Imágenes de páginas

fepdant Con Creeden had received like pack-fand rights cannot be restricted. We think ages of intoxicating liquor prior to this from there can be no doubt that this is the correct the Railroad Company, wbich had been, in the purport of this decision. same way, shipped to him from places out of We do not understand that the United States the State. The liquors were seized on the 23d Supreme Court has decided in this case, or in day of November. Two of the packages bad any other, that intoxicating liquors transported been for fifteen days in the railroad freight from another State may be sold withio this house at Des Moines, one for thirteen days, State for uses forbidden by its laws. Indeed, one for nine days, one for eight days, and one tbe court expressly declares that the question for six days. Coo Creedep kept a place in Des is not in the case. The United States Supreme Moines for the uplawful sale of intoxicating Court in many decisions bas beld that the liquors, and was guilty of frequent violation of States bave the constitutional right to forbid the law against their sale. The packages were the sale of intoxicating liquors within their marked with the word “Whiskey,” and prior borders. It appears that this controlling to the seizure in this case like packages bad thought bas escaped attention in the discussions been received for and delivered to Con Cree- upon the subjeci of the effect of the constitu. den, one at a time, by the Railroad Company. tional authority of Congress to regulate com

2. In Borman v. Chicago & N. W. R. Co. merce between the States upon the power of a 125 U. 8. 465 (31 L. ed. 700), the United States Siate to forbid the sale of intoxicating liquors Supreme Court has held that the laws of within its borders which are imported from an. this Siate restricting the transportation of in-otber State. Commerce is not the use of arti. toxicating liquors from otber States into this cles of traslic. When the United States Con. State are a regulation of commerce, and are stitution conferred upon Congress the power to therefore in conflict with the Constitution of regulate commerce between the States, it was the United States, wbich it is held secures not intended that provisions sbould be made by the rigbt of transportation of articles of com. Congress 10 affect the use of the subjects of merce from one Siate to another. The features commerce. It surely was not the intention that of the Iowa Siatute held to conflict with ihe laws should be enacted affecting the tastes, United States Constitution are those which habits and wants of the people, so as to increase restrict tbe right of common carriers to trans. the demands for articles of irailic; nor could it port intoxcating liquors into this State. The have been intended that the governments of the restriction upon the powers and rigbts of States established by The people should be decarriers is the point upon which it conflicts prived of the power to repress the use of such with ibe Constitution of the United States. In articles of commerce as the State determines so far as the Statute probibits the keepers of are detrimental to the morals, bealih, peace and saloons, restaurants, warehouses or any other prosperity of the people. The people, by their place, from keeping intoxicating liquors for tastes, habits, wants and laws enacted by them. unlawful sales, it does not coutlict with the selves, determine what articles of commerce Constitution of the United States. But, as they will use. Commerce in the articles of commerce is dependent upon carriers for trans. trailic thus required by the people is regulated portation of all articles of irade, their powers by Congress. If the use of certain articles of

age and sex of her children is not admissible to af- The fact that a husband, when intoxicated, called fect the question of damages. Huggins v. Kava- his wife a prostitute in the p esence of her feighnagh, 52 lowa, 368; Welch v. Jugenheimer, 56 lowı, bors, and threatened to kill her, was held, in the 11.

absence of proof that his conduct impaired her But she may show, to sustain a claim for exem- health, not to constitute a ground for the recovery plary damages, the number andare of her children, of actual damages in her action against the liquor if she also shows that defendant, prior to selling the seller, and evidence thereof to be inadmissible as liquor to her husband, had knowledge that she had a ground of exemplary damages. Calloway v. Lay. such children. Ward v. Thompson, 48 lowa, 588. don, 47 Iowa, 454.

