conceded that partition cannot be made by metes and bounds, but must be by sale. Counsel has cited numerous cases in relation to conveyances by tenants in common of a specific portion of the common property, by metes and bounds, which he claims establish certain classes of cases as the only cases in which such conveyances will be upheld, and he contends that the conveyance in the present case does not fall within either of these classes. With reference to these cases we deem it necessary only to refer, as we did in our former opinion, to the rule recognized by this court in Crocker v. Tiffany, 9 R. I. 505, 506, 512, which seems to us the true rule as to the extent to which such conveyances should be upheld. That rule is that the conveyance will be sustained, provided effect can be given to it without prejudice to the rights of the cotenant. Our decision rested upon the conceded fact that partition in the present instance could be made only by sale, and not by metes and bounds. It is quite possible that, if partition was to be made by metes and bounds, that effect could not be given to the deed without prejudice to the rights of the cotenants, in which event it could not be sustained. But, where the partition can be made advantageously only by sale, we see no difficulty in giving effect to the deed by a division of the proceeds, without prejudicing the rights of any one, especially in a case in which the lot to be sold is a small parcel, containing only 2,446 square feet, no part of which is more valuable than another, since the entire lot is none too large for the erection of a desirable building for business or other uses.

Counsel also criticises the opinion because it disregarded the existence of the building covering the whole of the specific portion, but not the whole lot. It is true that we did not take into account this building. It was not suggested, either in the answer or in argument, that the building was of any particular value, and it did appear from the evidence submitted that it was a very old structure; it did not occur to us that it was regarded by the parties as of any value for the purpose of sale. The omission to take it into account, however, if an error, was an error resulting to the advantage of the respondents Bickerton, since their share of the proceeds arising from the sale would be increased by the two ninths of the proceeds of the portion of the buildings specifically conveyed by the deed, in which they have no interest. If it is desired, provision can be made in the decree for an appraisal of the building for the purpose of sale, and for a division of its value among the parties according to their interests.

the decease of M., then I give and bequeath such residue and remainder to D., her heirs and assigns, forever, provided the amount does not exceed $3,000." Held, that the legacy of $3,000 vested in D. on death of testator, payment being postponed until the death of M.

2. Such legacy to D. will draw interest from the death of M.

3. Part of the trust estate consisted of joint notes of residuary legatee and her husband, given on account of purchase money of a farm conveyed to such legatee. Held, that such notes were equitably the debts of such legatee, and the amount thereof should be deducted from the legacy.

4. Testator gave the residue of his estate in trust to support of M. for life, and remainder to D., provided the amount did not exceed $3,000, and all over and above said $3,000 to the children of his nephews and nieces aforenamed in equal proportions, including the children of said M. and the children of F., deceased, "and, if any of said children die, then the proportion of such as shall die to go to their surviving brothers and sisters, in equal proportions to each." Held, that the excess of the trust estate over $3,000 vested at testator's death in the children of his nephews and nieces and children of M. and F., subject to be divested by the limitation in favor of the brothers and sisters.

Bill in equity by Zechariah Chafee, as . executor, against William H. Maker and others, for instructions, and the construction of the will of Calvin Dean, deceased.

Calvin Dean died May 6, 1856, leaving a last will dated September 14, 1854, which was proved before the municipal court of the city of Providence, June 10, 1856. By this will he made certain specific gifts, directed his executor to sell all the rest of his estate, and from the proceeds made a large number of pecuniary legacies, many of them to his nephews and nieces. The residuary disposition was as follows: “I give and bequeath unto Robert Knight, of said Providence, all the residue and remainder of my estate in trust to be managed by him to the best advantage, and to appropriate the income of the same for the support and maintenance of the aforenamed Julia Ann Maker, for and during her natural life; and, if the income thereof is not sufficient to give her a comfortable support and maintenance, then to use the principal for that purpose, to be at his discretion to do as he may think proper and right in regard to the matter; and, if there should be anything remaining at the decease of said Julia Ann Maker, then I give and bequeath such residue and remainder to the aforenamed Mary S. Dean, her heirs and assigns, forever, provide the amount does not exceed three thousand dollars; and all over and above said three thousand dollars I give and bequeath to the children of my nephews and nieces aforenamed in equal proportions, including the children of said Julia Ann Maker, and the children of said Mary Field, deceased; and, if any of said children should die, then the proportion of such as shall die to go to their surviving brothers and sisters, in equal proportions to each." Robert Knight died, and Zechariah Chafee was by this court at its March term, A. D. 1869, appointed trustee in his place. Zechariah Chafee died March 30, A. D. 1889, testate, appointing his son Zechariah his executor, who, as such, took possession of the trust estate and managed it. He filed this

bill for instructions after the death of Julia Ann Maker.

