cation to her of a vile disease; and the forcing her, by threats and importunities, to surrender to or for him her money, her jewels, and her household furniture,— abundantly prove the charge of extreme cruelty.1

2. SAME-CONDONATION.

Ten days before the petitioner filed her petition for divorce, the respondent gave way, without any real provocation, to a fit of violence towards her, and intemperate abuse of her. She continued to live with him as her husband, in her father's house, to the time of filing her petition, without further maltreatment, so far as appears, knowing he had syphilis. The evidence further showed that she was so enfeebled by sickness, and the sufferings she had undergone, that she dreaded to provoke her husband's anger by shutting the door on him. She had reason to fear he might attempt to gain possession of the children, should she exclude him before filing her petition, and she did not know the nature of syphilis. Held, that her acts did not amount to condonation.

Petition for divorce by Florine N. Wilson against Levi Wilson.

Rollin Mathewson, Ziba O. Slocum, and Charles A. Wilson, for petitioner. Walter B. Vincent and George J. West, for respondent.

DURFEE, C. J. We think the charge of extreme cruelty is abundantly proved. The petitioner married the respondent October 2, 1882. She filed her petition for divorce January 20, 1886; and the evidence shows that during the intervening period she suffered from him in greater or less degree four different kinds of cruel treatment, to-wit: Vulgar, profane, and abusive language, often used to or concerning her, in her presence, when she was in very feeble health; blows and other physical injuries inflicted upon her; the communication to her of a vile disease; and the forcing her, by threats and importunities, to surrender to or for him her money, her jewels, and her household furniture, so that, making all due allowance for exaggeration and misconception, we are entirely satisfied that she is entitled to a divorce, unless she has lost her rght to it by condonation. There are cases which hold that, where the charge is extreme cruelty, the defense of condonation is unavailable; but these cases are at variance with the main current of decision, and are in our opinion erroneous. Doubtless, however, the defense is more easily avoided when set up to such a charge than when set up to the charge of adultery. It is a virtue for a wife who is maltreated by her husband to bear with him so long as any hope remains that her patience may be rewarded by his amendment; and therefore her bearing with him has as much the character of probation as of condonation, and, regarded as condonation, it is just that the condonation may be easily forfeited by the husband by conduct showing that he still continued incorrigible; for it is well settled that a condonation is always subject to the condition that the offending party shall not repeat the offense, and also settled, when the offense is cruelty, that treatment much less cruel than would be necessary to be a good ground for divorce will suffice to avoid the defense of the condonation. The petitioner was living in her father's house when her petition was filed. She had been living there for several weeks; her husband living with her up to the morning of the day

Respecting cruelty as a ground for divorce, see Leach v. Leach, (Me.) 8 Atl. Rep. 349; Minde v. Minde, (Mich.) 32 N. W. Rep. 868; Burlage v. Burlage, Id. 866; Whitacre v. Whitacre, (Mich.) 31 N. W. Rep. 327, and note; Vanduzer v. Vanduzer, (Iowa,) Id. 956; Williams v. Williams, (Tex.) 2 S. W. Rep. 823, and note; Haley v. Haley, (Cal.) 14 Pac. Rep. 92; Holyoke v. Holyoke, (Me.) 6 Atl. Rep. 830, and note; Hawkins v. Hawkins, (Md.) 3 Atl. Rep. 753; Whaley v. Whaley, (Iowa,) 27 N. W. Rep. 810, and note; Sharp v. Sharp, (Ill.) 6 N. E. Rep. 21; Williams v. Williams, (Fla.) 2 South. Rep. 768; Peck v. Peck, (Mich.) 33 N. W. Rep. 893; Eggarth v. Eggarth, (Or.) 16 Pac. Rep. 650; Lyle v. Lyle, (Tenn.) 6 S. W. Rep. 878.