To render evidence of recoveries from other par- Evidence that plaintiff's husband had been an ties admissible to reduce damages, it must be shown habitual drunkard for twenty years before his that such other recoveries were for sales during the death was held incompetent to reduce the measure same time as that covered by the alleged sales by of damages; but evidence of his habitual drunken. defendant. Jackson v. Noble, 54 Iowa, 641.

ness was properly admitted, on plaintill's behalf, Where a joint action is brought by a married for the purpose of showing that the sale of beer to woman against the seller and the owner of the bim was unlawful. Hut v. Aulman, 69 Iowa, 71. premises, said owner is entitled to a trial by jury to In other States. See Cruse v. Aden, 3 L. R. A, 327, decide whether he consented to or bad knowledge 127 Ni. 231; Brockway v. Patterson (Mich.) 1 L. Re of the sale. Loan v. Hiney, 53 Iowa, 89.

A. 708; Jones v. Bates (Neb.) 4 L, R. A. 495. In an action by a wife for injury to her means of support, a judgment obtained by her in an action

Purchasers may recover purchase money. against another party, for injury thereto accruing, is admissible to show the actual extent of the wrong The Iowa Code, & 1550, allowing purchasers of in. done by the defendant. Engleken v. Webber, 47 toxicating liquor illegally sold to recover the pur. Iowa, 558. Compare Ennis v. Sbiley, Id. 552. chase money by action, is valid. Connolly v. Scarr,

Pr of that the husband bought liquor of the de- 72 Iowa, 2:33. fendant will not sbift the burden upon the latter to A demand for money paid for liquors unlawfully show that his liquor did not cause the former drunk. 'sold must be made before an action therefor is enness. Macleod v. Geyer, 53 Iowa, 615.

maintainable. Schober v. Rogenfield, 75 Iowa, 455. Proof that the vendor did not know that such An agent making illegal sales of liquor, but not person was in the habit of getting intoxicated con- receiving the purchase price therefor, is not liable stitutcs no defense. Dudley v. Sautbine, 49 Iowa, to an action to recover the amount of such pay. 650.

ments, under lowa Code, $ 1550. Ibid.

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commerce, as intoxicating liquors, is forbidden After that they were held for storage. It sure-
by the tas es, habits and laws of ihe people, it ly will not be contended that the storage of
is not for the courts, by judicial interpretation goods was a continuation of the transportation.
of the Constitution of the United States, to They were stored because the transportation
force them upon the people against their bad ceased.
wisbes, and against the laws of their own en- 5. It is made plain by a consideration of the
actment. The people of the State, in their facts that the Railroad Company held the
sovereign capacity, as rulers of their own do- liquors under special arrangemeni with Con
mestic affairs, may declare that intoxicating Creeden. Six successive shipments of liquor,
liquors shall not be sold in the State for use as each containing less than five gallons, were
a beverage. The provision of the Constitution held for from six to fifteen days before they
of the United States in question cannot pullify were seized, and it bad been the practice of
such a state law, which is enacted in the exer- the Railroad Company for some time before
cise of full authority. Under it Congress may these shipments were received to bold ship-
regulate the traflic in such things until it comes ments of wbiskey in the same way. The little
to the point of their use as a beverage. There freight bills of 34 cents on each shipment
the authority to regulate commerce ceases to were not paid until the package was deliv-
extend to the interdicted liquors, for they are cred. Con Creeden did not present demands
no longer subjects of lawful commerce. for the whiskey, but sent an express wagon to

3. A carrier is a servant of commerce, and is get a jug at a time, as it was wanted for sale protected under constitutional provisions for in the saloon in violation of law. He was the regulation of commerce in the discharge of a notorious saloon keeper and violator of the all the duties of a carrier recognized by the law. The packages were marked "Whiskey.” law. Regulations of commerce reach him Allthe circumstances lead to the conclusion that while he is in the discharge of duties pertain the Railway Company beld the liquor for Con ing to commerce. When he ceases to be a car. Creeden under an agreement that it should aid rier he is beyond the protection provided by bim to evade the law. It cannot, under these regulations for commerce. If he ceases to be a circumstances, base any defense upon the fact carrier and becomes a warehouseman, be can that its freight charges were pot paid. Had not be protected as a carrier.

