secure the amount necessary to pay the balance due to said Joseph Newall & Co., offered to return to them the property so purchased, and to replace matters as nearly as possible in the same condition as they had been prior to the execution of the agreement between said parties relative to such sale and purchase, which offers were declined by said Joseph Newall & Co., who claimed to be entitled to a lien upon said $200,000 worth of bonds so secured by said mortgage. Whereupon the complainants sought the aid of the court, and urge that the agreement under which said purchase was made ought to be rescinded, because the same has not been, and cannot be, performed in its essential and material parts, and because its performance is impossible; that, because it is impossible to sell said bonds at par, it is also impossible to carry out the agreements dependent upon such sale; and that, therefore, such bonds are no longer necessary or desirable, and ought to be canceled, and that the mortgage deed executed for the purpose of securing said bonds should be discharged.

It is contended by the respondents that, said Newalls having fully executed their agreement, they are in no wise affected by the failure to sell said bonds at par, and that, under the vote pledging said bonds as aforesaid, they are entitled to a decree establishing and enforcing a lien upon the same to secure the amount due them under said agreement. We find that said Joseph Newall & Co. have fully complied with the terms of their agreement, except that they have withheld a sum of money that was to have been transferred to the complainants, but, as under the agreement the complainants are indebted to them in an amount greatly in excess of the sum so retained, that amount may well be treated as a partial payment made by said complainants in order to avoid the idle ceremony of handing the same over and back again, and in no event would it constitute a ground for rescinding the agreement. The only part of the agreement that has not yet been performed is the part relating to payment.

The complainants have not paid the purchase price as they agreed, and their excuse is that they have been unable to sell their bonds at par, that said bonds cannot be sold, and that they are powerless to procure the amount necessary to enable them to perform their part of the agreement, and therefore that the performance is impossible. In other words, the complainants' claim, in effect, is that they have bought something beyond their means, or which they cannot pay for, and therefore that they should be exonerated from the consequences of their own act. They make no charge of fraud, deceit, or concealment of fact, nor that the price under the agreement is unreasonable.

We see no reason for rescinding the agreement that has been executed on the part of Joseph Newall & Co., and therefore refuse to cause such rescission to be made, or to

cause a reconveyance of said property to be made by said complainants to said Joseph Newall & Co. But, on the contrary, we find that said agreement has been executed by said Joseph Newall & Co., and that they are entitled to recover from said complainants the balance due them under said agreement, with interest, and also are entitled to have and maintain a vendor's lien upon the real estate by them sold to said complainants for the unpaid portion of said purchase money. We find that the mode of payment agreed upon by said parties has become impossible; that said bonds cannot be sold at par, even by virtue of a decree that they be sold at par for the benefit of the respondents Newall & Co. under said pledge. The parties should be relieved from the consequences of having them, and the mortgage securing them, outstanding, one of which is the present priority of said mortgage over said vendor's lien. Therefore we determine that said bonds shall be delivered up to be canceled, and that said mortgage shall be discharged.

(72 Vt. 85)

MITCHELL et al. v. BLANCHARD et aì. (Supreme Court of Vermont. Windsor. Dec. 8, 1899.)

TRUST-BILL TO ENFORCE-IMMATERIAL ALLEGATION-EQUITY JURISDICTION-PROBATE COURT-POWER ΤΟ ENFORCE TRUST-DISCOVERY.

1. Where the use of real estate had been devised to the orators for life, remainder to their heirs, and they filed a bill to enforce a trust arising from the sale of such real estate, the allegations that the expenses of administration were paid, and that the real estate had been turned over to the orators under the will, and that on sale of such realty the fund was set apart in trust for the orators, were immaterial; since the law stamps the proceeds of such sale with the same trust that the will imposed on the property.

2. A bill to compel a trustee to account and make discovery in regard to a trust fund arising from the sale of real estate, the use of which had been devised to the orators for life, remainder to their heirs, was properly dismissed on the ground that the probate court had power to grant adequate relief.

3. Under V. S. § 2613, providing that the probate court may appoint trustees in cases not otherwise provided for, when the use of property, real or personal, descends to a person for life, the probate court has power to appoint a trustee for a fund arising from the sale of real estate devised to the orators for life, remainder to their heirs; since the word "descends," as used in the statute, includes estates for life which pass by devise, and is not limited to those passing by operation of law on the death of the ancestor intestate.