James Tillinghast and Theodore F. Tillinghast, for complainant. Isaac H. Southwick, Jr., for respondent Thomas M. Rounds.

MATTESON, C. J. The court decides the questions submitted and instructs the com. plainant as follows:

1. That the legacy of $3,000, bequeathed to Mary S. (Dean) Rounds in the residuary clause of the will of Calvin Dean, vested in her on the death of the testator, although the payment of it was postponed until the death of Julia Ann Maker. The language of the bequest is: "If there should be anything remaining at the decease of said Julia Ann Maker, then I give and bequeath such residue and remainder to the aforenamed Mary S. Dean, her heirs and assigns, forever, provided the amount does not exceed three thousand dollars." A bequest after the death of a particular person, where an antecedent interest is given in the same will, is generally held not to denote a condition that the legatee shall survive such person, nor to define when the legacy shall vest, but only to mark the time when the gift shall take effect, in possession, that possession being deferred merely on account of the life interest limited to the person on whose death the gift is to take effect. Chew's Appeal, 37 Pa. St. 23; King v. King, 1 Watts & S. 205; Minnig v. Ratdorff, 5 Pa. St. 506; Doe v. Considine, 6 Wall. 458; Johnson v. Valentine, 4 Sandf. 36; Rives v. Frizzle, 8 Ired. Eq. 237; Ferson v. Dodge, 23 Pick. 287, 292; Moore v. Dimond, 5 R. I. 121, 129; Rogers v. Rogers, 11 R. I. 38, 72. That Mary S. (Dean) Rounds, having died during the life of Julia Ann Maker, on August 25, 1886, and Julia Ann Maker having also died on February 15, 1891, said legacy of $3,000 is now payable to Thomas M. Rounds, administrator with the will annexed, upon the estate of the said Mary S. (Dean) Rounds. Woerner's American Law of Administration (volume 2, § 460) states it as a proposition requiring no demonstration that when a legatee dies after the testator's death his personal rep. resentative alone is entitled to collect his legacy, not his distributees. And see Purcelly v. Carter, 45 Ark. 299, 302. That interest on the $3,000 is payable from February 15, 1891, the day of the death of Julia Ann Maker, that being the date when the $3,000 became payable. The general rule is that interest is due from the time a legacy is payable. Hearle v. Greenbank, 3 Atk. 695, 716; Wordsworth v. Younger, 3 Ves. 73; Ballantyne v. Turner, 6 Jones, Eq. 224; Kent v. Dunbam, 106 Mass. 586; Bradner v. Faulkner, 12 N. Y. 472; Lupton V. Lupton, 2 Johns. Ch. 614; Dodge v. Manning, 1 N. Y. 298; Wheeler v. Ruthven, 2 Redf. Sur. 491. And when the payment of a legacy is postponed by reason of an intervening estate, or other cause, beyond a year after the testator's death, it becomes payable immediately upon the accruing of the right, and interest is payable from that date. 2 Redf. Wills, (2d Ed.) 466; Laundy v. Williams, 2 P. Wms. 478, 481; Miller v. Philips, 5 Paige, 573. That, it ap

pearing from the testimony submitted that the note of said Thomas M. Rounds and Mary S. Rounds for $1,500, secured by mortgage on the farm in North Kingston, purchased by and conveyed to said Mary S. Rounds, and the note of said Thomas M. Rounds for $117.50, indorsed by said Mary S. Rounds, held by the complainant as a part of the trust estate, were given on account of the purchase money for said farm, and were therefore equitably the debt of said Mary S. Rounds, the amount dre on said notes may be retained by the complainant out of the $3,000 and interest payable to said Thomas M. Rounds, administrator, as aforesaid, for said legacy. Perkins v. Se Ipsam, 11 R. I. 270, 271; Armour v. Kendall, 15 R. I. 193, 194, 2 Atl. Rep. 311.