it dealt with Con Creeden with a purpose to Recurring to the facts, it will be remembered obey the law, it would not have permitted its that the liquor in question had been received at freight bills to remain unpaid for so many days, the place of destination from six to fifteen days and would not have permitted its warehouse to prior to the seizure, and was kept in the rail- be used as a place where liquors kept for unlaw. road freight house, or warehouse used for stor ful sale could be conveniently concealed and ing freight transported or for transportation protected. In its attempt thus to violate the upon the railroad. It is a familiar rule of the law, and to aid a notorious violator of the law law that upon the arrival of freight at the place to evade its provisions, it loses all claim or of destination, and its deposit in the carrier's lien which it bad, either as a carrier or warewarehouse, his responsibility as carrier ceases. houseman, for its freight bills of 34 cents each He becomes, as to the freight and the consign-upon each jug of whiskey, or and consignee, a warehouseman. Francis A violator of the law will not be enabled to v. Dubuque & 8. C. R. Co. 25 Iowa, 60; Volir justify his offenses, and escape punishment v. Chicago & N. W. R. Co. 40 Iowa, 579; 2 therefor, on the ground of rights of property Am. & Eng. Cyclop. Law, 881; Ang. Carr. or other rights which he holds in things used 5th ed. $ 304, and cases cited in notes.

in the commission of the offense. Con Creed. The defendant did not, therefore, bold the en’s right of property in the whiskey cannot liquor as a carrier, but as a warehouseman. sbield him from the effects of his unlawful acts As such he was the agent of Con Creeden, the in keeping the whiskey for unlawful sale. bailor.

Nor can the Railroad Company, which was en4. But counsel for defendant say that the gaged with and aided him in tbe violation of goods became impressed with the character of the law, defeat the proceeding and escape the interstate commerce, and retained that charac- judgment of the law, on the ground that it has ter after they went into the custody of the a lien for trifling sums upon the liquors which warehouseman. In truth commerce, so far as it was keeping in violation of law. The foretransportation is concerned, ceased to have going discussion disposes of all questions in the connection with the liquors when they ceased case. to be held by the carrier for transportation. The judgment of the District Court is affirmed.



George WEBB.

(....R. I.....)

by the steamboat 'company to receive and dis-
charge all passengers, although the rules of the
wharf forbid any but private carriages, or hack-
ney carriages which are licensed, to stand upon
the wharf.

(November 30, 1889)

An unlicensed hack driver specially or

dered for a steamboat passenger is not a tres. passer in going with his carriage, for the purpose of meeting such passenger, upon a wharf used

recover damages for the alleged wrongful


entry of defendant upon plaintiff's wharf for ways, except on the licensed stands, and none the purpose of soliciting passengers as a hack- are allowed to occupy a stand without a license. man. Judgment for defendant.

But the wbarf is leased to a common carrier of The facts are fully stated in the opinion, passengers, with a provision that the space east

Messrs. Francis B. Peckham and Sam. lof the restaurant shall be reserved for the use uel R. Honey for plaintiff,

of private carriages of passengers arriving at Messrs. William P. Sheffield and Wil. the wharf. liam P. Sheffield, Jr., for defendant. The question of right, therefore, is the same

as it would be between passengers and a comStiness, J., delivered the opinion of the pany which owns its terminus. While such

ownership carries with it a right of control, in The plaintiff is owner of Commercial Wharf, most respects the same as in private property, in Newport, a part of which is leased to the a railroad station or steamboat wharf is, to Newport & Wickford Railroad & Steamboat some extent, a public place. The public bave Company as a terminus. To preserve order the right to come and go there for the purpose upon the wharf, stands are let for backney car. of travel; for taking and leaving passengers; riages, and the following rules are prescribed and for other matters growing out of the busi for its use:

ness of the company as a common carrier “Rules for Hackmen and Others. But the company has the right to say that no "1. Drivers of hackney carriages shall re- business of any other character shall be carried main on or near their carriages, except when on within the limits of its property. It has the carrying baggage to or from them,

right to say that no one shall come there to so2. No one shall occupy a back stand or licit trade, simply because it may be convenient express stand except the licensee or his em- for travelers, and so to say that none, except ployés.