4. Under V. S. § 2613, providing that the probate court may appoint a trustee in cases not otherwise provided for, when the use of property, real or personal, descends to a person for life, and shall have the same power to enforce such trust as it has in case of guardian of minor children; and section 2771, declaring that if a guardian, creditor, or heir apparent complains to the probate court that a person is suspected of having concealed, embezzled, or conveyed away the money or goods of the ward, the court may cite such person to ap pear before it, and examine him on oath on

the matter of the complaint; and section 2772, authorizing the court, in case the person so cited does not appear, to commit him until he submits to its order,-the probate court has power to compel the trustee of a fund arising from the sale of real estate, which had been devised to the complainants for life, remainder to their heirs and other persons, who had conspired with such trustee to defraud complainants, to appear, and make discovery concerning such trust fund.

Appeal in chancery, Windsor county; Start, Chancellor.

Action by Charles W. Mitchell and Minerva E. Parker against F. W. Blanchard and others. From an order sustaining the demurrer to the bill, the orators appeal. Confirmed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, THOMPSON, and WATSON, JJ.

Gilbert A. Davis, for orators. William Batchelder and J. C. Enright, for defendants.

ROWELL, J. The trust fund in question was derived from the sale of the fee of real estate, the use of which was willed to the orators for life, and to the survivor of them, and, on the death of both, the property, or the avails thereof, are to be equally divided among their legal heirs. The bill gives a detailed history of the fund, and traces it into the hands of the defendant Mitchell; part of it before, and the rest of it after, the appointment by the probate court of the defendant Blanchard as trustee thereof. It alleges that the defendants have conspired together to defraud the orators thereout, and prays that said Blanchard be enjoined from acting as trustee, and another appointed in his stead, to collect, recover, and take charge of said fund, and account therefor under the order and direction of the court of chancery; that the other defendants be enjoined from disposing of said fund, or any part thereof, and that they and the said Blanchard make certain discovery in respect thereto; and for general relief.

We do not regard as material the allegation that the expenses of administration were paid, and said real estate turned over to the orators, who took possession thereof under the will; nor the allegation that on the sale of said estate said fund was set apart in trust for the benefit of the orators. The law stamped the avails of the sale with the same trust that the will imposed upon the property itself, no question being made but that the sale was authorized; and the fact that the parties to the conveyance set apart the avails as alleged does not make it a trust created by them, as contended, but only shows that they recognized the trust created by the will, and intended to have it carried out.

The sufficiency of the bill, both as to discovery and relief, is challenged by demurrer, for that the probate court can afford adequate remedy in the premises; and we are of that opinion. The jurisdiction of the probate court to appoint a trustee of

this fund depends upon the construction to be given to the word "descends," as used in section 2613 of the Vermont Statutes, whereby it is enacted that the probate court may appoint trustees in cases not otherwise provided for, when the use of property, real or personal, descends to a person for life or for years. The orators contend that the word should be taken in its strict legal sense, and confined to the passage of land by operation of law on' the death of an ancestor intestate (Co. Litt. 13b, 237a); that it is opposed, on the one hand, to what takes place when land, on the death of a person, passes to another by gift or limitation to him by designation, and, on the other hand, to the devolution of personal property, which is governed by the rules of distribution. But it is impossible to confine the word to real property, for the statute expressly extends it to personal property. This does not infringe the rule that, when technical legal terms are used in a statute, they are to be taken in their established common-law signification; for it is a part of the rule that they are not to be so taken when a contrary intent appears. Nor can we confine the word to the passage of the use by operation of law, without depriving the statute of its entire force as to life estates, now that dower and curtesy are taken away, if, indeed, it would accord it any force as to such estates before that; for it is doubtful whether those estates descended, within the strict legal meaning of that term, although they vested by operation of law. But, if they did descend, and the word is thus confined, the statute never had any effect as to life estates beyond those estates, for in no other case did or does land descend for life, and in no case, ever, for years, unless we except the interest that minor children once took in the homestead until majority, but which they no longer take. Much less does personal property, or any interest therein, ever descend for life or for years. We are speaking, of course, of estates created by law, and not of estates otherwise created for the life of another, or for years, that are vested in the intestate. It is a canon of construction that every clause and every word of a statute must be given effect, if possible; and that if words, taken in their technical sense, will make a statute inoperative in whole or in part, they will be taken in their popular sense. Applying this rule, we construe the word "descends," as used in the section under consideration, to include cases in which the use passes by will as well as cases in which it passes by operation of law. And this is the construction that obtains in our probate courts, as we learn on inquiry of many of our oldest and most experienced probate judges.

