fixed, or should be, if the provisions of the statute are observed. The taxpayer can then determine whether he is aggrieved by the action of the supervisors; and the act of 1834 contemplates that, if he is aggrieved "by such rate or assessment," he shall "apply by petition to the next court of quarter sessions of the respective county" for relief. The "next court of quarter sessions" is the court which first convenes in regular session subsequent to the date when the law requires the rate or assessment to be fixed by the supervisors. The purpose of the Legislature was to give the taxpayer a speedy and summary remedy for his grievances. It is necessary that the taxing officers act promptly in levying and collecting taxes, and to accomplish the purpose it is necessary that any objection by the taxpayer to the action of the supervisors should be speedily disposed of. This could be done, and was intended to be done by requiring the taxpayer to apply to the next court of quarter sessions after the tax was levied. It is absolutely necessary that this interpretation of the act of 1834 should prevail if the taxpayer's rights are to be protected and enforced under the act of 1905. By that statute the taxpayer is entitled to an abatement of 5 per cent. if he pays his taxes before June 1st of the year, and is subjected to a penalty of 5 per cent. if they are not paid until after November 1st of the year. The act also requires the supervisors to give the taxpayer an opportunity to work out his work tax. It is therefore apparent that "the next court of quarter sessions," to which a taxpayer may appeal for an alleged incorrect or illegal levy, is the court immediately succeeding the levy of road taxes made in March. We think it clear that the remedy invoked by the plaintiff company in this proceeding is the only one which can give adequate relief for the injury or wrong threatened it, and therefore the bill must be sustained. If our conclusion deprives the township of a large part of its revenues by permitting the plaintiff company to escape payment of its road taxes on the valuation of 1907, the loss is attributable to the statute, the provisions of which are clear and mandatory. We cannot assume the functions of the Legislature, and, by construction, furnish a remedy which lies solely with that department of the government. It is our province to construe, and not to make, the law. The decree is affirmed. (104 Me. 333) In re RUGGLES' ESTATE. (Supreme Judicial Court of Maine. Sept. 10, 1908.) 1. WILLS (§ 524*)-CONSTRUCTION-DESIGNATION OF BENEFICIARIES-GIFT TO A CLASS. When a testamentary gift is made to a class of persons, to take effect in possession im mediately, only those take who constitute the class at the death of the testator, when the will becomes operative, unless a different intention appears from the will or from circumstances proper to be considered. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1116-1127; Dec. Dig. § 524.*] 2. WILLS (§ 523*) - CONSTRUCTION-RESIDUARY BEQUEST. The will of a testatrix contained the following residuary clause: "All the rest, residue and remainder of my estate I give, devise and bequeath to my heirs and the heirs of my late husband, Hiram Ruggles, those standing in the same degree of relationship either to myself of said Hiram to share alike according to the laws of descent in this State.' Held, that the manifest intent of the testatwo equal parts, one part to go to her heirs and trix was to divide the residue of her estate into the other part to go to her husband's heirs, and that the persons who are to take as such heirs, and the proportions which they are to take, are to be determined "according to the laws of descent in this state." [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1115, 1142; Dec. Dig. § 523.*] 3. WILLS (8_506*)-CONSTRUCTION-DEVISE TO HEIRS OF DECEASED HUSBAND. ing neither issue, father, mother, brother, nor The said Hiram Ruggles died testate, leavsister, but the descendants of six deceased brothers and sisters. Held, that the persons entitled to the one-half of the residue devised to his heirs "according to the laws of descent in this state" are determined by Rev. St. 1903, c. 77, § 1, rule 6, under which it descends to his next of kin in equal degree." [Ed. Note. For other cases, see Wills, Cent. Dig. § 1091; Dec. Dig. § 506.*] 4. WILLS (§ 532*)-CONSTRUCTION OF BEQUEST -"NEXT OF KIN IN EQUAL DEGREE." At the death of the testatrix there were living 11 nieces and nephews and 8 grandnieces and grandnephews of the said Hiram Ruggles. Held, that bis "next of kin in equal degree" are his 11 nieces and nephews living at the death of the testatrix, and that they are to take the onehalf of the residue devised to his heirs per capita, and not per stirpes. Dig. §§ 1145, 1146; Dec. Dig. § 532.