2. That the word "aforenamed," in the latter part of the residuary clause of said will, refers to the words "nephews and nieces," immediately preceding, and not to the word "children." The provision is as follows: “And all over and above said three thousand dollars I give and bequeath to the children of my nephews and nieces aforenamed, in equal proportions, including the children of said Julia Aun Maker and the children of said Mary Field, deceased." To regard the word “aforenamed "as referring to the words " nephews and nieces" would be the obvious natural construction from the grammatical relation of the words. This construction is confirmed by a careful examination of the will as a whole. It was the evident scheme of the testator to treat his nephews and nieces, and also, in general, their children, and also including the children of Julia Ann Maker and Mary Field, aiike. This appears from the fact that he gives to each of his nephews and nieces $1,000, and that with two exceptions, viz., the children of his niece Abigail Clark, deceased, and of his niece Maria Sampson, to each of whom he gives $633.33, he gives to each of the children of his nephews and nieces $300, and a like sum to each of the children of the said Julia Ann Maker, and to each of the children of the said Mary Field, putting the children of the last two named, who were not nieces, but daughters of nieces, upon the same footing in the sharing of his bounty as though they were children of nephews or nieces. Although he does not mention the names of the children of his nephews Calvin Macomber, John Macomber, and Luther Macomber, and of his nieces Betsey Castle and Abigail Stevens, as he did in the cases of the children of his other nephews and nieces, but gives to each of them as members of a class, there does not appear to have been any reason for the difference. It may be conjectured that he did not have a memorandum of their names at hand, or that he thought the gifts to them would be as effectual as if the names were specified, and omitted to mention for that reason. But, whatever may have been the reason, we see nothing in the circumstance to lead us to suppose that he intended to cut off the children of these nephews and nieces from the benefits of the provision in question. If the word "aforenamed" be construed as referring

to "nephews and nieces," instead of to "children," all the children of his nephews and nieces, together with the children of Julia Ann Maker and of Mary Field, are constituted a class, each of whom would receive an equal share with the rest, and thus the general intent of the testator, apparent in the earlier portions of the will, would be preserved.

3. That neither the issue nor representatives of such of the children of the testator's nephews and nieces as died in the life of Julia Ann Maker are, nor are any nor is either of them, entitled to any part of the trust estate; there being an express limitation over of the proportion of such as shall die to their surviving brothers and sisters. That the legal representatives of Harrison D. Field, the last surviving child of Mary Field, and of Julia Ann Maker, the last surviving child of Calvin Macomber, are entitled to share in the residue of the trust estate as set forth in the next succeeding paragraph.

4. That the residue of the trust estate, after payment of the legacy of $3,000 to Mary S. (Dean) Rounds, is to be divided into as many parts as there were children of the testator's nephews and nieces, including also the children of Julia Ann Maker and of Mary Field, living at his decease, but excluding the said Julia Aun Maker, and that each of such children living at the decease of Julia Ann Maker is entitled to receive one of such parts. That the proportions of such of the children as died during the life of Julia Ann Maker shall be paid to his, her, or their brother or sister surviving at the death of Julia Anu Maker, if there be but one, and, if more than one, shall be equally divided between the survivors. That all the children of Mary Field having died during the life of Julia Ann Maker, their proportions of said residue is to be paid to the legal representative of the last survivor of them, Harrison D. Field; or, should it appear that there are no outstanding claims against his estate, to his widow, Ann M. Field, and to Daniel M. Remington, guardian of his minor children, viz., Leonard R. Field, Maude M. Field, Mable F. Field, and Lyman H. Field, in the proportions in which they are entitled to it under the statute for the distribution of the surplus of intestate estate. Pub. St. R. I. c. 187, § 9. That the proportions of said residue of the trust estate to which the two sons of the testator's nephew Calvin Macomber would have been entitled had they survived their sister, Julia Anu Maker, is to be paid to the legal representative of Julia Ann Maker, unless it shall be made to appear that there are no outstanding claims against her estate, in which event it may be paid to her sons, William H. Maker and Amos Maker, in equal shares.

