defendant, but the court held the action was barred by the statute of limitations in favor of executors and administrators. See Bennett v. Bennett, 92 Me. 80, 42 Atl. 237.

He now brings this bill in equity to obtain the relief authorized by Rev. St. c. 87, § 19, viz.: "If the supreme judicial court, upon a bill in equity filed by a creditor whose claim has not been prosecuted within the time limited by the preceding sections, is of opinion that justice and equity require it, and that such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the deceased person; but such judgment shall not affect any payment or distribution made before the filing of such bill."

This statute, first enacted in Maine in 1883, is almost a verbatim copy of the Massachusetts statute enacted in 1861, the language of which had several times received a judicial interpretation from the court of that state before it was adopted in this state in 1883. It is to be presumed that in adopting the language thus interpreted the legislature used it in the sense already judicially declared to be its true sense and meaning. Rutland v. Mendon, 1 Pick. 154; Purrington v. Dunning, 11 Me. 174.

The Massachusetts court held speed of administration and early discharge of the executor and administrator from liability to suit to be the worthy purpose of the statute of limitations in their favor, and hence that the relief to be granted in equity was exceptional only. The court also held that both conditions of the statute in question must be complied with; that it was not enough for the plaintiff to show that he had a valid claim against the estate, a claim good in "justice and equity," but that he must further show that he was not "chargeable with culpable neglect in not prosecuting his claim within the time so limited." "Culpable neglect" was held to be not criminal neglect, but any neglect that was "censurable," "blameworthy;" "the neglect which exists when the loss can fairly be ascribed to his [the plaintiff's] own carelessness, improvidence, or folly;" "failure to make reasonable inquiry." See Bank Bank v. Wright, 8 Allen, 121, where it was held that it was culpable neglect in the plaintiff to delay the enforcement of his claim on the oral promise of the administrator to pay it out of a particular fund; Jenney v. Wilcox, 9 Allen, 245, where it was held to be culpable neglect for the plaintiff to delay at the earnest request of the executor to wait until he could realize from certain property, and upon his earnest assurance that the claim should certainly be paid. It was also held in this case that ignorance of the special limitation in favor of executors and administrators was culpable neglect. In Wells v. Child, 12 Allen, 333, the creditor was a woman living in another state. She seasonably sent her claim to the executors, who acknowledged its validity, and

assured her that it would be paid as soon as they could sell some real estate, which would be soon, and that no further proceedings were necessary on her part. Relying upon these assurances, she brought no action within the limitation. Afterwards, finding out that the executors had not applied for license to sell real estate, she applied for relief in equity. Held, that she had been culpably negligent, and relief was denied. The court said that in administering this statute the court should not exercise an arbitrary or capricious discretion, governed only by an opinion as to the hardship of the particular case, but should be guided by the rules and principles of equity jurisdiction as settled by a long series of adjudications. In Sykes v. Meacham, 103 Mass. 285, the creditor lived in Montreal, and was unaware of the death of his debtor and of the appointment of the administrators until after the two-years limitation. One of the administrators knew of the claim of the Montreal creditor, but sent him no notice of the death or appointment. The creditor applied for relief under the statute, but the court dismissed his bill, with costs, saying: "The object of the statute was to protect the estates of deceased persons, and insure their speedy settlement without embarrassment from creditors who slumber upon their rights and take no pains to inform themselves of facts as to which information is easily to be obtained.

In this case there is no misrepresentation, and the only mistake is the failure to know a fact about which he made no inquiry."

Recurring now to the evidence in the case before us, we find that the partnership estate was a small one, consisting of real estate valued at $2,225, and goods and chattels valued at $117.65. The liabilities of the partnership over its assets turned out to be only $1,015.81. Though the plaintiff was qualified as surviving partner in March, 1889, he does not appear to have taken any steps to sell the real estate till May, 1890. He does not appear to have obtained any license until January 20, 1892, and even then he made no sale under it. He presented no account for allowance until July, 1893, and only after two citations therefor at the instance of the administrator. He did not present his final account till March, 1896. Thus he protracted for seven years or more the administration of a partnership estate where the assets were mainly real estate and less than $3,000, and the total liabilities not over $4,000. While he says he did the best he could, and tried to close up the estate by negotiations, etc., he utterly fails to point out any unusual difficulty. No litigation, nor even dispute, is shown between the partnership and its creditors or debtors. obstacles were put in his way by the administrator or heirs of the deceased partner. On the contrary, they were anxious for him to proceed more rapidly. The administrator twice cited him to present accounts for settlement, and, with the heirs, signed an agree

No

ment for the conveyance of the partnership real estate by him.