those whom it permits, sball solicit in the busi*3. No backney carriage or express wagon ness of backing or expressing. Wben notice sball stand on the space to the eastward of the of such prohibition has been given, the license restaurant building, or on the roadways, except which otherwise might be implied is at an end, on licensed hack stands, even though ordered and it is the duty of persons engaged in any in advance by a passenger.

such business to heed the notice and to retire East of the restaurant building is a plank from the premises. Barney v. Oyster Bay & walk for passengers, and east of the walk a II. Steamboat Co. 67 N. Y. 301; Com. v. Power, space is reserved for private carriages. The 7 Met. 596. rest of the wharf is used for sidewalks, road. But, while this is so, the company cannot ways, and buildings. The defendant, driver deprive a passenger of the ordinary rights and of a hackney carriage in Newport, went to the privileges of a traveler, among which is the wharf on the day in question for a lady who privilege of being transported from the terwas to arrive in the boat, as he had been or- minus in a reasonably convenient and usual dered to do by the passenger, or someone in way. A company cannot compel a passenger her behalf. He backed bis hack as near as he to take one of certain carriages, or none at all; could to the space reserved for private carriages, nor impose unreasonable restrictions, which when he was ordered to leave the wharf by the will amount to that. If a passenger orders a superintendent, upon the ground that he had carriage to take bim from the terminus, such no right to be there, having no license from carriage is, pro hac vice, a private carriage, not the owner. The plaintiff claimed that the in the sense that the passenger has a special wheels of the defendant's carriage were backed property in it, so as to be liable for the driver's on to the plank walk, but, upon all the testi negligence, but in the sense that it is not mony, we are not satisfied this was so, or, “standing for hire.” Masterson v. Short, 33 if so, that it was anything more than accidental. How. Pr. 481. At any rate the order to leave the wharf was The driver is not engaged in his vocation of not put upon this groupd, but because he had soliciting patronage, but is waiting to take one po right there. Upon receiving the order to with whom a contract has already been made. leave, the defendant stated, both to the plain. No question is made that a passenger muy bave tilf and to the superintendent of the wharf, his own carriage enter the premises of a carrier that he bad been ordered there for a passenger, to take him away; but to say that one who is and he refused to leave. The plaintiff then not so fortunate as to own a carriage shall not called a policeman, who moved the carriage to be allowed to call the one he wants, because it another place in the roadway, where the de- is a backney carriage, would be a discriminafendant remained until the boat arrived, when tion intolerable in this country. Yet this is he took his passenger and drove away. The really the plaintiff's claim. Every passenger passenger was an infirm lady, who had been has the right, upon the premises of the carrier, accustomed to ride with the defendant, and to reasonable and usual facilities for arrival one who was obliged to use a stool, which he and departure; and, so far as this includes the had with him, to aid her in getting into the right to be taken to and from a station or carriage. The plaintiff sues in trespass, and wharf, it is immaterial whether he goes in a the defendant justities under a right as servant private or a hired carriage. Decisions upon of the passenger. The question is whether the ibis question have not been numerous, and we defendant had the right to enter and remain know of but one directly in point, although in upon the wharf to take the passenger, notwith others there are dicta which indicate what is standing the rules and the order to leave. We understood to be the law. understand the rules to forbid an unlicensed Summitt v. State, 8 Lea, 413, was a convic hackney carriage to stand upon the wharf at tion of the defendant, a watchman in a depot, all; for none are allowed to stand in the road for assault in ejecting a hackman therefrom