*] [Ed. Note.-For other cases, see Wills, Cent. (Official.) Report from Supreme Judicial Court, Penobscot County, at Law. Appeal of Mary Seavey Fairbanks from a decree of the probate court ordering distribution of the residue of the estate of Lydia H. Ruggles. Case reported. Decree of judge of probate affirmed. The decree was as follows: One-eighth thereof to each of the two sisters of the testatrix; one twenty-fourth thereof to each of her six nieces and nephews; one twenty-second thereof to each of the eleven nieces and nephews of Hiram Ruggles, the deceased husband of the testatrix. The case came on for hearing at the April term, 1908, Supreme Judicial Court, Penobscot county, at which time and by agreement of the parties it was reported to the law court, that court "to render such judgment as the law and the evidence require." Argued before SAVAGE, PEABODY, CORNISH, KING, and BIRD, JJ. E. C. Ryder and H. L. Fairbanks, for ap- | held that a devise or bequest to the "heirs” pellant. Matthew Laughlin, for appellees. KING, J. Lydia H. Ruggles devised and bequeathed the residue of her estate in the following language: "All the rest, residue and remainder of my estate I give, devise and bequeath to my heirs and the heirs of my late husband, Hiram Ruggles, those standing in the same degree of relationship either to myself of said Hiram to share alike according to the laws of descent in this State." The testatrix died in November, 1905, leaving surviving her two sisters, also a niece and two nephews, children of a deceased brother, and three other nieces, children of another deceased brother. Hiram Ruggles died in May, 1889, testate, leaving neither issue, father, mother, brother, nor sister, but the descendants of six deceased brothers and sisters. At the time of the death of testatrix there were living eleven nieces and nephews, and eight grandnieces and grandnephews, whose parents were deceased, of Hiram Ruggles. Upon petition for order of distribution of the residue of the estate the judge of probate decreed one-eighth thereof to each of the two sisters of testatrix, one twenty-fourth to each of her said six nieces and nephews, and one twenty-second to each of the eleven nieces and nephews of Hiram Ruggles. From this decree Mary Seavey Fairbanks, a grandneice of Hiram Ruggles, appealed, assigning as reasons therefor (1) that the residue of the estate should not be divided equally between the heirs of the testatrix and the heirs of Hiram; (2) that the heirs of Hiram should not be determined as of the date of the death of the testatrix but of the date of his death; (3) that the heirs of Hiram were not his nephews and nieces to the exclusion of his grandnephews and grandnieces whose parents were deceased; (4) that the heirs of Hiram should not take per capita but per stirpes. The case is reported to this court for determination. The chief question presented is whether the testatrix in the residuary clause of her will made a devise to her heirs and the heirs of her husband as individuals to take per capita or a devise in equal parts to her heirs and to his heirs as two classes. In Daggett v. Slack, 8 Metc. (Mass.) 450, Shaw, C. J., states the rule thus: "A devise to heirs, whether it be to one's own heirs or to the heirs of a third person, designates not only the persons who are to take, but also the manner and proportions in which they are to take; and that, when there are no words to control the presumption of the will of the testator, the law presumes his intention to be that they shall take as heirs would take by the rules of descent." In Lord v. See. of an individual without addition or explanation vests the property in the persons who would take it in case of intestacy under the laws of descent and distribution. also, Talcott v. Talcott, 39 Conn. 186; Woodward v. James, 115 N. Y. 359, 22 N. E. 150; Richards v. Miller, 62 Ill. 417; Holbrook v. Harrington, 16 Gray (Mass.) 102; Bassett V. Granger, 100 Mass. 348; Townsend v. Townsend, 156 Mass. 454, 31 N. E. 632; Allen v. Boardman, 193 Mass. 284, 79 N. E. 260, 118 Am. St. Rep. 497. In the residuary clause of her will the testatrix devised the residue of her estate "to my heirs and the heirs of my late husband, Hiram Ruggles." Those words, without addition or explanation, would be construed, according to the well-recognized rules of testamentary construction and the authorities, as a devise in equal parts to two classes-the