nineteenth item implies that the annuities, previously given, are to be paid out of the income after the period of administration. If we pass to the twenty-first item it seems to us that both of these points are clear. The twentyfirst item begins: "After the payments of the foregoing legacies, bequests, and annuities, and the payment annually to each of my said sons, Ellery H. and George F., Jr., which I direct to be paid to them until the legacies hereinafter provided for are satisfied, I direct my trustees to divide the dividends accruing upon my said stock in the Rumford Chemical Works," etc., proceeding to prescribe accumulations for the coileges. In other words, to turn the phrases about in order to bring their meaning out the more clearly, the item directs the trustees to divide the dividend between the funds for the colleges after paying the legacies, bequests, and annuities given in prior items, and the annual sums for the sons, the implication being unmistakable that the payments are to come out of the dividends so far as necessary before division. The answer of the counsel for the daughters is that no such payments ever can be necessary, because, in the regular course of administration, the legacies, bequests, and annuities will be paid by the executors, so many shares of the Rumford Chemical Works stock as are necessary to make good the deficiency of the other assets being sold for that purpose, and only the residue will go to the trustees. The trouble with the answer is that it takes no account of the unmethodical structure of the will, and, instead of making the administration subservient to the will, subordinates the will to a preconceived course of administration. It is patent that the testator did contemplate an exigency in which the dividends should be used to pay legacies and annuities and did explicitly provide for it in the twenty-first item. What was that exigency? Evidently an insufficiency of assets, exclusive of chattels specifically bequeathed, and of the Rumford Chemical Works stock. If it be asked why exclusive of said stock, the answer is obvious, namely, because if the stock was intended to be resorted to at all, it must have been intended to be resorted to to the full extent of the need, and the provisions for making any use of the dividends would be nonsensical. Accordingly, since the exigency has occurred, why should it not be met as the testator provided for having it met, and his will thus be carried out? It seems to us that it should be so met, and consequently that the legacies and annuities, as well as the annual sums for the sons, are payable out of the dividend, and that they should be so paid, the annuities and annual sums, of course, being paid as they fall due. We may add that the twenty-second item, also, will be found, if examined, to lead to the same conclusion. The counsel for the daughters urges against this conclusion that it is inconsistent with item 17, which directs the immediate payment of the legacies. Item 18, however, allows the executors two years for payment thereunder; and probably the principal effect intended by item 17 was to entitle the legatees to interest from the death, instead of a year after the death, of the testator in case of delay. He also urges that the testator could not have intended to postpone his children's enjoyment of the income by such payment. The answer to this is that under the will, simply, the daughters are not affected by the postponement, being entitled to the income of 50 shares each from the testator's death, and the sons are provided for by the annual sums. Are the dividends likewise applicable to the payments of the debts in so far as the other assets not specifically bequeathed, except the 1,248 shares, fall short of paying them? The will does not expressly provide for the payment of the debts as it does of the legacies, out of the dividends, and it therefore seems to us that this is a more difficult question than that which we have just answered. We have, however, after a careful consideration, come to the conclusion that the dividends are to be used, in exoneration of the shares, as well for the payment of debts and of legacies and annuities. We will state the reasons which have led us to this conclusion. We think it is apparent that the testator expected that the Rumford Chemical Works