The company bad forbiddep backmen to enter it was held that an umpibus proprietor, carry. the building. Notwithstanding this rule, the ing passengers to and from a station, could not right of a hackman to go into a part of the maintain an action for a refusal to allow him to depot to obtain the baggage of a passenger, drive bis vehicle into the station yard. As the whose check be bad, was not controveried. proprietor was not using or seeking to use the The prosecutor, baving the check of a passen- railway, it was considered that the company ger, was in another part of the depot; but it owed him po duty; Jervis, Ch. J., said a paswas held that the defendant was not justified senger would, no doubt, have a right of action, in ejecting him altogether from the station, and if unduly obsiructed, but a violation of duty to the conviction was sustained.

him would not give an action to the plainiiff. Tobin v. Portland, S. & P. R. Co. 59 Me. It is to be observed that the recent English cases 183, was an action for damages by a hackman are mainly controlled by Statute (17 and 18 who was injured by stepping on a defective plat- Vict. chap. 31), to wbich the Massachusetts form when leaving a passenger at the station. statute is similar. They relate chiefly to the The court says: “The backman, conveying question whether a prohibition to one, to ply passengers to a railroad depot for transporta for passengers within a station, when the same tion, and aiding them to alight upon the plat- right is granted to another, is an undue prefform of the corporation, is as rightfully upon erence, under the Statute. It is generally the same as the passengers alighting.

held that it is not. See Beadell v. Eastern In this case it was not claimed that any rules Counties R. Co. 2 C. B. N. S. 509; Painter v. had been violated.

London, B. & 8. C. R. Co. Id. 702; Hole v. The recent case of Old Colony R. Co. v. Digby, 27 Week. Rep. 884. Tripp, 147 Mass. 35, 6 New Eng. Rep. 366, In the latter case it seems to be conceded that was an action of trespass against an expressman one going bona fide to meet a passenger wbo solicited patronage in the plaintiff's station, would not be guilty of trespass. contrary to its rules. · W. Allen, J., says: In Marriott v. London & 8. W. R. Co. 1 C. “Passengers taking and leaving the cars at the B. N. S. 499, the defendant company was orstation, and persons setting down passengers ordered to admit the complainant's omnibus into delivering merchandise or baggage for trans- the station to receive and set down passengers portation from the station, or taking up pas- and goods, as other public vehicles were adsengers or receiving merchandise that had been mitted. Upon the question before us, we do transported to the station, had a right to use not think these cases are in conflict with the the station buildings and grounds, superior to views we bave above expressed. the right of the plaintiff to exclusive occu- The case at bar differs from Barker v. Midpancy. All such persons bad business with land R.Co., supra, in this: that bere the backney the plaintiff, which it was bound to attend to driver is not plaintiff, seeking to recover damin the place and manner wbich it had provided ages for the revocat on of a license to go upon the for all who had like business with it."

wharf, or for a breach of duty to another, but A statute of Massachusetts prescribes that the defendant against an alleged trespass, who railroad corporations shall give to all persons relied upon his right as servant of the other to equal facilities for the use of its depot. The justify his being there. We think the justifi. court beld that this statute applied only to the cation is sufficient. It is substantially given relations between common carriers and their by the terms of the lease to the steamboat compatrons, or those who had the right to use the pany. This does not deprive the owner of the station. It did not give the defendant the right general control of his wbarf, nor interfere with to go there to solicit business because another his reasonable rules for its management. It had the right. See also Harris v. Stevens, 31 simply secures to a passenger the common Vt. 79.

privilege of a passenger, and enables the back. In Markham v. Brown, 8 N. H. 523, an ac- ney driver to shield himself from an apparent tion of trespass, brought by an innkeeper violation of the rules only when he is acting, against a stage driver, the court says the de- bona fide, as the servant of such passenger, fendant bad clearly a right “to go to the plain. This qualification guards the owner from an intill's inn with travelers, and he might of course cursion of unlicensed drivers under a mere prelawfully enter it for the purpose of leaving tense of serving passengers, and also confines their baggage and receiving his fare.'

the right of soliciting business on his premises The case most nearly in support of the to those whom he may permit. plaintiff's contention of those we have seen is We give judgment jor the defendant for his Barker v. Midland R. Co. 18 C. B. 46, where I costs.