persons who are to take and the manner and proportions in which they are to take under each class to be determined by the rules of descent. Do the added words "those standing in the same degree of relationship either to myself of (or) said Hiram to share alike according to the laws of descent in this state" indicate a different intention of the testatrix? We think not. On the contrary, those words make it manifest that the testatrix did not intend for her heirs and the heirs of her husband to take equally as individuals because she expressly provides that they are to share "according to the laws of descent in this state," a provision that cannot be complied with if they are to share equally per capita. But, granting that the laws of descent are not to be disregarded, it is suggested that the words "those standing in the same degree of relationship either to myself or said Hiram to share alike" indicate an intention of the testatrix to dispose of the residue of her estate to her heirs and Hiram's heirs as if they were all her heirs, but "according to the laws of descent in this state." Giving that interpretation to the language, it will be found that the result suggested by the literal meaning of the words "to share alike" can in no sense be realized, for in such case the nieces and nephews of Hiram, representing different branches of his family, would take shares differing widely in amount. Under one branch of Hiram's family a niece would take one-sixtieth, while under another branch a niece would take one-tenth, being the same share that a sister of the testatrix would take under that interpretation. No reason appears why the testatrix should prefer her husband's relatives so that one of his nieces or nephews should receive as large a share as her own sister. Such a disposition of property is unnatural and not in accord with family ties and affections. The language used does not require such construction. A careful examination of the whole residuary clause of the will satisfies us that the manifest intent of the testatrix was to divide the residue of her estate into two equal parts, one to go to her heirs and the other to her husband's heirs, and that she used the words "those standing in the same degree of relationship either to myself of said Hiram to share alike according to the laws of descent in this state" to make plain her intent that no one of her heirs was preferred over another standing in the same degree of relationship to her, and likewise that no one of Hiram's heirs was preferred over another standing in the same degree of rélationship to him, but that all of her heirs on the one side and Hiram's heirs on the other were regarded by her impartially and were "to share alike," without distinction or discrimination, "according to the laws of descent in this state." (81 Conn. 667) E. L. CLEVELAND CO. v. CHITTENDEN. (Supreme Court of Errors of Connecticut. Feb. 16, 1909.) 1. BILLS AND NOTES (8 467*)-ACTIONS-INDORSEMENT PLEADING. ting out the execution of the note, which is emThe complaint in an action on a note, setbodied in it by reference and annexation as an exhibit, and then adding that it was by the indorsement of defendant transferred to plaintiff, dorsement, in view of the note annexed being will not be construed as alleging a special inindorsed in blank; a transfer being the act by which an owner of a thing delivers it to another with intent to pass title. [Ed. Note.-For other cases, see Bills and Notes, Dec. Dig. § 467.* For other definitions, see Words and Phrases, vol. 8, pp. 7064-7070, 7819.] 2. PLEADING (§ 388*)—IMMATERIAL VARIANCE. Even if the complaint in the action on a note against the maker.pleads a special indorsement, when it was in blank, this is within Practice Book 1908, p. 245, § 149, requiring immaterial variances to be disregarded; the distinction being of no practical importance. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 1308; Dec. Dig. § 388.