It is somewhat analogous in principle to | the case of an indictment containing several counts, one or more of which is bad, and a general verdict of guilty is rendered upon the whole. The current of authority in this country is that judgment and sentence will be sustained upon such counts as are valid, and a motion in arrest will not be sustained; the judgment and sentence being considered as given in accordance with the offense properly laid and proved. State v. Burke, 38 Me. 574; Jennings v. Com., 17 Pick. 80, 83.

It is unnecessary to consider the other objections as to the right of the clerk to hear the complaint and issue the warrant, as those have been passed upon by the court in another case. State v. Le Clair, 86 Me. 522, 29 Atl. 7.

Exceptions overruled.

PAINE v. FORSAITH et al. (Supreme Judicial Court of Maine. March 31, 1894.)

TRUSTS-CONSTRUCTION-NATURE OF BENEFICIARIES' ESTATE - RESERVATION DISPOSITION OF TRUST FUND-WILL-REVOCATION.

1. Where property is given, granted, or bequeathed to certain individuals, to be used, appropriated, and applied for their benefit, and in such manner that no other person or persons have or can have any interest in it, they thereby become in effect the absolute owners of it, and may exercise all the rights belonging to them in that relation.

2. The gift of the income of real estate is a gift of the real estate itself. The same rule applies as to personal property.

3. A grantor conveyed all his property to his children, in trust for certain purposes. The trust deed contained a provision that the sum of $10,000 should be raised from the trust property, to be subject to the appointment and distribution of the grantor "by will or other written instrument." By his will, executed several years before his death, he fully exercised the power of appointment and distribution reserved, and subsequently, by a written instrument made a few days before his death, he again exercised this power, making a different disposition of the fund. Held, that the subsequent exercise of the power of appointment by the written instrument revoked the exercise of that power in the previously executed will.

4. In the subsequent written instrument the appointer made use of substantially the following language: "I now desire that the following named persons shall receive the benefit of the $10,000: My wife, Amanda S., shall have paid to her annually the income of one-third of the $10,000. The income of the remaining two-thirds sha.! be equally divided between the children of my son, Alfred, and the two daughters of my daughter, Annie V." Then followed a provision to the effect that, in the event of the death of either of the children of his son or of his daughter without issue, the share of the deceased should go to the surviving brother or sister. Held, that this was a full and complete disposition of the trust fund, and that the rights of the persons named in said instrument are as follows:

(1) The widow is entitled to one-third of the income of the fund during her life.

(2) During the continuation of the trust, the remainder of the income shall be paid one-half

to the children of the son, Alfred, and the other half to the children of the daughter, Annie V. In the event of the death of either, the share of the deceased to be paid to the children of the deceased, if any; if not, to the surviving brother or sister.

(3) After the decease of the widow of the appointor, if all the parties who are then or may be interested desire the trust to terminate, this court could decree a termination of the trust, and the conveyance or distribution of the trust fund to the persons then entitled, viz. one-half to the children of Alfred, and one-half to the children of Annie V., if living. If any should have deceased at that time, then his or her children would take their deceased parents' share; and, if no children, the share of the deceased would go to the surviving brother or sister.

(4) If all the parties interested should not join in a request for a termination of the trust at that time, it would continue until it should be ascertained if either of the children of the appointor's son, Alfred, or of his daughter, Annie V., died without issue. When that fact becomes ascertained, distribution of the fund can be ordered in accordance with the terms of the written instrument, and as indicated in the opinion.

WISWELL, J. By a trust deed dated February 22, 1879, modified by an instrument dated a few days later,-both delivered at the same time,-John W. Veazie conveyed all his estate to his two children, Alfred Veazie and Annie V. Forsaith, in trust for the purposes stated therein.

The trust was duly accepted by the said Alfred Veazie and the said Annie V. Forsaith, and subsequently, both having died, they were succeeded in the trust by the present trustees, William J. Forsaith and Mrs. Etta H. Veazie, in accordance with the provisions of the instrument creating the trust.

The original trust deed contained this provision: "Finally, to provide from the income of the trust property or otherwise, within two years of my decease, the sum of ten thousand dollars, which shall be subject to my appointment and distribution, if I so choose, by will or other written instrument." John W. Veazie, in his last will, executed August 3, 1886, fully exercised this power of "appointment and distribution" by a bequest of the fund to Helen M. Lord, of Yankton, D. T., "in trust for the sole use and benefit of my grandson, Alfred Veazie, the only son of said Alfred Veazie, named in the trust deed."