Charles N. WOOD et al.

upon consideration that the will granting the 0.

power shall not be contested, is enforceable. Willard A. BULLARD.

2. A covenantee, who with the means at hand

of knowing all the facts accepts his share of (....Mass.....)

money paid by the covenantor for a release from

his obligation, will be precluded from afterwards 1. It seems that a covenant under seal proceeding to enforce the covenant.

by a life tenant, having power to dispose of 3. Proceedings by an administrator of the remainder of the estate by will, to refrain

a deceased covenantee to carry out an from disposing of a portion of such remainder agreement by suob decedent to release, and to procure the other covenantees to release, the contract bas been fully performed so that the covenantor from his obligation, will not estop insane party has had ihe full benefit thereof, him from setting up an independent right be- and the circumstances are such that the parties longing to him as a covenantee to enforce the cannot be put in statu quo, such a contract covenant, if be has not ratified or profited by the cannot be rescinded by the lunatic himself if agreement, although they may preclude him from be becomes of sound mind nor by his legal rep exercising any right to enforce the covenant which be may claim through or on behalf of the

resentatives. decedent.

Molton v. Camroux, 2 Exch. 489; Beavan v. 4. The fact that distributees who have McDonnell, 9 Exch. 309; Niell v. Morley, 9 Ves. received a portion of the estate of a de- Jr. 478; Loomis v. Spencer, 2 Paige, 153; Nero cedent, who contracted to procure covenantees

York Mut. L. Ins. Co. v. Iunt. 79 N. Y. 541; to release a covenantor from his obligation, may Johnson v. Stone, 35 Hun, 380; Riley v. Albaný be called upon to contribute towards the dam- Sav. Bank, 36 Hun, 513; Young v. Stevens, 48 ages which may be recovered for the breach of N. H. 133; Scanlan v. Cobb, 85 III. 296; Beals such contract, will not preclude them from exer- v. See, 10 Pa. 56; Lancaster Co. Nat. Bank v. cising their right as covenantees to enforce the Moore, 78 Pa. 407; Behrens v. McKenzie, 23 covenant, where their liability will in no event Iowa, 333; Abbott v. Creal, 56 Iowa, 175; Ab be co-extensive with their claim, and there is no exander v Ilaskins, 68 Iowa, 73; Brodrib v.

means of determining wbat such liability will be. Brodirib, 56 Cal. 563; Wilder v. Weakley, 34 5. The words “then surviving,” in a will Ind. 181; Fay v. Burditt, 81 Ind. 435; Physio

giving a woman power to dispose of an estate by Medical College v. Wilkinson, 6 West. Rep. will, and, in case of her failure to make a will, 585, 108 Ind. 314; Hopson v. Boyd, 6 B. Mon. directing payment at her decease of one half the 296; Rusk v. Fenton, 14 Bush, 490; Gribben v. fund to testator's heirs-at-law then surviving, they taking by right of representation, and the Maxwell, 34 Kan. 8; Shoulters v. Allen, 51 other balf to the beirs of such woman then sur- Mich. 529; Chew v. Baltimore Bank, 14 Md. viving, they taking by right of representation, 299; Yauger v. Skinner, 14 N. J. Eg. 389; refer to the time of the death of the woman and Eaton v. Eaton, 37 N. J. L. 109; Matthiessen give the half of the fund to the persons who at v. McMahon, 38 N. J. L. 536; Carr v. Holliday, that time are testator's beirs-at-law.