stock would go intact to the trustees. Item 19, as we have seen, directs the trustees to sell all other corporate stock except that, which of course imparts such an expectation. Item 21 directs the manner in which the dividends "accruing upon my said stock in the Rumford Chemical Works" shall be temporarily disposed of. The language is "my said stock," not "my remaining stock," and again imparts an expectation that the stock would go and continue intact. The same expectation reappears in the twenty-second item, which directs the the disposition of the income, after the payment of the legacies to the colleges, during the lives of the sons, and the division of the stock itself after the death of the survivor of them, the stock there being called "said stock," meaning the stock previously mentioned. It would evidently disappoint the expectation and purpose of the testator if the stock were broken into for the payment of his debts. The question is whether the expression of this expectation and purpose is determinate enough to be accepted as the will of the testator, for, if it is, there appears to be nothing to prevent its controlling the usual course of administration. It is the duty of a court, in construing a will, to bear in mind the circumstances under which it was made so as to look at it, as far as possible, from the testator's point of view. The observance of this duty is particularly important in this case, since the circumstances, as they concern the stock in the Rumford Chemical Works, were very peculiar. The case stated shows that, at the time the testator made the will, his stock in the Rumford Chemical Works was, and for more than two years had been, in the hands of trustees under a deed which stipulated an extension of credit to the testator on a prior indebtedness to the Rumford Chemical Works, and further loans to him from said works, in consideration that said stock should be held as security, and that said works, which was a party to the deed, should be entitled to retain the dividends on the stock, as they accrued, by way of payment. The stock was also complicated and entangled in the trusts of another trust deed of the same date, so that, at the death of the testator, it would have been hardly practicable for the executors, if they had then been qualified, to sell the stock, unless the trustees would have consented to join in the sale, for the purpose of paying the indebtedness to the works. The case likewise shows that within a little more than three months after the execution of the will dividends had accrued to an amount sufficient to pay off the entire residue of indebtedness for which the stock was held, and to leave a large balance to be paid over to the executors. It must be assumed that the testator knew, when he made his will, how much his indebtedness was, and how profitable a business the works were doing, and, consequently, how soon the indebtedness was likely to be paid out of the accruing dividends. Can it be supposed that, with this knowledge, he intended that the process of payment, which he had found so successful during his life, should cease at his death? The will shows that he relied almost exclusively on his stock to yield the funds for his large and monumental benefactions to Brown University and Dartmouth College, and to make provision for his children and their posterity. Can it be supposed that he intended to expose this productive stock to the hazard of a sale, in circumstances in which some sacrifice, and probably a heavy sacrifice, must ensue, for the purpose of paying a debt which the stock was itself paying rapidly, and without risk, as he had agreed to have it paid? It is strange, if he did so intend, that the will should indicate the contrary. It is not to be supposed that in making the will, which was made only seven days before his death, he did not contemplate the contingency of his dying before his indebtedness to the works was paid. But if his idea was that, whether he lived or died, the indebtedness would disappear under the deed of trust, without the intervention of the executors, and if such was his design, then the suggestion of the eighteenth item that the debts and legacies might be more than paid by the property there directed to be sold, would become intelligible, and the apparent purposes of the will are all satisfied. In this view

the testator did not provide in his will, in express terms, that his debts, after the exhaustion of other assets, should be paid out of the dividends instead of the capital of the stock in the Rumford Chemical Works, because he had already so provided in regard to the bulk of his indebtedness before the will was made, and because he supposed that, in such circumstances, he made his intention not to have the capital so used sufficiently clear, by directing it to be used in a different manner, and in this view, also, the probability is that when he ordered in item 18 the effects there specified to be sold, and the proceeds used to pay debts and legacies, and the excess, if any, to be turned over to the trustees, he had chiefly in mind his personal and family debts, not embraced in the ante-testamentary provision. It seems to us, therefore, that the indications from the circumstances concur completely with the indications of the will, and add such strength to the latter indications that the latter are to be regarded as a determinate part of the will, and, accordingly, that the debts, so far as the other available assets fall short, are properly paid out of the dividends instead of the corpus of the Rumford Chemical stock. The counsel for the daughters contends that this view is inconsistent with the directions of item 1 that the debts shall be paid as soon as practicable. The phrase "as soon as practicable" is rather indefinite; but, however taken, the debts were paid as the testator probably foresaw they would be, a good deal quicker out of the dividends than they would have been by selling the stock. The record shows that the will was finally proved April 28th, only two days before the dividend of April 30th, so that in fact it would have been impossible for the executors to hasten the payment by sale. We wish to add that, in coming to our conclusion, we do not mean to derogate from the authority of the ordinary precedents or of the general rules educed from them, namely, that when a legacy is given which is subject to a charge it is ordinarily entitled to exoneration out of the general assets, and that, when a residue is given, the income to go one way, and the capital another, the legatee of the income takes it from the death, unless there be something in the will to show a contrary intent. Both these rules are recognized in Rhode Island cases. Gould v. Winthrop, 5 R. I. 319; In re Bailey, 13 R. I. 543. We know of no precedent which covers a case having the peculiarities of the case at bar. Nor do we acknowledge any conflict between our decision in this case and the decision of this court in Walcott v. Pitcher, 7 R. I. 555, largely relied on by the counsel for the daughters; for in that case the will was supposed to indicate an intent to have the capital of the residue used, and it does not appear that there was anything to the contrary in the circumstances, whereas, in the case at bar, the will implies an intent to have the capital preserved, and only the dividends used, and the circumstances under which the will was made corroborate the implication. Other questions have been put in the case stated, but the answers to them are mere corollaries to the answers before given, and we leave the parties to draw them.