The considerations which have led us to the conclusions stated in the preceding paragraphs, 3 and 4, are as follows: We had already reached the the conclusion that the $3,000 bequeathed to Mary S. (Dean) Rounds vested in her on the death of the testator, although the payment of it was postponed until the death of Julia Ann Maker. The same reasons for holding that legacy to have vested in her apply

equally in favor of holding that the excess of the trust estate over $3,000 vested in the children of the testator's nephews and nieces and the children of Julia Ann Maker and of Mary Field at his decease. We therefore so hold. Having so vested, the proportion of each remained vested until divested in accordance with the limitation contained in the will, viz.: "And, if any of said children should die, then the proportion of such as shall die to go to their surviving brothers and sisters, in equal proportions to each. Originally the courts held that words of survivorship in gifts of this nature were to be referred to the death of the testator, and therefore that the legatees surviving the testator took as tenants in common, and, in the event of the death of either before the termination of the life or other particular interest, the shares of the one so dying passed to his legal representative. Subsequently a distinction was made between those cases in which the gift was immediate, that is, took effect in possession upon the death of the testator, and those in which possession was deferred until the termination of a life or other limited interest. In the former the words of survivorship still continue to be referred to the death of the testator, while in the latter they are referred to the time of distribution. Still later, it was held that where the gift is not to several, or the survivors, but to several, and, if any of them die before the tenant for life, to the survivors, the words of survivorship are to be referred to the survival of the legatees inter sese, and not to their survival at the death of the tenant for life. This was in the case of White v. Baker, 2 De Gex, F. & J. 55, in which the gift was to A. for life, and, after her death, in trust to pay the same to B. and C. in equal shares, and, in case of the death of either of them in the life of A., then in trust to pay the same to the survivor of them, the said B. and C., his executors, administrators, or assigns. The court held that on the death of B. in the life of A. the whole vested absolutely in C., and was not liable to be divested if he afterwards died during the lifetime of A. Lord Justice TURNER remarked in his opinion that, “where there is a bequest to A. for life, and after his death to B. and C., or the survivor of them, some meaning must of course be attached to the words the survivor.' They may refer to any one of three events,-to one of the persons named surviving the other, to one of them only surviving the testator, or to one of them only surviving the tenant for life; and, in the absence of any indication to the contrary, they are taken to refer to the latter event as being the more probable one to have referred to; but where, as in the present case, the bequest is to A. for life, and after his death to B. and C., and, in case either of them dies in the lifetime of A., the whole to the survivor, it is plain that the words in their natural import refer to the one surviving the other, and the question is not to which of the events above mentioned the testator intended to refer, but whether there is any context to alter the ordinary meaning of the words which he has used." And see, also, Scur

field v. Howes, 3 Brown, Ch. 90; Antrɔbus v. Hodgson, 16 Sim. 450; 2 Jarm. Wills, *721-*743, where the cases are collected and discussed. The gift in the present case is substantially the same as that in White v. Baker, except that the limitation over, instead of being to the survivors generally, is to the surviving brothers and sisters of such as shall die. This restriction upon the limitation does not militate against the construction that the survivorship intended was the survival among the legatees themselves, rather than of their surviving the tenant for life, but might, perhaps, be regarded as strengthening that view. We exclude Julia Ann Maker from taking a share of the bequest in her own right, although she is within the description of the class specified in the bequest, i. e., children of the testator's nephews and nieces, she having been the daughter of Calvin Macomber, a nephew. We think that the exclusion of her children in the bequest manifests an intent on the part of the testator that she was not to take, and therefore the case is not within the ordinary rule relative to gifts to a class.

(17 R. I. 731)

ALLEN et ux. v. KEILY. (Supreme Court of Rhode Island. June 4, 1892.) LANDLORD AND TENANT-RECOVERY OF POSSES: SION.

A tenant, after the expiration of his term, becomes a trespasser, though his holding is in good faith under a color and reasonable claim of right; and the landlord without legal process may forcibly enter, therefore, and eject him. Freeman v. Wilson, 17 Atl. Rep. 921, 16 R. I. 524, followed.

Suit by John Allen and wife against Owen Keily. Judgment for plaintiffs. De. fendant petitions for a new trial. Granted.

John M. Breunan, for plaintiffs. George J. West and John Palmer, for defendant.