Subsequently, by an instrument dated April 5, 1891, a few days before his death, he made

a different disposition of this $10,000 fund. The language of that instrument, so far as necessary for a proper understanding of the question involved, is as follows: "I now desire that this $10,000 be kept by the present trustees [William J. Forsaith and Etta H. Veazie] of the trust property. *** I now desire that the following named persons shall receive the benefit of the $10,000: My wife, Amanda S. Veazie, shall have paid to her annually the income of one-third of the $10,000. The income of the remaining two-thirds shall be equally divided between the children of my son, Alfred, and the two daughters of my daughter, Annie V. Forsaith. Should Alice V. Towle or Alfred Veazie die, and leave no children, then the share of the deceased shall revert to the surviving brother or sister, as the case may be. In case of the death of Marion Forsaith or Annie Forsaith, leaving no children, then the shares of the deceased shall revert to the surviving sister. My wife shall, if she survives me, receive during her widowhood the income of one-third of the $10,000, and at her death the one-third which she would have received if living shall be equally divided between Marion Forsaith, Annie Forsaith, Alice V. Towle, and Alfred Veazie."

By a bill in equity, in which all of the persons interested are made parties, this court is asked to determine the rights of the parties under these various instruments.

That the exercise by Mr. Veazie of the power of appointment reserved by him in the original trust conveyance, by the written instrument dated April 5, 1891, revoked the exercise of that power in the previously executed will, either in whole or in part, is too clear to require discussion or citation, and is admitted to be the result by the counsel for all parties. If the power is completely and effectually exercised by the subsequent written deed, it entirely revokes the previous exercise of that power in the will.

It becomes necessary, then, first, to determine whether or not in the instrument dated April 6, 1891, there is a complete and effectual disposition of this fund. The language is, "I now desire that the following named persons shall receive the benefit of the $10,000;" and he then provides that his wife, during her widowhood, should receive onethird of the income, and the children of his son, Alfred, and the two daughters of his daughter, Mrs. Forsaith, should receive the other two-thirds.

The question as to what Mr. Veazie's intention was is not entirely free from doubt, but we are inclined to the opinion that he intended to make a full and complete distribution of this fund. We think that, by the use of the words "the benefit of the $10,000," he meant to give more than the income of that sum for a limited time or for life. The word "benefit," unrestricted, means the whole benefit, the entire beneficial interest. Where property is given, granted, or bequeathed to

certain individuals, to be used, appropriated, and applied for their benefit, and in such a manner that no other person or persons have or can have any interest in it, they thereby become, in effect, the absolute owners of it, and may exercise all the rights belonging to them in that relation. Smith v. Harrington, 4 Allen, 566.

The same result is reached by the application of certain rules of construction to that portion of the instrument which provides for the distribution of the income. It is a wellsettled rule of law that a gift of the income of real estate is a gift of the real estate itself. The same rule applies as to personal property. The gift of the income of personal property is, in contemplation of law, a gift of the property itself. In the case of either real or personal property, a gift of the income for life is a gift of the property for life, while a gift of a perpetual income is a gift of the fee of the real estate, or of the absolute property in the personal estate. Sampson v. Randall, 72 Me. 109.

In this instrument there were no words of limitation in regard to the payment of the income, except as to the widow, and except in the event of the death of either of the beneficiaries without issue, in which event the share of the one so dying is to go to the brother or sister. We think that a fair inference from the language used in regard to the death of either of the beneficiaries without issue is that, in case of death with issue, such issue is entitled to the benefit of its parent's share of the fund.

It is undoubtedly true that, if the trust was to continue for the payment of the perpetual income, it would be void because of the rule against perpetuities; but we do not think that it is a necessary construction of the instrument that the trust should continue for such a length of time as to create a perpetuity. The instrument contains nothing as to the duration of the trust, except by inference from its purposes. It was undoubtedly the intention of Mr. Veazie that it should continue during the time that his widow may be entitled to one-third of the income in accordance with the provisions of the instrument.

At the expiration of that time, if all the parties who are then or may be interested desire that the trust should terminate, this court would have the power to decree a termination of the trust, and the conveyance or distribution of the trust fund to the persons entitled. Perry, Trusts, § 920; Smith v. Harrington, 4 Allen, 566; Bowditch v. Andrew, 8 Allen, 339.

If all the parties interested should not join in a request for a termination of the trust at that time, it would have to continue until it was known whether or not either of the children of Alfred Veazie or of Mrs. Forsaith died without issue, so as to ascertain who bẹcame entitled to any portion of the principal fund under that clause which provides that,

in case of the death of either of the children of Alfred Veazie or of Mrs. Forsaith without issue, the share of such deceased should go to the brother or sister. But even in this latter event the trust would terminate, and the estate vest, within the period allowed by law.