The patience and forbearance of a wife during her endurance of her husband's cruel treatment, while entertaining hope of his reformation, will not be construed as condonation. Mack v. Handy, (La.) 2 South. Rep. 181. As to what constitutes condonation, see Stuart v. Stuart, (Mich.) 11 N. W. Rep. 388; Harnett v. Harnett, (Iowa,) 13 N. W. Rep. 408, 7 N. W. Rep. 394; Ford v. Ford, (Mass.) 10 N. E. Rep. 474.

when it was filed. The acts of cruelty which she chiefly relies upon for divorce were committed while she was living with him elsewhere. The evidence shows, however, that, 10 days before the filing of the petition, he gave way, without any real provocation, to a fit of violence towards her, and intemperate abuse of her, which, in our opinion, would have amounted to a forfeiture on his part of any previous condonation, if she had then refused any longer to cohabit with him, as, being in her father's house, she might have done. She lived with him, receiving him as her husband, 10 days longer, and, so far as appears, without receiving any further maltreatment from him. Ordinarily, such conduct would be regarded as a condonation, and it must be so regarded here, unless she can show some excuse for it. It is ordinarily the duty of a party, after making up his or her mind to apply for a divorce, to show his or her good faith by withdrawal from cohabitation. 2 Bish. Mar. & Div. § 38; Anon., 6 Mass. 147.

She makes two excuses. One is that she was so much enfeebled by sickness, and the sufferings which she had undergone, that she dreaded to provoke her husband's anger by shutting the door upon him, and, in fact, was incapable of the effort which his exclusion would cost until it was absolutely necessary for her to make it. She is apparently a person of delicate organization,-one who would naturally shrink from such a trial,-and she was undoubtedly much debilitated' in body and mind. The evidence shows, moreover, that she married without her father's approval, and, owing to some consequent estrangement from him, was thrown, as it were, into the hands of her husband without the moral support of her family, and so acquired a habit of almost utter subjection to his domineering will; a habit which he had confirmed, if we can trust her testimony, by a peculiar practice which he had of mortifying her, from time to time, for his own gratitication. Add to this that she had reason to fear for her children, lest, if he were excluded before her petition was filed, he might attempt to gain possession of them. In the fit of passion which he gave way to 10 days before the petition was filed, one of his threats was that he would leave her, and take her children away with him. In a matter like this, a wife is much more inadequately considered by the courts than a husband, owing to her comparative helplessness; and it has been held that voluntary cohabitation, following acts of cruelty on the part of the husband, will not always operate as a condonation to defeat a petition for divorce. 2 Bish. Mar. & Div. §§ 49-51. The first excuse greatly palliates, if it does not justify, the petitioner's conduct. The second excuse is that though the petitioner knew she had suffered cruel and injurious treatment from her husband, she did not know the extent of the injury. Her husband had syphilis, but nevertheless continued to cohabit with her; the consequence being that she had a syphilitic sore throat. He told her the name of the trouble, but, to exculpate himself, ascribed it to a false cause, namely, drinking from a cup which had been used by a person having it, and, though his own disorder increased, did not restrain himself. It is difficult to imagine a worse or more insidious form of cruelty. The petitioner testifies that she did not know the nature of the disease, notwithstanding he had named it; and, though there were things which might have opened her eyes, we are inclined to believe that it was not until after the physicians, summoned at our request, had given their testimony, that she fully realized to what a shameful and dangerous disorder he had exposed her. It is not to be supposed that a lady, bred in family seclusion, has the same understanding of such matters as the average man. The respondent evidently did not think the petitioner had it. "In a case of this kind," it has been said, "the court ought to see its way very clearly to the fact of condonation before it comes to that conclusion." Ellis v. Ellis, 4 Swab. & T. 154, 157. When the defense is condonation, it is for the respondent to prove it; and of course, if the petitioner did not know what the offense was, she cannot be held to have condoned it; and we may add that it

is the easier to believe she did not know, because it is so difficult to believe that, if she had known, she either would or could have condoned it. Our conclusion is that the defense cannot avail. Petition granted.

SHEPARD v. TAYLOR et al.

(Supreme Court of Rhode Island. February 18, 1888.)

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1. DESCENT AND DISTRIBUTION — INHERITANCE OF EQUITABLE ESTATE LEGAL TITLE FROM TRUSTEE.

T. devised realty to his son W., in trust for another son A. and his heirs, with power to appoint a successor as trustee, or to convey to A. or his heirs as he might think proper. A. died, leaving a widow, and a son, A., Jr., to whom the trustee conveyed the estate. A., Jr., died a minor, leaving no issue. Held: (1) A., Jr., inherited an equitable estate from his father in this land. (2) The conveyance of the legal estate to him was not a gift or devise from the testator, his grandfather, nor a gift from the trustee, his uncle. (3) The legal title is the controlling title in determining the descent, where the equitable estate had merged in the legal estate. 15 R. I. 204, 3 Atl. Rep. 382, affirmed.