*1 Fairfield Appeal from Superior Court, County; Joel H. Reed, Judge. Action by the E. L. Cleveland Company against Edgar D. Chittenden. Judgment for plaintiff. Defendant appeals. Affirmed. It is a well-settled general rule that when a testamentary gift is made to a class of persons, to take effect in possession immediately, only those take who constitute the class at the death of the testator, when the will becomes operative, unless a different intention appears from the will, or from the circumstances proper to be considered. Howland v. Slade, 155 Mass. 415, 29 N. E. 631; The plaintiff is the owner for value of a Smith v. Smith, 186 Mass. 138, 71 N. E. 314; note drawn by the defendant to his own orWorcester v. Worcester, 101 Mass. 128, 132; der, indorsed by the latter in blank and by Campbell v. Rawdon, 18 N. Y. 412; 1 Jarman the latter delivered to the plaintiff. on Wills, 286, 287. This rule must be ap-complaint sets out the execution of the note, plied in the case at bar. No question is raised as to the persons entitled to share as the heirs of the testatrix. Hiram Ruggles left neither issue, father, mother, brother, nor sister; consequently the persons entitled to the one-half of the residue devised to his heirs "according to the laws of descent in this state" are determined by Rev. St. 1903, c. 77, § 1, rule 6, under which "it descends to his next of kin in equal degree." At the death of the testatrix there were living eleven nieces and nephews, and eight grandnieces and grandnephews, of Hiram Ruggles. But his grandnieces and nephews, not being related to him in equal degree with his nieces and grandnephews, are not entitled to share under rule 6. Accordingly his "next of kin in equal degree” are his eleven nieces and nephews living at the death of testatrix, and they are to take the one-half of the residue devised to his heirs per capita, and not per stirpes. Davis v. Stinson, 53 Me. 493. The decree of distribution appealed from conforms in all respects with the construction of the residuary clause of the will as herein determined, and the entry must be: The decree of the judge of probate, affirmed with costs. The which is annexed as an exhibit, and then adds that it was by the indorsement of the defendant transferred to the plaintiff, that the plaintiff still owns it, and that it has not been paid. Upon the trial, which involved the determination of defenses unsuccessfully interposed, the plaintiff offered the note in evidence. It then appearing that the indorsement thereon was in blank, its reception was unsuccessfully objected to upon the ground that in that form it was inadmissible to prove the allegation of the complaint. John C. Chamberlain and Elbert O. Hull, for appellant. John W. Banks, for appellee. PRENTICE, J. (after stating the facts as above). The defendant complains because, as he says, the complaint counts upon a special indorsement, while it was permitted to be supported by proof of a blank indorsement. This contention rests, in the first place, upon a severely literal interpretation of the complaint, and one which overlooks the fact that the note with its indorsement thereon was embodied in it by reference and annexation as an exhibit. Pleadings are not to be so construed under our practice act. Price v. Bouteiller, 79 Conn. 255, 257, 64 Atl. 227. This pleading easily yields to the reasonable construction consistent with its manifest purpose and the ends of substantial justice in that it avers that the plaintiff became the holder of the note through its indorsement and delivery to him by the defendant, its maker, with the intention of passing the title thereto. "A transfer is defined to be the act by which the owner of a thing delivers it to another person with the intent of passing the rights he had in it to the latter." Robertson v. Wilcox, 36 Conn. 426, 429. The defendant's contention also overlooks our rule that immaterial variances are to be disregarded. Practice Book 1908, p. 245, § 149. This is an action against the maker. The face of the instrument determines the extent of his obligation. The indorsement is significant only as indicating the plaintiff's right to enforce that obligation as the holder of the note, and the extent of that right; that is, whether it be unrestrictive, restrictive, qualified, or conditional. Gen. St. §§ 4203-4209. The indorsement here set out was neither restrictive, qualified, nor conditional. Such being the case, it was absolutely immaterial to the creation of the relation between the defendant as the maker of the instrument and the plaintiff as its holder, to the character of that relation, and to the determination of the rights and obligations of the parties as between each other through that relation, whether the channel through which in strict legal contemplation the plaintiff's ownership was derived was that of a special indorsement or a blank indorsement, which the plaintiff might at his pleasure transform into a special one, or whether or not a blank indorsement had in fact been transformed into a special one. Whatever distinction could be pointed out is one which lies wholly within the domain of techniques, and is of no practical importance. There is no error. The other Judges con curred. (81 Conn. 626) ALLEN v. LYNESS. (Supreme Court of Errors of Connecticut. Feb. 16, 1909.) 