As to discovery, it is sufficient to say that the probate court has power to compel it, and that, therefore, resort to chancery therefor is unnecessary. The section in question gives the probate court the same power to en

force the trusts therein mentioned that it has in case of guardians of minor children. Section 2804 authorizes that court to require such a guardian to render and settle his account at any time; and section 2808 requires the court, when necessary, to examine every guardian upon oath as to the truth and correctness of his account. That court uas, therefore, power to compel the defendant Blanchard, trustee as aforesaid, to discover. Section 2771 provides that if a guardian, creditor, or heir apparent of a ward complains to the probate court that a person is suspected of having concealed, embezzled, or conveyed away money, goods, or chattels of the ward, the court may cite such person to appear before it, and may examine him on oath upon the matter of the complaint; and the next section provides that, if the persun so cited does not appear, and submit to examination, or does not answer the interrogatories lawfully put to him, the court may commit him until he submits to its order. These provisions, being applied to this class of trusts, mutatis mutandis, are ample to compel the other defendants to discover. Affirmed and remanded.

(72 Vt. 1)

RICHARDSON v. CITY OF ST. ALBANS. (Supreme Court of Vermont. Franklin. Aug. 31, 1899.)

ΤΑΧΑΤΙΟΝ EXEMPTION STOCK AND MANUFACTURING CORPORATIONS SHARES IN HANDS OF STOCKHOLDERS-VOTE OF MUNICIPALITY-CONSTRUCTION OF STATUTE. 1. Under V. S. § 365, providing that certain manufacturing establishments, and all capital and personal property used in their business, may be exempt from taxation for a term of years, if the town so votes; and section 411, declaring that in determining the list of a taxpayer the amount of his stocks and bonds which are exempt from taxation shall be deducted from the appraised value of his personal estate,-where the stock of a manufacturing corporation had been exempt from taxation by a vote of the city in which it was located, its shares of stock in the hands of the shareholders were exempt.

2. An exemption of the capital of a corporation from taxation by vote of the city in which it was located constituted an exemption "by the laws of the state," as used in section 411.

Exceptions from Franklin county court; Tyler, Judge.

Action by A. S. Richardson against the city of St. Albans. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The case was tried upon the following stipulation: "The only question involved in this case is whether the listers of defendant city were authorized under the law to deduct from debts owing by the plaintiff shares of par value stock owned by him in the Fletcher Granite Co., a corporation that was exempted from taxation by a vote of the town and village of St. Albans for a term of years not yet expired, under section 365, V. S., which votes of exemption were prior to the organization of the city, and covered all capital of said company, before deducting said debts

from personal estate to be listed for taxation. If the listers were not authorized to make such deduction, the plaintiff is entitled to recover $165.64 and costs. If they were authorized to make such deduction, the defendant is entitled to recover its costs."

Argued before TAFT, C. J., and ROWELL, MUNSON, START, THOMPSON, and WATSON, JJ.

F. W. McGettrick, for plaintiff. Wilson & Hall, for defendant.

MUNSON, J. Section 362 of the Vermont Statutes provides that certain property therein specified "shall be exempt from taxation," and the list given includes shares of stock in corporations out of the state and stock in railroad corporations in the state. Section 365 provides that certain manufacturing establishments, and all capital and personal property used in their business, may be exempted from taxation for a term of years, "if the town so votes." Section 411 provides that in determining the grant list of a taxpayer the listers shall deduct from any offset claimed by the taxpayer on account of his indebtedness the aggregate amount of his United States government bonds and other stocks and bonds "exempt from taxation by the laws of this state." The defendant's listers reduced the plaintiff's offset by the amount of his stock in the Fletcher Granite Company, a corporation exempted from taxation by the vote authorized by section 365. The plaintiff insists that this reduction of his offset was illegal, claiming, in the first place, that the vote authorized by section 365 does not exempt the stock of a shareholder, and claiming further that, if it does, the stock is not exempted "by the laws" of the state. within the meaning of section 411. It is said that the capital used in the business of a corporation is not the stock itself, but the avails derived from a sale of it; that, when stock is issued, it passes from the control of the corporation, and becomes the individual property of the different stockholders; and that, consequently, an exemption of the capital of the corporation does not relieve its stockholders from a taxation of their shares. But we think this distinction, however properly it might be taken in disposing of some questions, cannot be maintained in determining this question of exemption. It is clear that an exemption of the working capital of a corporation would not afford the relief intended if all its stock was taxed to the individual stockholders. The capital of the corporation and the shares of its stockholders are different forms of the same thing. There is no value to the stock independent of the property which it represents. The property of the corporation is the property of the stockholders who compose it, and the shares held by each represent his interest in the corporate assets. It seems clear that, for the purposes in hand, the capital of the corporation and the shares of the individual