TILLINGHAST, J. The only question raised by the exceptions taken to the rulings of the court in this case is whether a landlord can forcibly eject a tenant from his premises, after the expiration of the tenancy, if the tenant holds possession, in good faith, under a color and reasonable claim of right. The defendant requested the court to charge the jury as follows, viz.: First. "If the landlord enter and expel the occupant who wrongly holds a tenement, but uses no more force than is reasonably necessary to accomplish this, he will not be liable to an action of assault and battery, although, in order to effect such expulsion and removal, it becomes necessary to use so much force and violence as to subject him to an indictment at common law for a breach of the peace, or under the statute for making a forcible entry." Second. "If the plaintiff was in possession, but the rent was due more than fifteen days after demand, the plaintiff was a mere trespasser, and could be expelled by the defendant." These requests were refused by the court, and the following was charged in lieu thereof, viz.: "One in possession under a reasonable claim and color of right, honestly believing it, has a right to maintain his posses

"

sion, and no personal violence can be used to expel him." "If Mrs. Baldwin was in possession under a claim of right the defendant had no right to use any degree of personal force to expel plaintiff. In explanation of its charge, and refusal to charge as requested, the court stated the law applicable to the case on trial to be as follows, viz.: "That an owner has the right to put an undoubted trespasser off his premises. But if one is out of possession of property held by another, under a color and reasonable claim of right, he has no right to use personal violence to regain possession." "Hence, if Mrs. Baldwin was in possession under a fair claim of right to remain as tenant, or under her husband's tenancy, on the ground that the defendant had money belonging to one of them in his possession, more than the amount of rent due, on account of which her occupation had been recognized, he had no right to use personal violence to eject her.'

We think this was error. The question at issue, in so far as the tenancy in question was concerned, was whether or not it had been terminated. If it had, the plaintiff was a mere trespasser, and the defendant had the right to use so much force as was reasonably necessary to expel her. If the tenancy had not been terminated, she was not a trespasser, and the defendant had no right to interfere with her. But the question as to whether Mrs. Baldwin was entitled to possession was a mere question of right, depending upon the fact as to whether the tenancy had been legally terminated, and not upon the belief of the tenant as to her right to remain. That is to say, the mere fact that a person honestly believes that he is lawfully in possession of a tenement or messuage does not prevent him from being a trespasser, and liable to be dealt with as such. Possession of real estate is either rightful or wrongful. And the right to the possession thereof, like the right of ownership, is to be determined solely by the evidence subImitted, and the law applicable thereto, and is not dependent upon, or in any degree affected by, the belief of the claimant as to such right. If this were not so, it would be in the power of any one in the wrongful possession of real estate, who believes his possession to be rightful, to compel the person who is legally entitled to the possession thereof to resort to an action at law to recover the same; thus practically nullifying the right which the law confers upon the owner to take forcible possession by expelling the trespasser. Nor do we see that the distinction made by the court between "an undoubted trespasser" and one who holds possession under a color and reasonable claim of right" changes the legal aspect of the case. Mrs. Baldwin was either a trespasser or she was not. If she was, neither her belief that she was not, nor the fact that she held "under a color and reasonable claim of right," was of any importance. The only question of importance concerning this branch of the case was whether she was in fact a trespasser; and this was a question to be determined by the jury, upon all the proof bearing upon that point.

66

The doctrine laid down by this court in Souter v. Codman, 14 R. I. 119, and subsequently followed in Freeman v. Wilson, 16 R. I. 524, 17 Atl. Rep. 921, is in harmony with the current of both the American and English decisions as to the right of a landlord to use physical force in expelling a 'tenant whose term had expired, and we see no reason to overrule or modify the opinions therein expressed. See, also, 2 Tayl. Landl. & Ten. (8th Ed.) §§ 531, 532, and cases cited. We are therefore of the opinion that the court erred in refusing the defendant's requests to charge, and in charging to the contrary, as above set forth. Petition granted.

(17 R. I. 733)

NYE et al. v. Rose.

(Supreme Court of Rhode Island. June 10, 1892.) MANDAMUS-WHEN ISSUED-OFFICER.