1. EXECUTION (§ 403*)-SUPPLEMENTARY PROCEEDINGS-ACTION. In an action against a judgment debtor to recover for refusing to pay the judgment debt while having property concealed, not exempt from execution under Gen. St. 1902, § 1099, providing for such action, it was unnecessary that the complaint should aver that the action was brought under such section. [Ed. Note. For other cases, see Execution, Cent. Dig. § 1132; Dec. Dig. § 403.*] 2. FRAUDULENT CONVEYANCES (§ 309*) — VALIDITY-INSTRUCTIONS. An instruction that if a conveyance of land by a debtor was not made to a bona fide purchaser for value, the equitable title would remain in the grantor, and his creditors could seize the land to satisfy their claims, was ob Error cannot be assigned on the refusal to comply with a request for instructions presented as a unit, where some of the instructions are inconsistent with the law. [Ed. Note.-For other cases, see Trial, Cent. Dig. 8 660; Dec. Dig. § 261.*] 4. EXECUTION (§ 403*)-SUPPLEMENTARY PROCEEDINGS FRAUDULENT CONVEYANCES PROPERTY CONCEALED. Where, in an action by a subsequent judgment creditor to recover for her debtor's refusal to pay the judgment debt, and for concealing property not exempt from execution, plaintiff's indebtedness arose subsequent to the conveyance alleged to have been fraudulent, the burden was on her to prove, not only that the conveyance was made with intent to defraud subsequent creditors, but also that the property could not be taken by legal process when plainwas being concealed and withheld, so that it tiff became a creditor. [Ed. Note. For other cases, see Execution, Cent. Dig. § 1136; Dec. Dig. § 403.*] 5. EXECUTION (§ 403*)—SUPPLEMENTARY PROCEEDINGS-STATUTES. Gen. St. 1902, § 1099, providing for a judg ment creditor's action to recover against the debtor for refusing to pay the judgment debt, while having sufficient estate not exempt from execution concealed and withheld so that it ed to preserve the remedy, by imprisonment for could not be taken by legal process, was designdebt, when the debtor, having property sufficient to pay his creditor, fraudulently conceals or withholds it in order to prevent its being taken by legal process; the gist of the action being the creditor's fraud. [Ed. Note. For other cases, see Execution, Cent. Dig. § 1131; Dec. Dig. § 403.*] 6. FRAUDULENT CONVEYANCES (§ 230*)—LEVY OF EXECUTION. with an actual intent to defraud subsequent Where property is conveyed by a debtor creditors, they may levy on the property so conveyed precisely as if the deed had never been made, provided the grantee has participated in the fraud. [Ed. Note. For other cases, see Fraudulent Conveyances, Cent. Dig. § 660; Dec. Dig. § 230.*] 7. FRAUDULENT CONVEYANCES (§ 208*) TRUSTS FOR DEBTOR-INTENT TO DEFRAUDSUBSEQUENT CREDITORS. A subsequent creditor could only establish fraudulent concealment of property by her debtor by proof that a grantee thereof had agreed to hold the title for the debtor's benefit, or that there was an actual intent, on the part of the debtor, participated in by the grantee, to defraud subsequent creditors. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 631; Dec. Dig. § 208.*] Appeal from Court of Common Pleas, Hartford County; Epaphroditus Peck, Judge. Action by Catherine Allen against Bridget F. Lyness for refusal to pay a judgment debt, while having sufficient nonexempt property concealed and withheld, so that it could not be taken by legal process. Judgment for defendant, and plaintiff appeals. Affirmed. Percy S. Bryant and Harry M. Burke, for | These requests were presented as a unit. It appellant. Herbert O. Bowers, for appellee. would have been error to instruct the jury that if a conveyance of land were not made to a bona fide purchaser for value, the equitable title would remain in the grantor, and his creditors could seize the land to satisfy their claims. Such a charge would have ignored the distinction between creditors who were such when the conveyance was made, and those who became creditors subsequently. Error cannot be assigned on the refusal to of which are inconsistent with law. BALDWIN, C. J. This complaint (treating it, as both parties have done, as charging fraud) states facts which, if true, gave an action under Gen. St. 1902, § 1099. It was unnecessary to aver that the action was brought on the statute. Williams v. Mead, 80 Conn. 434, 436, 68 Atl. 1009. The complaint did not describe the estate concealed or withheld, but it was, as the plaintiff claim-comply with a request for instructions, some ed on the trial, an interest in land. It was conceded that the