We are constrained to believe fully, notwithstanding the finding of the justice of the first instance, that the delay of which the plaintiff complains, and from the consequences of which he asks to be relieved, was the result of his own inattention,. want of diligence, and lack of proper effort; that is, of his own "culpable neglect." To hold otherwise would be to practically nullify the statute of limitations, and indefinitely prolong the administration of estates.

Decree below reversed.
Bill dismissed, with costs.

MUNICIPAL COURT OF SANFORD-JURISDICTION OF RECORDER.

The recorder of the municipal court of Sanford may exercise, under section 9, c. 522, of the Special Laws of 1897, all the powers of the judge in case of the absence from the court room or sickness of the judge."

Held, that the complaint in this case, made to the recorder in the absence from the court room of the judge of the court,-the jurat containing the same statement, and the warrant being signed with the same addition by the recorder, is sufficient to show the authority of the recorder to exercise all the powers of the judge. (Official.)

Exceptions from supreme judicial court, York county.

Action by Philando Porell against Fred W. Cousins. Judgment for defendant, and plaintiff excepts. Overruled.

This was an action of trespass q. c., heard by the presiding justice without a jury, and with the right to except.

The defendant admitted the acts complained of as a trespass, but justified under a search warrant commanding the search of the locus for intoxicating liquors, issued by the recorder of the Sanford municipal court. The only question made as to the sufficiency of the search warrant was that it was issued by the recorder of said court without any sufficient allegation of the authority of the recorder to issue the same.

The complaint upon which the warrant was issued, and which is annexed to the latter, was addressed as follows: "To Geo. E. Allen, Esquire, Recorder of the Sanford Municipal Court of Sanford in the County of York, in the Absence from the Court Room of the Judge of Said Court." And the warrant, after the signature of George E. Allen, recorder, contained the following: "In the Absence from the Court Room of the Judge of Said Court."

The court ruled that the warrant was properly issued, and afforded a justification to the defendant for the acts complained of, and thereupon awarded judgment for the defendant.

To this ruling the plaintiff excepted. Argued before PETERS, C. J., and HASKELL, STROUT, SAVAGE, and FOGLER, JJ.

John S. Derby, for plaintiff. Fred J. Allen, for defendant.

STROUT, J. Section 9 of chapter 522 of the Special Laws of 1897 authorizes the recorder of the municipal court of Sanford, "in case of the absence from the court room or sickness of the judge," to exercise all the powers of the judge. The complaint in this case Iwas made to the recorder, "in the absence from the court room of the judge of said court," was sworn to before the recorder, whose jurat contains the same statement of absence of the judge, and the warrant was signed by the recorder, with the addition, "In the Absence from the Court Room of the Judge of Said Court." And the last part of the same section provides that "the signature of the recorder as such shall be sufficient evidence of his right to act instead of the judge."

It is settled law that the jurisdiction of inferior tribunals must affirmatively appear in the papers, and cannot be inferred. This complaint and warrant do distinctly and fully show the authority of the recorder to receive the complaint and issue the warrant. It therefore afforded justification to the defendant for his acts. Such was the ruling below. Exceptions overruled.

GILE v. ATKINS.

(Supreme Judicial Court of Maine. Nov. 23, 1899.)

ANIMALS-LIEN-TIME-ESTOPPEL.

1. Under chapter 25, St. 1895, a colt foaled on the 12th day of July, 1898, became "six months old" at the beginning of the 11th day of January, 1899; and the statutory lien upon a colt expires at that time. .

2. A lien created solely by statute cannot be extended by any estoppel. (Official.)

Exceptions from supreme judicial court, Piscataquis county.

Action by Samuel N. Gile against John Atkins and a colt. Judgment for plaintiff, but denying the lien sued for, and defendant excepts. Overruled.

