immovable in and While the regulations and restrictions which the
* S. C., 38 N. J. Eq. 119.
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 annum. 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 person 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 executorz, in trust for the benefit of dispose of and pay over-then a power of sale is cobhis 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 pripto bis executors, in trust for the benefit of "said heirs erty, they may lawfully convey the farm at once. The at law" (his 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 es. ties," 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 reauntil such division or distribution shall take place, the son, whether prospective rise in value, benefit of infant 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
not to pay away any portion of it except in property before her death was not contemplated by the case of the illness or deat of any of his said | him, and it seems clear that had he contemplated it, heirs at law,” in which event they are to have power
be 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 corsent. 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 bare 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 grouud 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 coutingeucy cannot be ecutors, 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 Styer v. Freas, 15 Penn. St. 339. Mr. Ram, in bis 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 ject 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 The e xecutors undoubtedly have 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 a land and leaseholds in New York, with express power life estate to his wife with remaiuder 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 bis 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 in 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 Do 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 iu 1871 and has never since (a period of about thirteen years) been heard from, although much effort bas been made to obtain tidings of him. He was then unmarried. If liv. iný, be is now about thirty-four years old. Thomas Snell aud Maltby G. Lane are the executors. They are desirous of sellitg 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 tbat price. In my judgment, the executors, with the consent of the widow and her release of her life estate, have power to sell the property uow.
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; Hampton v. Nicholson, 8 id. 4.3.
In Ismam v. Del., Lack. & West. R. Co., 3 Stockt. 227, lands were conveyed 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. In 1836, before A. and S. had married, they with the trustee reconveyed the lands to the original grantor. A. and S. afterward married, and in 1856, both bad children. Held, that the reconveyance in 1836 was void, but capable of con. firmation by the trustee after 1810. See Hetzel v. Barber, 09 N. Y. J.
In Fairly y. Kliue, 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 children, 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 [*350), 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. 126, 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 on trust upon her death, to sell and divide the purchase-mouey among the children of the marriage on their respectively attaining twenty
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 performance would not be decreed.
Iu Henry v. Simpson, 19 Grant's Ch. 522, a testator gave to his wife during her life all the reuts and issues of his property for her sole use; then that his property should be divided into three shares-one 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 absolutely, 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. Held, that the lands could not be sold during the life-time of the wife even with her consent.
In Davis y. Howcott, 1 Dev. & Bat. Eq. 460, there was a devise of the use of certain lands to testator's widow during the term of ber 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 land, 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 held 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. Held, 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 Ilall v. McLaughlin, 2 Bradf. 107, testator devised 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 compel the executor to sell, was dismissed. Quære, Under such circumstances, who is entitled between the death of the widow and the time when the youngest son attains twenty-one? See Levet v. Needham, 2 Vern. 138; Mansfield v. Dugard, 1 Eq. Cas. Abr. 195; Carter v. Church, 1 Ch. ('as. 113; Boraston's case, 3 Co. 19; Lomax v. Holmeden, 3 P. Wms. 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 Minn. 180; Williams v. Murrell, L. R., 23 Ch. Div. 360.