Our conclusions are that by the instrument dated April 6, 1891, Mr. Veazie fully and completely executed the power of appointment reserved to him in the original trust deed, thereby entirely revoking the previous exercise of that power in the will; that the present trustees will continue to hold the legal title to the trust property, and, during the widowhood of Mrs. Amanda S. Veazie, pay onethird of the income of said fund to her, onethird to the children of Alfred Veazie, and the other third to the children of Annie V. Forsaith. At the expiration of that time, if all of the parties who are or may be interested do not join in a request to have the trust terminated, it will continue for the purposes above indicated. In the latter event, distribution of the income should be made as provided in the instrument, viz. one-half to the children of Alfred Veazie, and one-half to the children of Mrs. Forsaith. Decree accordingly.

GARDINER v. INHABITANTS OF CAMDEN.

(Supreme Judicial Court of Maine. April 2, 1894.)

MUNICIPAL CORPORATIONS-DISCHARGE OF SEWAGE ON LAND-ACTION FOR DAMAGES-WHEN LIES.

1. Where the evidence fails to show that the municipal officers constructed a "public drain" or "common sewer" in the exercise of any authority conferred by the statute of 1889, but satisfactorily proves that the acts complained of were performed by the highway surveyor while making necessary repairs on the highway, by cleaning out the old ditch and one or more of the culverts, in order that they might serve the purpose for which they were designed, held that, if the effect of these operations was to cause the surface water to flow upon the plaintiff's fand adjacent more freely than it had previously been accustomed to do, no action will lie against the town for the damage thereby occasioned.

2. Such proof will not sustain an action upon St. 1889, c. 285, relating to public drains and common sewers, and a verdict for the defendants may be properly ordered by the presiding justice.

(Official.)

Exceptions from supreme judicial court, Knox county.

Action by William H. Gardiner against the inhabitants of Camden to recover damages for injury to his land, caused by the discharge of sewage thereon from a public drain constructed by defendants. The court directed a verdict for defendants, and plaintiff brings exceptions. Exceptions overruled.

J. H. & C. O. Montgomery, for plaintiff. C. E. & A. S. Littlefield, for defendants.

WHITEHOUSE, J. The plaintiff represents that he is injured in his property by the act of the defendants in constructing a public drain on the west side of Bay View street, in Camden, with outlets so adjusted as to turn the sewage therefrom upon his premises on the east side of the street, and he brings this action to recover damages for the injury. After hearing the plaintiff's evidence the presiding justice instructed the jury to return a verdict in favor of the defendants. The case comes to this court on exceptions.

It is claimed in the argument of the plaintiff's counsel that the alleged drain was constructed by direction of the municipal officers of Camden, in pursuance of chapter 285 of the statutes of 1889, relating to "publie drains" and "common sewers;" that act having been accepted by the defendants, in town meeting, prior to the injury complained of.

But a careful examination of all the evidence introduced not only fails to disclose any reasonable ground for the contention that the municipal officers constructed a "public drain" or "common sewer" opposite the plaintiff's premises, in the exercise of any authority conferred by the act of 1889, but affirmatively shows, beyond a reasonable doubt, that the alleged "public drain" was but the usual ditch on the side of the highway, and the "outlets" were the ordinary culverts long before laid across the street at three different points in that vicinity. They were not designed to carry off the sewage from the dwelling houses on the west side of the street, but the drain and culverts were intended to perform the well-recognized and customary office of disposing of the surface water accumulating on the highway from rains and melting snows; and the acts complained of were evidently performed by the highway surveyor while making necessary repairs on the highway, by cleaning out the old ditch and one or more of the culverts, in order that they might serve the purpose for which they were designed.

If the effect of these operations was to cause the surface water to flow upon the plaintiff's land adjacent more freely than it had previously been accustomed to do, it is well-settled law that no action will lie against the defendants for the damage thereby occasioned. Greely v. Railroad Co., 53 Me. 200; Dickinson v. Worcester, 7 Allen, 19; Flagg v. Same, 13 Gray, 601; Parks v. Newburyport, 10 Gray, 28; Ang. Watercourses (6th Ed.) 1081, and cases cited. This doctrine is expressly conceded in Emery v. Lowell, 104 Mass. 13, cited by the plaintiff.

There is no evidence that the owners of the several dwelling houses on the west side of the street were "permitted" by the selectmen to use the drain and culverts in question to carry off either surface water or sewage from their premises. It does not appear that the selectmen ever took any action whatever, under the act of 1889, respecting sewage.