2. EQUITY-REHEARING-ERROR OF LAW.

A rehearing in equity will be granted by the court in its discretion, if it thinks the case ought to be reheard, even when the error alleged was simply error of law, and this discretion should be exercised liberally in favor of a rehearing.

On petition for rehearing. Bill of interpleader. After the proceedings in this case reported in 15 R. I. 204-208, 3 Atl. Rep. 382, the respondents other than Martha O. Taylor filed a petition for a rehearing. This petition Martha O. Taylor moved to dismiss, a reargument having already been allowed. After hearing counsel, the court, November 10, 1887, filed the rescript here reported.

James Tillinghast, for petitioning respondents. Nathan W. Littlefield, for respondent Martha O. Taylor.

RESCRIPT.

PER CURIAM. The case of Hodges v. Screw Co., 3 R. I. 9, decided in 1853, has always since then been regarded as settling the practice of this state in regard to the rehearing of suits in equity on petition. The court then decided that a rehearing would be granted, upon petition, by the court in its discretion, if it thought the case ought to be reheard, even when the error alleged was simply error of law; and the court added that the discretion should be exercised liberally in favor of a rehearing. We think that under this decision the petitioners are entitled to be heard on their petition, and that the motion to dismiss should be overruled. Order accordingly.

ON REHEARING.
(February 18, 1888.)

STINESS, J. The opinion given in this case at the October term, A. D. 1885, (15 R. I. 204, 205, 3 Atl. Rep. 382,) rested upon three points: First, that Alexander Taylor, Jr., inherited an equitable estate from his father in the land referred to in the bill; second, that the conveyance of the legal estate to hin was not a gift or devise from the testator, his grandfather, nor a gift from the trustee, his uncle; third, that the legal title was the controlling title in determining the descent, where the equitable estate had merged in the legal. The first point is not disputed. As to the second, we must reiterate that Alexander, Jr., took nothing under the will. Certainly not by devise, for the will, in terms, gave him nothing. An equitable fee was given to his father, and this he inherited. He then got the legal estate from the trustee, by virtue of his inheritance of the equitable estate, which was a right existing outside and independent of the will. If a stranger had bought the equitable fee of Alexander, Sr., he would equally have been entitled to a conveyance from the trustee. But no one would claim in such a case that he took either

by devise or gift under the will, or by gift from the trustee. Whether the word "gift," as used in the statute, be taken in a technical or popular sense, it does not cover this case, since Alexander, Jr., took the legal estate independently of the will by virtue of his ownership of the equitable estate, just as a stranger would have done had he become the owner of it. In other words, he acquired the legal estate as a new estate by purchase. The uncles of Alexander, Jr., contend, however, that William H. Taylor did not convey an estate by his deed, but only executed a power of appointment under the will, and hence that Alexander, Jr., took his estate under the will by virtue of the appointment, and not by purchase under the deed. We do not think this is so. The will contained no limitation of an estate in favor of Alexander, Jr., individually or as one of a class, so as to leave to the trustee either a direction or discretion when to convey. If it had, undoubtedly the grantee in a deed from the trustee would take under the will by virtue of the limitation in his favor. Neither did the will indicate any intention to give a mere power of appointment. The trustee had no power of selection outside of the ownership of the equitable estate. The estate was devised to him in trust to hold, and in his discretion to convey. This discretion, at most, could only apply to the time and circumstances of the conveyance; and the decision in Taylor v. Taylor, 9 R. I. 119, was to this effect. It was also held in that case that the legal estate vested in the trustee, and was not taken out of him by the execution of the uses. We do not think it was the intention of the will to vest anything less than a fee in the trustee. The separation of the legal and equitable estates, the power to appoint a successor and the trust to convey, indicate that the trustee was to hold a fee. It is implied that the trustee under a will takes a legal estate sufficient for the purposes of the trust, whether the limitation be to him and his heirs or not. 1 Perry, Trusts, § 312, and cases cited. Moreover, this point was made in the case of Taylor v. Taylor, supra, where it seems to have been assumed, without the necessity of decision, that the legal estate was a fee. The trustee, then, had a legal estate, commensurate with, and attendant upon, the equitable estate. When the equitable estate was in a person sui juris, he could demand the legal estate of the trustee, as in Taylor v. Taylor, supra. The conveyance of the trustee, therefore, was not an execution of a power operating out of the estate of the testator, but a conveyance of the estate in execution of a trust. If, then, Alexander, Jr., inheriting the equitable estate from his father, received the legal estate on that consideration and in execution of the trust, he became the owner of the entire estate neither by gift nor devise from the testator, nor by gift from the uncle. Upon the union of the two estates in him,-the equitable by inheritance and thus ancestral, the legal by purchase, and thus in him as a new stock of descent,—the question comes whether the descent is to follow the equitable or the legal

title.