5 Ired. Eq. (N.C.) 167; Riggan v. Green, 80 N.

C. 236; Encking v. Simmons, 28 Wis. 272; (April 1, 1890.)

Lincoln v. Buckmaster, 32 Vt. 652.

The administratrix ratified the release, and

of report from the usuprane nudicial Court said release and the covenant therein are bind

for County (Holmes, J.) for the opinion of the full court of a suit brought to Allie v. Billings, 6 Met. 415; Arnold v. Richcompel the specific performance of an agree- mond Iron Works, 1 Gray, 434. ment, not to dispose of certain property by Abigail W. Smith, took no interest in the will. Decree in favor of two plaintiff's and property, under the provisions of the will beagainst the others.

cause she was not an "heir-at-law then surviv. The facts sufficiently appear in the opinion. ing;” that is, living at the time of the death of Mes«rs. Robert M. Morse, Jr., Thomas Caroline A. Wood. H. Armstrong and William E. Jewell, Denny v. Kettle, 135 Mass. 138; Coceny v. for plaintiffs:

McLaughlin, 2 L. R. A. 448, 148 Mass. 576. The evidence as to the receipt of the money Hence the children of Abigail W. Smith, the by plaintiffs was not sufficient to create an es- plaintiffs, Mrs. Moor and Charles W. Smith, toppel.

took no interest in the property of Caleb Wood See Andre108 v. Lyon, 11 Allen, 349; Povoard by descent or devise from their mother, Mrs. V. Hudson, 2 El. & Bl. 110; Pickard v. Sears, Smith, and they took no interest in the prop6 Ad. & El. 469; Freeman v. Cooke, 2 Exch. erty under the provisions of the will; because 663; Turner v. Coffin, 12 Allen, 401; Carroll v. they were not “heirs-at-law” of said Caleb Manchester & L, R. Co. 111 Mass. 1; Tyler v. Wood. Odd Fellous Mut. Relief As8o. 5 New Eng. Rep. Abbott v. Bradstreet, 3 Allen, 587; Dove v. 191, 145 Mass. 134; Audenried v. Betteley, 5 Torr, 128 Mass. 38: Whall v. Converse, 5 New Allen, 382; Plummer v. Lord, 9 Allen, 455; Eng. Rep. 823, 146 Mass. 345. Langdon v. Doud, 10 Allen, 433; Peaslee v. Peaslee, 6 New Eng. Rep. 571, 147 Mass. 171; C. Allen, J., delivered the opinion of the Plymouth v. Wareham, 126 Mass. 475; Hanra- court: han v. O'Reilly, 102 Mass. 201; Brigham v. In August, 1877, Caleb Wood died childless, Fayerweather, 3 New Eng. Rep. 759, 144 Mass. leaving a widow, Caroline A. Wood, and a will 48.

wberein he devised the residue of his estate to The administrators of an insane intestate can- a trustee, in trust, to invest the same and pay pot ratify a contract made by him, although over to her such sums or parts thereof as she the other party cannot be restored to the same might from time to time desire, and upon her position as before.

decease to dispose of the trust fund then rema n. Norton v. Norton, 5 Cush. 524; Valpy v. Rea, ing 18 she might by her will direct; and in case 130 Mass. 384; Brigham v. Fayeruoeather, supra; she should fail to make a will, then to pay at Molton v. Camroux, 2 Exch. 487.

her decease one half of said trust fund to his Mr. Samuel Hoar, for defendant: heirs-at-law then surviving, they taking by

When a person who is non compos mentis, right of representation, and one half to the but apparently of sound mind, enters into a heirs-at-law of his wife then surviving, they contract that is fair and reasonable with a per- taking by right of representation. son who is ignorant of his incapacity and who His heirs-at-law at the time of bis death (betakes no advantage of his infirmity, and the sides his widow, who was a statutory beir)

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