RANDALL . LAUTENBERGER.

(Supreme Court of Rhode Island. February 18, 1888.) AUCTIONEER-CANNOT ACT FOR BOTH PARTIES.

An auctioneer, while acting for the seller, in his office, cannot also, acting for the buyer, accept his own bid, where the seller does not know that he is also acting for the buyer.

Bill for specific performance filed by William K. Randall against John H. Lautenberger.

Ziba O. Slocum and Clarke H. Johnson, for complainant. Charles H. Page and Franklin P. Owen, for respondent.

STINESS, J. The defendant offered his estate in the city of Providence for sale by auction. The broker whom he employed for this purpose engaged an

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auctioneer of Providence, named Goff, under whose authority and office the sale was to be made, the broker crying the bids. The complainant then authorized Goff to buy the property for him, if it did not go above $3,400. Goff accepted this agency for the complainant, making one or more bids in his behalf, and the property was struck off to the complainant for the sum of $3,325. The complainant now brings his bill for specific performance. The defendant claims that he made a limitation of the price for which the estate might be sold, viz., $5,000, with the broker, and that he did not understand, although he was present at the sale, that the place was to be sold unless it brought that price; also, that he supposed that the broker was the auctioneer, and that he knew nothing of the employment of Goff. The first question, however, that meets us is whether the sale was valid; inasmuch as Goff, being the auctioneer, acted as agent for the purchaser in bidding. An auctioneer is the agent of the seller in making the sale. When, however, the property is struck off, he becomes also the agent of the purchaser, to the extent of binding both parties by his memorandum of sale. Up to this point his -duty is to the vendor. Batem. Auct. 20, 126, note x. It is a well-settled rule that a trustee or agent cannot buy the property of his principal, because of the inconsistent relations that he would thus hold as purchaser and seller. Story, Ag. § 211; Batem. Auct. 125. The supreme court of the United States, in Michoud v. Girod, 4 How. 503, 554, quoted with approval the following statement from 2 Sugd. Vend. (14th Amer. Ed.) 687: "It may be laid down as a general proposition that trustees, * agents, commissioners of bankrupts, assignees of bankrupts or insolvents, * or their partners in business, solicitors to the commission, auctioneers, creditors who have been consulted as to the mode of sale, counsel, or any persons who, by being employed or concerned in the affairs of another, have acquired a knowledge of his property, are incapable of purchasing such property themselves, except under the restrictions which will shortly be mentioned; for, if persons having a confidential character were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their information, and not to exercise it for the benefit of the persons relying on their integrity. The characters are inconsistent." Sugden also states (volume 2, p. 690, § 11:) "Where a person cannot purchase the estate himself he cannot buy it as agent for another." These rules were most carefully examined on principle and authority by Chancellor KENT in Davoue v. Fanning, 2 Johns. Ch. 252. In this case a sale by trustee at public auction, bona fide, and for a fair price, to a third person as agent for the trustee's wife, was set aside, although the wife was a cestui que trust, and had an interest in the estate sold. Among the cases cited was Ex parte Bennett, 10 Ves. 381, where a solicitor to a commission in bankruptcy made bids for a third party. The sale was set aside, upon the ground that if a trustee or agent cannot bid for himself, upon the same principle he cannot bid for another. Lord ELDON held that, although the temptation in the latter case is weaker, "that distinction is too thin to form a safe rule of justice." In Twining v. Morrice, 2 Brown, Ch. 326, specific performance was denied where the seller's agent at an auction sale bid for the plaintiff. In Veazie v. Williams, 8 How. 134-152, Judge WOODBURY expresses the opinion that to allow an auctioneer to bid for another would tend to weaken his fidelity in the execution of his duties to the owner. In Brock v. Rice, 27 Grat. 812, the following rule is laid down: “No person employed or concerned in selling at a judicial sale is permitted to become a purchaser, or even to act as agent of a purchaser. It is impossible with good faith to combine the inconsistent capacities of seller and buyer, crier and bidder, in one and the same transaction. If the commissioner or auctioneer faithfully discharge his duties, he will, of course, honestly obtain the best price he can for the property. On the other hand, if he undertakes to become the purchaser for himself, or for another, his interest and his duty alike