members must be treated as identical, and that an exemption of the capital carries with it an exemption of the individual holding. This view is in line with section 383, which provides that in assessing stockholders for stock in a manufacturing corporation the amount shall be reduced by the value of the real and personal property taxed to the corporation. The question presented has not before this been brought to decision in this state, but it has been repeatedly held in other jurisdictions that, when the charter of a corporation exempts it from taxation, the shares held by its stockholders are also exempt. Cooley, Tax'n, 168. But the plaintiff claims further that, if the vote authorized by section 365 was effective to exempt his stock from taxation, it was not exempted from taxation by the laws of the state within the meaning of that term as used in section 411. It is said that there is a plain distinction between property exempt from taxation by the laws of the state and property exempted from taxation by a municipal vote authorized by the law of the state, and that, certain classes of stock having been directly exempted by section 362, the language of section 411 must be held to refer to that stock. It is certain that exempted property may be separated into two classes by the distinction suggested, but we think it is apparent that the legislature used the term in question in a sense inclusive of both. The provision was designed to preclude the benefit of offset to the extent of a benefit derived from nontaxation. No reason occurs to us for supposing that the legislature intended to distinguish between the two methods of exemption. For the purposes of the enactment it was immaterial whether the exemption was effected by its direct vote or by the vote of somebody to which it had delegated its authority. The phrase in question might well be used as covering both, for the exemption, by whichever method conferred, is by virtue of the law of the state. Judgment affirmed.

(72 Vt. 12)

WEBSTER v. SMITH. (Supreme Court of Vermont. Washington. Aug. 31, 1899.)

BILLS AND NOTES-PAROL EVIDENCE-NEW TRIAL-SURPRISE.

In an action on a witnessed note, evidence is admissible on the part of defendant to show that the note was not witnessed when delivered, since the rule prohibiting the introduction of parol evidence to vary a written instrument has no application when the legal existence or binding force of the instrument is in question.

On Petition for New Trial.

Defendant in an action on a witnessed note told plaintiff's counsel before the trial that the witness' name was not in his handwriting, and the case was prepared on such theory. On trial defendant testified that the signature of the witness was genuine, that witness' wife was the only one present when the note was executed, and that the subsequent aflixing of wirness' name was unauthorized. Plaintiff

Action by George M. Webster against Edward T. Smith on a note. From a judgment in favor of defendant, plaintiff excepts. Affirmed. On petition for a new trial. Granted.

On trial the plaintiff produced the note sued on, which bore the name of one Allen Perry as witness, and introduced evidence tending to show that the note was witnessed according to the statute when it was executed and delivered. The defendant, against objection, was permitted to testify that the note was not a witnessed note when it was delivered, and the admissibility of this evidence was the sole question raised by the exceptions.

Argued before ROSS, C. J., and MUNSON, START, and THOMPSON, JJ.

J. P. Lamson, for plaintiff. S. C. Shurtleff, for defendant.

MUNSON, J. It was not error to permit the defendant to testify that the note in suit was not a witnessed note when delivered. The rule which prohibits the introduction of parol evidence to vary a written instrument has no application when the legal existence or binding force of the instrument is in question. This evidence was not offered to vary the defendant's writing, but to show that the note as presented was not his writing. Judgment affirmed.

On Petition for a New Trial.