defendant owned an equity of redemption in this land, under a deed from her father, from 1893 to 1899; that she then conveyed it to her only child, Margaret A. Lyness; that the latter, in July, 1902, reconveyed it; that no money was paid as a consideration for either conveyance; that on September 22, 1902, the defendant reconveyed it to her daughter, subject to a new mortgage, which she had put upon it, for $400; that in 1904 the defendant became indebted to the plaintiff; that the plaintiff in 1905 recovered a judgment on such debt against the defendant, who refused to pay on demand; and that the equity in the land was then worth enough to pay it in full. The plaintiff ofered evidence to prove that the $400 mortgage was put on by the defendant in August, 1902, partly to pay debts which she owed to the amount of over $225, and that the defendant in many ways dealt with the land as if she were the absolute owner, while the paper title was in her daughter. It did not appear that any debts due from the defendant on September 22, 1902, remained unpaid, excepting her $400 mortgage note. The defendant offered evidence to prove that her earnings and her daughter's earnings had enabled her father to acquire the land; that he conveyed to her on the understanding that she should convey to Margaret when the latter was older; that another relative had contributed $300 towards the purchase of the land, and expressed the desire that it should go to Margaret's benefit; and that the defendant had dealt with the land in behalf of Margaret, and to save her the trouble of attending to it. The plaintiff asked the court to instruct the jury that a person might, as to his creditors, be the real owner of land the legal title to which stood in another's name; that the law would not permit the owner of land to convey it to another, if this would prevent his creditors from collecting their dues: that if such a conveyance were not made to a bona fide purchaser for value, the equitable title would remain in the grantor, and his creditors could seize the land to satisfy their claims; and that, if they found that the defendant was the equitable owner of the land in question, or that the conveyance to Margaret A. Lyness prevented the plaintiff from collecting her judgment against the defend The plaintiff also asked the court to instruct the jury that if the defendant, while indebted, conveyed to her daughter upon a valuable, but inadequate, consideration, such inadequacy was evidence of actual fraud; that whether a transaction was fraudulent as to creditors was always a question of fact; that the essence of fraud consists chiefly in motive, and is seldom reached through direct testimony; and therefore that the law, in many cases, dispenses with the necessity of positive proof, and permits the introduction of circumstantial, presumptive, or persuasive evidence. This request is couched in language mainly drawn from certain opinions of this court. Washband v. Washband, 27 Conn. 424, 430; Olmsted v. Hoyt, 11 Conn. 376, 380. It is seldom that extracts of that nature are adapted for use in instructing a jury. Here, for instance, the important thing was not what kind of evidence will be dispensed with "in many cases," but what kind had been put before the jury in this particular case, and what was the weight which they were at liberty to accord to it. On these points the charge as given was clear and adequate. The jury were instructed that, as to the claim that the deed of September 22, 1902, was given with intent to defraud those who might thereafter become creditors of the grantor, they were to say whether the plaintiff had proved it by a fair preponderance of the evidence, and that if she had, she was entitled to a verdict. This portion of the charge affords no ground of complaint to the appellant. It was too favorable to her. On that branch of the case she was bound to establish two fraudulent acts: One the giving of the conveyance in 1902, and the other the concealing or withholding the property, so that it could not be taken by legal process three years afterwards. The instruction complained of would have supported a verdict, if only one of these acts had been proved. The statute was originally enacted as part of the change in our system of judicial procedure by which imprisonment for debt was abolished. Pub. Acts 1842, p. 37, c. 23. It was designed to preserve that remedy when the debtor, having property sufficient to pay his creditor, fraudulently concealed or withheld it from him in order to prevent his taking it by process of attachment or execution. The gist of the statutory action thus |