prompt him to obtain the property upon the most advantageous terms. There is an irreconcilable conflict between the two positions. And so the courts have always held." In respect to the duty of the auctioneer there is no distinction between a judicial and an ordinary auction sale. In this state an auctioneer is an officer elected especially for the purpose of securing fair dealing at such sales. The only case that has come to our attention which holds that an auctioneer may bid for another is Scott v. Mann, 36 Tex. 157. The report of this case is not clear upon this point, and it is quite possible that the auctioneer took only one bid from the purchaser, and made that bid at the sale; which would be very different from bidding gradatim in his behalf. Taking the case, however, as it stands, we think it is overborne both by reason and authority. The reason for the rule of the cases we have cited is well illustrated in the one before us. The complainant employed the auctioneer to act as his agent at the sale; telling him if the estate did not go over $3,400, to buy it for him. Here, then, the auctioneer knew that a person was ready and willing to give that sum. He did not make a bid for that amount, but, identifying himself with the interest of the purchaser, and against the seller for whom he was conducting the sale, he bid below that limit, and bought the estate for the complainant at the sum of $3,325. His duty was to the seller; but, having undertaken to represent the purchaser, he yielded to an adverse interest, and struck off the property, through his crier, at a less price than he knew the purchaser was willing to give, he having the control of the purchaser's bid himself. He would not have done differently had he been bidding on his own account. It makes no difference that another was acting as crier, since Goff was the legal and responsible auctioneer for the sale. Confessedly, he did not perform his duty to the seller, and it was not therefore a fair sale. No doubt many auction sales have been conducted in this same way. Where due notice has been given, and the sale is otherwise unobjectionable, we do not mean to decide whether or not a party might be stopped from objecting to it on this account. But where the vendor, as in this case, does not know that his agent is acting for another, there seems to be no room for doubt that, upon learning the fact, he may disavow the sale when it is sought to be enforced. But it may be urged that as no one increased the bid of the purchaser no harm was done to the defendant. This is not a sufficient answer. The conduct of an auction sale is so completely in the hands of an auctioneer that it is an easy thing for him to strike off property according to his interest, even though, by further urging, other bids might be made. It is not enough to say to the seller, "You cannot prove that I could get more." There must be no room for temptation and the hazard of abuse. Upon this ground the sales for a fair price have been set aside in some of the foregoing cases. See, also, Sugd. Vend. (14th Amer. Ed.) 689, § 5, and note s. burden is on the complainant who seeks to compel a performance to show that he fairly bought the property at a fair sale. By the unlawful conduct of the agent whom he selected, whose duty, he should have known, was to the defendant, he did not fairly purchase at a fair sale, and consequently he is not entitled to the relief he asks. It is unnecessary to pass upon the other questions as to the limitation of the price, the ignorance of the defendant as to what took place, etc. The bill must be dismissed. Bill dismissed with costs.

The

WILSON v. WILSON.

(Supreme Court of Rhode Island. February 4, 1888.)

1. DIVORCE-EXTREME CRUELTY-EVIDENCE.

Upon petition for divorce, vulgar, profane, abusive language, often used to or concerning the wife, in her presence, by the husband, when she was in very feeble health; blows and other physical injuries inflicted upon her; the communi