Assumpsit to enforce a lien on the defendant's colt under St. 1895, c. 25; also, for a personal judgment against the defendant. The action was tried in the Dover municipal court, Piscataquis county, where the judge denied the claim for a lien, and signed a bill of exceptions under the provision of the act organizing the court, being chapter 507, § 17, Priv. & Sp. Laws 1889, as follows:

"In the above-entitled action, tried at the March term of said municipal court, the judge of said court found as facts that defendant's mare was served by plaintiff's stallion, and the price of such service was fifteen dollars;

that by said service a colt was foaled from defendant's mare early in the morning of July 12, 1898, being first seen at four o'clock a. m., then playing and dry; that the lien attachment in the lien suit brought for the recovery of said fifteen dollars was made by the officer in the forenoon of January 12, 1899, at about ten o'clock a. m., being at an hour of the day later than that of his birth.

"The court ruled that he should reckon fractions of a day in such case, and, as the colt was a few hours more than six months old, he denied the lien.

"The said judge found as facts, further, that about two months prior to said attachment the plaintiff saw the defendant, and tried to adjust the matter; that the defendant told the plaintiff that said colt was foaled on the 20th day of July, 1898, and would not be six months old until January 20, 1899, and that plaintiff relied on said statement; and that plaintiff told defendant that he should not let the lien run out.

"Upon these facts the court ruled that the defendant was not estopped to set up the true age of the colt in defense of the lien, although the colt was all the time owned by the defendant.

"The court rendered judgment for plaintiff for amount sued for, and costs, but denied the lien."

To these rulings plaintiff excepted.

Argued before PETERS, C. J., and EMER., HASKELL, WISWELL, SAVAGE, and FOGLER, JJ.

"Section 1. A lien is hereby created on all colts hereafter foaled in this state, to secure the payment of the service fee, for the use of the stallion begetting the same. Such lien is to continue in force until the foal is six months old, and may be enforced during that time by attachment of such foal."

The colt was foaled on the morning of July 12, 1898. When did it become "six months old," within the meaning of the statute? The answer must be that it became six months old on the 11th day of January, 1899, at the beginning of that day. Age has always been reckoned that way, at least since the judgment of Chief Justice Holt in Fitzhugh v. Pennington, 1 Salk. 44; and the rule there laid down was explicitly affirmed in Bardwell v. Purrington, 107 Mass. 410 (1871). It is to be presumed that the legislature, in using that phraseology, was aware how age had been reckoned, and intended it to be so reckoned under the statute. The statutory lien 44 A.-57

therefore continued in force until the beginning of the 11th day of January, 1899, and then expired. The plaintiff's attachment was not made till the next day, January 12th, when the lien no longer existed.

But the plaintiff insists that the defendant is estopped from questioning the seasonableness of the attachment, because when apprised, some two months previous, of the plaintiff's intention to enforce his lien, he assured the plaintiff the colt was foaled on July 20th, and thereby induced the plaintiff to delay the attachment. If the lien had been created by the defendant's stipulation or assertion in the first instance, it perhaps would have been extended by the defendant's statement as to a later time of foaling. Oakes v. Moore, 24 Me. 214. But the lien in this case was created solely by statute, and had such duration only as the statute gave it. Its entire vitality was dependent on the terms of the statute. Frost v. Ilsley, 54 Me. 345. It could derive no life, nor prolongation of life, from any statements of the defendant made subsequent to the foaling. Such statements might estop the defendant personally, and might subject him to various liabilities and disabilities, but they cannot by estoppel enact or enlarge a statute. There was no lien on the colt, of any kind or extent, outside of the statute. There can be no lien judgment against the colt, except upon the terms prescribed by the statute. One of those terms is that the attachment should be made before the colt was six months old. There is no provision that the parties, either or both, by estoppel or in any other way, may substitute a later date for the attachment. Exceptions overruled.

SMITH et al. v. CHANEY et al. (Supreme Judicial Court of Maine. Nov. 11, 1899.)

PROBATE OF WILL-APPEAL-PRACTICE. 1. Persons named as legatees in a written instrument purporting to be the will of one deceased, though not presented for probate, can appeal from a decree of the judge of probate allowing another instrument of a later date as the will of the deceased.

2. When, in such an appeal, the appellants have inadvertently described themselves as heirs of the deceased, instead of legatees under a prior will, such misdescription does not bar the appeal, and it may be corrected. (Official.)

Agreed statement from supreme judicial court, York county.

Action by Albert Smith and others against James H. Chaney and others. Submitted on Motion to dismiss. Deagreed statement. nied.