Whether or not the highway surveyor exceeded his official authority and duty, and rendered himself personally liable, by excavating a trench outside of the limits of the highway on the land of the plaintiff, or otherwise, is a question not now before the court. It is not claimed that any action therefor would lie against the defendant town. See Plummer v. Sturtevant, 32 Me. 327; Rev. St. c. 18, § 67. The verdict in favor of the defendants was properly ordered by the presiding justice. Exceptions overruled.

DODGE v. DODGE.

DODGE v. PAGE.

(Supreme Judicial Court of Maine. April 14, 1894.)

NEW TRIAL-NEWLY-DISCOVERED EVIDENCE.

On motion to have a verdict set aside as against evidence, and for a new trial on the ground of newly-discovered evidence, it appeared that no questions of law were presented, much of the evidence was but remotely relevant, and that portion of it which was more directly relevant was directly contradictory. Held, in this case, that its weight depends upon the intelligence, the character, and the credibility of the witnesses. The evidence claimed to be newly discovered does not impress the court as of much importance, and it is cumulative in its character, and only slightly adds to the numerous contradictions already existing, and a new trial should be denied. (Official.)

Two actions,-one, trespass quare clausum by Benjamin Dodge against Eben Dodge, and the other trespass on the case, with a count in trover for the conversion of a deed, by Eben Dodge against Henry S. Page. There was a verdict for plaintiff in the first action, and defendant moves for a new trial. In the second action there was a verdict for defendant, and plaintiff moves for a new trial. Motions overruled.

W. H. Hilton, for Benjamin Dodge and Henry S. Page. True P. Pierce, for Eben Dodge.

WALTON, J.

These two actions appear to have been tried together, and both are before the law court on motions to have the verdicts set aside as against evidence, and for new trials on the ground of newly-discovered evidence. No questions of law are presented. Much of the evidence is but remotely relevant, and that portion of it which is more directly relevant is directly contradictory. Its weight depends upon the intelligence, the character, and the credibility of the witnesses. The evidence claimed to be newly discovered does not impress us as of much importance. It is cumulative in its character, and only slightly adds to the numerous contradictions already existing. It is the opinion of the court that the motions must be overruled, and the verdicts allowed to stand.

Motions overruled.

HAWKINS et al. v. HERSEY. (Supreme Judicial Court of Maine. April 24, 1894.)

FIXTURES-CONDITIONAL SALE-CONVERSIONDAMAGES-APPLICATION OF PAYMENTS.

1. When machinery is sold and placed in a building for the purpose of making it available as a manufactory, but under an agree ment between the seller and buyer that the title shall remain in the former until it is wholly paid for, it may properly be deemed personal property, as against a mortgagee, who, with full knowledge, consents to the arrangement, and may be removed by the seler retaining title thereto, although it has the character of a fixture, and has been permanently annexed.

2. In such a case an action of trover may be brought by the vendor against a third person who has purchased of the conditional vendee, and the plaintiff is still entitled to recover the full value of the property at the time of the conversion, although but a single dollar of the purchase money remains unpaid.

3. Held that, under the terms of the contract between the vendor and the vendee in this case, the sum of $375, admitted to have been applied to the payment of the machinery, may properly be applied to the earliest items delivered after the date of the contract, amounting to the sum of $369.31. As the plaintiffs no longer had title to these articles, they cannot recover for them in this action. (Official.)

Action of trover by James B. Hawkins and others against Oscar H. Hersey for the conversion of certain machinery. There was a verdict for plaintiffs, and defendant moved for a new trial. At the argument the parties stipulated that the full court should hear the case as upon report, and determine what number of articles, if any, had been converted, the damages to be assessed by a person agreed on. Judgment for plaintiffs.

John P. Swasey and Edgar M. Briggs, for plaintiffs. Geo. D. Bisbee, for defendant.

WHITEHOUSE, J. The plaintiffs bring this action of trover to recover the value of certain machinery delivered to Harlow & Son, of Buckfield, during the year 1890, under a contract with them, by which the machinery was to remain the property of the plaintiffs until paid for, and alleged to have been sold and converted by the defendant.

It appears that Harlow & Son had previously been operating a steam mill in Buckfield for the manufacture of toothpicks, but became embarrassed in business, for the want of sufficient capital. Thereupon, the defendant united with six others in a praiseworthy effort to encourage the productive industry of the community by aiding the firm with a loan of $1,200, secured by a mortgage of the mill property, with its machinery and fixtures, signed by J. M. Harlow, a member of the firm of Harlow & Son, and sole owner of the mill, containing the following clause: "Together with all tools, machines, and attachments, and machinery of every kind, hereafter used in connection with said mill." But, this business being still unsuccessful,