The note in suit purports to have been witnessed by Allen Perry. Defendant told plaintiff's counsel before the trial that Perry's name was not in his handwriting, and the case was prepared upon the theory that the defense would accord with this statement. On trial, to the plaintiff's surprise, the defendant testified that Perry's signature was genuine, but that Perry's wife was the only one present when the note was executed, and that the subsequent affixing of Perry's name was without authority. The plaintiff thereupon moved for a continuance to enable him to procure the attendance of Mrs. Perry, which motion was overruled. Neither the plaintiff nor his counsel knew that Mrs. Perry was present at the execution of the note until the defendant so testified. The plaintiff now produces in support of his petition the testimony of Mrs. Perry that her husband was present when the note was executed, and affixed his name as a witness in defendant's presence. This presents a case which entitles the plaintiff to a new trial. New trial granted.

(72 Vt. 15)

applicable thereto and the order of the court,

1. Where the court required the assignees of an insolvent to give bond in a certain sum, and such assignees voluntarily gave separate bonds of the required amount, such bonds were valid, and the obligor could not avoid liability by saying that the statute contemplated a joint bond.

2. Where assignees of an insolvent voluntarily give separate bonds for the required amount under an order of court which does not require separate bonds, and afterwards they are directed to pay certain sums to certain creditors, and one of them, having sole possession of the funds, makes default, the creditors may pursue either bond until satisfaction is obtained.

3. Where creditors of an insolvent, having the right to pursue the bond of the assignee because of his retention of funds directed by the court to be paid them, sue on the bond, evidence that the misappropriation was in fact by the principal of the bond is both immaterial and harmless.

Exceptions from Chittenden county court; Thompson, Judge.

Action by the court of insolvency against M. H. Alexander and others on a bond. From a judgment in favor of the prosecutor, defendants except. Affirmed.

One Arthur W. Huntley was adjudged to be an insolvent debtor by the court of insolvency for the district of Chittenden, and the defendant Alexander and one Nichols were duly elected assignees of the estate in insolvency of said Huntley, and acted as such. The court required them to give a bond, with sufficient surety, in the sum of $2,000, for the faithful discharge of their duties as assignees. Thereupon each assignee gave his separate bond, with surety; the defendant Lowrey being surety on the bond given by said Alexander. These bonds were accepted by the court. On the filing of the assignees' account the court found the sum of $1,422.81 to be in their hands, and made an order by which they were directed to pay certain sums in dividends to the creditors of said insolvent estate who had proved their claims, among whom were the prosecutors in this suit, to whom the assignees were directed by said order to pay specific sums of money to which they were entitled. Said prosecutors were never paid any part of said sums by either of the assignees. On evidence admitted pro forma, under objection by the defendants, the county court found that at the time distribution was ordered as above stated the assignee Alexander had in his possession the funds with the possession of which both assignees were charged, and had ever since retained the same, and that no part thereof had since come into the hands of the assignee Nichols, Alexander having contrived to get sole possession of such funds at some time prior to the order of distribution. The validity of the separate bonds, under the statute

admissibility of the evidence received under objection, were the questions made in the

case.

Argued before ROSS, C. J., and TAFT, TYLER, MUNSON, and START, JJ.

Cushman & Mower, for plaintiff. J. J. Monahan and George W. Kennedy, for defendant.

MUNSON, J. The order of the court of insolvency required the assignees to give a bond, with sufficient surety, in the sum of $2,000. The assignees tendered separate bonds of the required amount, which were accepted by the court. The order did not require the giving of separate bonds, and there is no ground for saying that the bonds given were extorted by assumed authority. Separate bonds having been voluntarily given, the obligors cannot avoid liability to the creditors by saying that the statute contemplated a joint bond. The court of insolvency found a certain amount in the hands of the assignees for distribution to the creditors, and made an order by which the assignees were directed to pay certain sums to the prosecutors herein. It will be noticed that the order charges both the assignees with the possession of the funds and the duty of payment, and the default arising from the failure to comply with this order must necessarily be a joint default. But this joint default of the assignees involved the neglect of each, and it is to be treated as the several default of each as far as the remedy is concerned, for the obligors have voluntarily contracted that it may be so treated. It necessarily follows that the creditors may pursue either bond until full satisfaction is obtained. It is not necessary to consider what, if any, remedy the obligors of the bond sued upon may have against the obligors of the other bond. The evidence received to show that the misappropriation was in fact by the principal of the bond sued upon was both immaterial and harmless. Judgment affirmed.