By agreement of the parties this case was submitted to the law court upon the following agreed statement of facts:

"Samuel N. Young, the alleged testator, died May 2, 1898, in Berwick, York county, leaving surviving a son, a brother, and Carrie

E. Chaney, a niece, one of the residuary legatees under the instrument purporting to be said Young's last will, and the appellants, who are nephews and nieces of said Young. "June 7, 1895, said Young made what purports to be a will, now in existence, in which the appellants Albert Smith and Sarah E. Smith are residuary devisees and legatees. This will has not yet been offered for probate.

"In 1897 said Young made what also purported to be a will, in which he made the appellant Nellie E. Hern as one of the devisees and legatees. This instrument was destroyed by said Young.

"Upon the above-stated facts, and all inferences legitimately to be drawn therefrom, the court is to dismiss said appeal, or send back for trial, as the law and justice may require."

Argued before EMERY, HASKELL, WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

G. C. Yeaton and W. D. Hill, for appellants. J. A. Edgerly, W. S. Mathews, and G. F. Haley, for appellees.

EMERY, J. Samuel N. Young died May 2, 1898, leaving in existence behind him two instruments in writing, each purporting to be duly executed by him as his last will and testament. In the earlier instrument, dated June 7, 1895, the appellants Albert Smith and Sarah E. Smith were named as residuary lega

This instrument has not yet been presented for probate. The later instrument, dated March 27, 1898, was presented for probate, and was allowed as the last will of the deceased by probate decree in August, 1898. Albert and Sarah E. Smith claimed an appeal, which appeal the executors under the later instrument asked to have dismissed.

1. The first question is whether the two Smiths named as residuary legatees in the earlier instrument purporting to be a will can appeal from the decree establishing the later instrument as the operative will. They can if they would be concluded by that decree, if allowed to stand, from maintaining any claim of their own to rights or interests in the property of the deceased. The earlier The earlier instrument purported to give them rights and interests in the property which would become vested upon the allowance of that instrument as an operative will. If the decree in question had been against the later instrument, then the appellants could have presented the earlier instrument under which they claim, and must have been heard as to its validity as the operative will. The decree as passed, however, by establishing the later instrument as the operative will, also establishes that the earlier instrument is without force or effect. So long as the decree stands, it is a bar against all proceedings to establish the earlier instrument as the operative will, and the appellants, claiming under

this earlier instrument, cannot be heard in its support. They are therefore "aggrieved." They are entitled to be heard in opposition to a decree that strikes down their written instrument of title, which purports upon its face to be valid.

It is urged that the appellants cannot be heard to oppose the later instrument until they have presented the earlier instrument for probate, since non constat they would ever present it. It would be futile, however, to begin proceedings for the establishment of the earlier instrument until the validity of the later instrument was determined. If such proceedings were begun, and the earlier instrument established, the proceedings and decree might all be nullified by subsequent proceedings and decree establishing the later instrument. The natural and proper procedure would be to consider first the later instrument, and, only in case that is rejected, to consider next the earlier instrument. Parties claiming under the instrument to be last considered, if at all, are entitled to be heard against the instrument to be first considered, since only in case that instrument is rejected can they bring forward their own with any permanent effect.

The question here determined was considered by the Connecticut court in Buckingham's Appeal, 57 Conn. 544, 18 Atl. 256, with the same result. In Hall v. Hall, 17 Pick. 373, it was held that a person named as legatee in a prior will not presented for probate had such an interest that he was disqualified from testifying in the hearing upon the probate of a later will.

2. In claiming an appeal, however, these appellants described themselves as heirs at law of the testator, while in fact they were not heirs, but their interest was solely under the earlier instrument, as stated. They have asked leave to amend their statement of their interest accordingly. The appellees insist that their statement in that respect cannot be amended; that they must stand or fall by it, and if they have stated their interest incorrectly, however inadvertently, they must be dismissed without being heard, although in fact they may have sufficient interest in the matter. It may be that the "reasons of appeal" filed in the probate court below should be adhered to in this court, without enlargement or change, so far as they are statements of the questions raised and the errors made in the court below. The errors of the court are the real reasons of appeal, and the appellee may perhaps insist that the appellant shall be confined to such errors as he has stated. But a mere description of the appellant's status or interest does not state an error of the court, nor a reason of appeal. While one cannot appeal without having an interest, he does not appeal because of that interest, but be cause of the errors of the court injuriously affecting that interest. We do not think a misdescription of his interest, made perhaps inadvertently in his claim of appeal, shuts him