Where a city, without legislative authority, established a sinking fund, and appointed respondent commissioner thereof, he is so far engaged in a public service in the nature of an office that mandamus will lie to compel him to pay over such fund on the application of persons authorized to receive the same.

Petition for writ of mandamus by Walter A. Nye and others against James A. Rosa. Granted.

William G. Rolker, for petitioners. David A. Baker and William C. Baker, for respondent.

au

STINESS, J. In June, 1890, the district of Narragansett, without legislative thority, voted to establish a sinking fund for the payment of its bonded indebtedness, setting aside $1,000 for that purpose out of the tax for that year, and ap. pointed the respondent commissioner of said sinking fund. He received said sum, which he invested, and for which he holds the security. In July, 1891, the general assembly enacted Pub. Laws, c. 1035, of July 24, 1891, as follows: "The district council of the district of Narragansett are hereby authorized to establish by ordinance a board of three commissioners of sinking funds, who shall take and have the control, possession, and management of all sinking funds that have been or may be established for the redemption of any bonds, notes, or other obligations heretofore issued, or that may be hereafter issued, by said district; and any person or persons now having possession or control of any such sinking fund shall surrender the same to such board of commissioners when established and appointed under this act." The applicants, so appointed, have demanded the security held by the respondent under the former vote, which he refuses to surrender, upon the grounds, set out in his return, that he is not, and never has been, a commissioner of sink ing funds, and has no sinking fund in his possession; but that he holds the security as the financial agent and trustee of the district, to which only he is accountable. His contention is that there was no legally constituted sinking fund or commissioner under the vote of the district, and hence that he is not liable to mandamus, being neither a public officer nor an officer de facto, because there was no such office

to which he could be elected or into which he could enter. It is not necessary to define the status of the respondent,-whether an officer de facto or a financial agent. He is, at least, with reference to this fund, something more than one acting in a private capacity. He is engaged in a public service, in the nature of an office, to which he was elected, and for the performance of which he has given bond. The matter here involved is one of public concern, in no way connected with the respondent's private rights or interests. The statute imposes upon him a specific public duty, by recognizing the validity of the first sinking fund, so called, and directing him to surrender it to the new board. The petition does not, therefore, seek an order against a mere private citizen in a mere private matter. In The Queen v. Abrahams, 4 Q. B. 157, it was held that mandamus would lie against a private person in the case of a charity. But this petition seeks the enforcement of a statutory command with reference to a public fund. A primary office of mandamus is to compel the performance of a public duty. Shortt, Mand. #227; 2 Dill. Mun. Corp. (4th Ed.) § 824. For this reason an occasion can hardly ever arise when it must not be brought against one who has some connection with a public office, out of which the duty arises. In Kelly v. Wim. berly, 61 Miss. 548, it was held that one who is holding and expecting an office de facto is estopped from setting up in his own defense that there is no such office de jure. In State v. Layton, 28 N. J. Law, 244, the fact that the respondent was holding under a void appointment did not prevent the issuing of mandamus. See, also, Frog Co. v. Haven, 101 Mass. 398; Burr v. Norton, 25 Conn. 103; and People v. Head, 25 Ill. 325. The cases cited by the respondent,-State v. Powers, 14 Ga. 388; State v. Trent, 58 Mo. 571; and McQueen v. Hopkins, 1 Q. B. 161,-to the effect that mandamus does not lie against a private citizen, do not, in our opinion, apply to this petition. Here we have the distinction pointed out in State v. Trent of one holding a "quasi official station." The parties have each a certain duty to perform under the statute, and the applicants have a clear right, for which they have no other specific legal remedy. It is the peculiar province of mandamus to assist in such cases. The respondent's point that the statute impairs the obligation of a contract is not well taken. statute recognizes as valid the act of the electors of the district of Narragansett in creating the sinking fund, and so treats the respondent as a public officer. As such he does not stand upon the relation of a contract, but in obeying the statute he fulfills his legal duty under his appointment as a commissioner. We think a peremptory mandamus should issue.

The

(17 R. I. 746)

NATIONAL PARK BANK V. LEVY et al. (Supreme Court of Rhode Island. June 20, 1892.) CHECK-PAYMENT-GARNISHMENT.

1. Where the parties so agree. a check may be given and received in absolute discharge of a debt; and whether it was so given and received