It is to be observed that the two estates did not come from the same person. Alexander, Sr., never had the legal title; but if anything could have descended from John Taylor it must have gone to him, for Alexander, Jr., was not the heir of his grandfather. Hence, the rule followed in Wood v. Skelton, 6 Sim. 176, and in Buchanan v. Harrison, 1 Johns. & H. 662, that an heir will not be held to take by devise what he would have taken by inheritance, does not apply. In this case the two titles come from distinct sources. In their devolution, by the provisions of the will the ancestral character of the legal estate has not been preserved within the terms of the statute. If the legal estate controls, the descent is to the mother; if the equitable, to the uncles. Upon the authorities cited in the former opinion, no decisions to the contrary having been brought to our attention, we must adhere to the conclusion that the legal estate controls. The following passage from Hopkinson v. Dumas, 42 N. H. 296, shows how the notion that the equitable estate should control arises. After citing Goodright v. Wells, 2 Doug. 771, the court says:

"It was there very learnedly argued that, before the statute of uses, the use was considered in most respects as the complete ownership of the land; that the estate of the feoffee was subservient to the cestui que use, and that the former could do nothing to defeat the interest of the latter, unless by alienation for a valuable consideration without notice; that the statute of uses completed this subserviency by consolidating the legal estate with the use, or by merging the legal estate in the equitable; and that by analogy to uses thus considered, trust estates had been and should be held to be the solid and substantial ownership of the land, and the trustee the mere instrument of conveyance; that where a party holds by two titles, the law considers him as taking by the best; that the trust-estate, being the best, must control the legal estate. But the court held otherwise, deciding that the legal estate was the better title, and that the equitable title was merged the moment the two became united in the same person; that the legal drew after it the equitable esstate, and that the latter was lost in the former." Accordingly the court in New Hampshire, following this and the cases cited in our former opinion, applied this rule to a case of dower. There are dicta to the contrary of this rule, but we know of no case which has decided that upon the union of the legal and equitable estates, the latter controls the descent. The petition for rehearing is dismissed. Decree accordingly.

WHALAN v. WHIPPLE.

(Supreme Court of Rhode Island. November 19, 1887.)

MASTER AND SERVANT-INJURIES-DEFECTIVE MACHINERY-PLEADING.

A declaration is bad, on general demurrer, which alleges that the plaintiff was employed by the defendant's agents and servants, instead of alleging that he was employed by the defendant, or even that he was employed by the defendant's agents or servants in the defendant's behalf; that the machinery on which the plaintiff was employed, was defective, but does not allege that it was defective in such manner as to be dangerous to the operative, he using ordinary care; and that the defendant, his servants and agents, promised plaintiff that the machinery should be repaired; and that plaintiff continued to operate it, relying on said promise, until the day of 1886, when he was injured, while working said machinery, by reason of its defectiveness; but does not allege that a reasonable time had elapsed after the making of the promise, for the defendant to make the repairs.

On demurrer. Rescript.

Carroll & McParlin, for plaintiff. Geo. J. West, for defendant.

MATTESON, J. This case is submitted to the court for decision upon general demurrer to the declaration, without argument or briefs upon either side; the court being left to find the defects in the declaration, if any, by itself. The declaration contains two counts, both of which are very informally drawn. The first, we think, is clearly insufficient. We also think that the second count must be held to be insufficient. It begins by alleging that the plaintiff was employed by the defendant's agents and servants, instead of alleging that he was employed by the defendant, or even that he was employed by the defendant's agents or servants in the defendant's behalf. We think this is a defect, although, by reason of what is alleged in the remainder of the count, it might not be a fatal defect. The count alleges that the machinery on which the plaintiff was employed was defective, but does not allege that it was defective in such manner as to be dangerous to the operative, he using ordinary care. The count alleges that the defendant, his servants and agents, promised the plaintiff that the machinery should be repaired, and that the plaintiff continued to operate it, relying on said promises, until the day of -, 1886, when he was injured, while working said machinery, by reason of its defectiveness; but does not allege that a reasonable time had elapsed after the making of the promise for the defendant to make the repairs. For anything that the declaration shows, the injury may have occurred within