out from alleging and showing in the appellate court his true interest. In Smith v. Bradstreet, 16 Pick. 264, after an appeal had been dismissed for want of sufficient interest alleged, the appellant was allowed to amend his claim of appeal by stating other facts showing an interest, and thereupon the court sustained the appeal. In Danby v. Dawes, 81 Me. 30, 16 Atl. 255, it was contended that the original petition did not contain allegations of certain essential jurisdictional facts. The appellate court, however, found the essential facts to exist, though not alleged in the petition, and held that such findings would be as much a part of the record as the petition would be. The decree in favor of the petitioner was affirmed. In this case the appellants can file in the appellate court a new and amended statement of their interest, which, if found to be true by the appellate court, will become a part of the record, so far as necessary.

Motion to dismiss denied. Case to stand for trial.

STATE v. PARKS.

(Supreme Judicial Court of Maine. Oct. 25,

1899.)

CRIMINAL LAW-INSANITY-EVIDENCE-
BURDEN OF PROOF.

To establish a defense on the ground of insanity in a criminal case, the burden is on the respondent to prove the fact of insanity by a preponderance of evidence.

(Official.)

Exceptions from supreme judicial court, York county.

Frank P. Parks, who was indicted for the murder of Mary Tarlton at Kittery on January 23, 1899, was found guilty by a jury trial at the following term in York county.

At the trial the defendant offered evidence tending to show that at the time of the killing of deceased, and before, he had a mental disease called "inebriety"; that said mental disease manifested itself and was characterized by an uncontrollable, overwhelming craving for intoxicating liquors; that he drank liquor on the day of the killing, and while he had such mental disease, and in consequence of it; and that he drank so much liquor on that day, before the killing, that at the time of the killing he did not know what he was doing.

The court charged the jury that it was incumbent on the defendant to show by a preponderance of evidence that he had the mental disease, and that he drank the liquor and became intoxicated because of such disease, and that the killing was the result of the disease, and of the drinking of the liquor in consequence thereof to such an extent that he did not know what he was doing when he killed the deceased. The defendant excepted to this part of the charge. Overruled.

Argued before EMERY, HASKELL, STROUT, SAVAGE, and FOGLER, JJ.

W. T. Haines, Atty. Gen., and W. S. Mathews, Co. Atty., for the State. Thos. H. Simes and Saml. W. Emery, for defendant.

FOGLER, J. The instruction of the presiding justice, to which the respondent excepts, is in accordance with the law laid down by this court in State v. Lawrence, 57 Me. 574.

We reaffirm the decision in that case, believing it to be sound in principle, and supported by the weight of authority in this country. Exceptions overruled. Judgment for state.

SHERER V. SHERER.

(Supreme Judicial Court of Maine. Nov. 1, 1899.)

ADMINISTRATOR-ACTION ON BOND-APPEAL. 1. An administrator cannot appeal from a decree of the judge of probate authorizing an action on his bond.

2. He is not a person "aggrieved," in the statutory sense of that word, nor is he thereby concluded from asserting or defending his claims of personal or property rights in any proper court. Bulfinch v. Inhabitants of Waldoboro, 54 Me. 150, affirmed.

(Official.)

Exceptions from supreme judicial court, Knox county.

This was an appeal by Charles Sherer, administrator of the goods and estate of Reuben Sherer, from a decree of the judge of probate for the county of Knox authorizing Fred Sherer to commence a suit on the probate bond of said administrator for the benefit of said estate.

When the appeal came on to be heard, the presiding justice ruled, as a matter of law, that Charles Sherer, the administrator, had no right to appeal from the decision of the judge of probate authorizing the commencing of a suit on his probate bond, under any circumstances, or upon any state of facts. To this ruling the appellant, Charles Sherer, excepted. Overruled.

The exceptions present only the legal proposition as stated in the ruling of the court. The facts upon which the appeal was based are not stated.

The material portion of the statute (Rev. St. c. 63, § 23) under which the right of appeal was claimed is as follows:

"Sec. 23. The supreme judicial court is the supreme court of probate, and has appellate jurisdiction in all matters determinable by the several judges of probate; and any person aggrieved by any order, sentence, decree, or denial of such judges, except the appointment of a special administrator, may appeal therefrom to the supreme court to he held within the county," etc.

The decree of the judge of probate authorizing the commencement of a suit on a probate bond is by virtue of the provisions of Rev. St. c. 72, § 16, which reads as follows, so far as material: