ment for plaintiff, defendant appeals. Af- Lumber Company was a creditor of the Carfirmed.

These cases clearly bear out that contention. The greater weight of authority, however, is to the contrary.

We think in view of the practically conceded weight of authority, and from the further fact that all of these acts are not repealed in themselves, but repealed and reenacted with amendments, that the better reason is to declare the act valid.

In 36 Cyc. pp. 1055, 1056, it is said: "In many cases it is held that an amendment, to be valid, must not relate to a statute which has been repealed or declared unconstitutional, [2] This brings us to the consideration of and that, where an entire act is void, there is nothing to amend; and thus it is held that an the question of whether or not the surety on amendatory statute which attempts to amend a the bond can be made liable in an action by section which has already been amended and re- the creditor of the contractor for labor and pealed by implication is void. But in the ab- materials. Since the organization of corposence of constitutional prohibition the better rule has been held to be that an amendatory rate bonding companies whose business it is statute will be upheld although it purports to to become surety upon bonds for a profit the amend a statute already amended or which for old doctrine that a surety is a favorite of any reason has been declared invalid, and that the law and that a claim against him is a statute amended and not repealed may be amended and a statute amending a statute strictissimi juris has been very greatly minwhich has already been superseded by an amendatory statute is valid, where it was the intention of the Legislature to amend the amendatory statute, and not the amended statute, and a statute purporting to amend a repealed or void statute is valid where the provisions of the new statute are independent and complete in themselves"

imized. And the business of these corporations is in all essentials practically that of an insurer, and the liability upon their bonds has been very greatly extended beyond that to which sureties were formerly bound. Smith v. Turner, 101 Md. 584, 61 Atl. 334; Ætna Indem. Co. v. Waters, 110 Md. 673, 73

-and cited cases from a great number of Atl. 712; So. Md. Bank v. Nat. Surety Co., states, and also the federal courts.

Sutherland on Statutory Construction, § 233, says:

126 Md. 290, 94 Atl. 916.

tended, but admitted, that the creditor had

[3] The last-cited case was one in which the same statute we are here considering and "There is a conflict of authority as to wheth- a similar bond were involved, although the er a section which has been repealed can be question raised had no similarity to those amended. The question usually arises where a section of an act is amended to read as fol- raised here. The suit was in the name of lows,' and is then again amended in the same the state for the use of an alleged creditor manner and by the same description, ignoring of a contractor, and it was not therein conthe first amendment. Most of the older and some of the more recent cases hold that such an amendatory act or the amendment of a repealed act is a nullity. * A repeal by implication is said to stand upon the same footing in this respect as a direct or express repeal. 'While there is some conflict of opinion on the subject,' says the United States Court of Appeals, the decided weight of authority, and the better opinion, is that an amendatory statute is not invalid, though it purports to amend a statute which had previously been amended or for any reason held invalid.' This view we believe is sustained by the decisions. **

"A New York act of 1883 amended section 16 of an act of 1856 relating to schools 'so as to read as follows.' In 1864 the Legislature passed an act to revise and consolidate the laws relating to public instruction which repealed all inconsistent laws. It was claimed that the act of 1864 repealed the act of 1856 and that the amendment was void. The court was of a different opinion as to the repeal, but held that, even if the act of 1856 was repealed, as claimed, the amendatory act of 1883 was nevertheless valid, and gave their reasons as follows: "The enactment of this law is put in the form of an amendment of a law which was standing upon the statute books, and whether that earlier law, by force of subsequent legislation, had become inoperative, is wholly immaterial. The only question is: Has the Legislature, in the enactment complained of, expressed its intention intelligibly, and provided fully upon the subject? If it has, then its act is valid and must be upheld. The act of 1883 contains all that is provided for in the particular section of the act of 1856, and gives full power to the boards of supervisors with respect to the formation of school commissioners' districts. A law thus explicit and complete may not be disregarded or invalidated because of a possible mistake of the Legislature with respect to the existence of the statute in amendment of which the act is pass

a right of action, and this court therefore was not called upon to consider that question.

Chapter 721 of the Acts of 1910 was the first act in which mention was made that the obligors should bind themselves to the payment of all just debts for labor and material incurred by the bidder in the construction and improvement of the road contracted for, and it is clear to us that the manifest object of the act, in addition to assuring the state that the road would be built according to the plans and specifications, was to protect all those who furnished labor and materials in the construction of the road. There, no doubt, was an intention of remedying a condition that had existed in certain sections of the state, where contractors had failed to comply with their contracts, and where persons who had provided and supplied work and materials had lost heavily by the insolvency of certain contractors. This was recognized by this court in Southern Md. Bank v. Nat. Surety Co., supra, where it was said by Judge Stockbridge, in delivering the opinion of this court:

tion of the bond covered two entirely distinct "It will have been observed that the condiand severable matters-the one to save harmless the state from the consequences of certain acts on the part of the contractor; the other to insure the prompt payment of all just debts of the contractor for labor and materials in the construction and improvement of the road contracted for."

do not expressly state that the laborers and materialmen should have a right of action, or how and where their suits should be brought, deprive creditors such as this appellee from his right of action? In a note to Knight v. Castle, 27 L. R. A. (N. S.) 573, the right of the, materialmen and laborers to maintain an action on a contractor's bond is discussed thoroughly and at length, with cases cited to support the text. It is there said:

"An ancient general principle denies an action for the breach of a contract to one who neither made it nor has succeeded to the interest of the one who did make it, notwithstanding he had sustained a damage by the breach, or would have been substantially benefited by a performance of such contract. In later times that general principle became subject to an exception now widely recognized and well established, viz., that a third person for whose benefit others make a contract may in certain circumstances recover upon it against the party to it who defaults in performing the beneficial covenant. The courts have had occasion to act so frequently upon this exception that it has acquired the force of an independent rule of law. Cases arising upon beneficial contracts which have required the courts to consider and apply this exception-generated rule have been very numerous and exceedingly varied in character, and the judicial determinations made in them have been discordant and conflicting to a high degree. The cases in which a subcontractor, laborer, or materialman has sought a recovery upon the contractor's bond against his sureties, upon the ground that the obligation was entered into for his benefit, constitute a large and important group in the multitude. In all of them the rule has been referred to, and in some of them it has been applied. In none has it been denied that the rule applies to this class of cases, but only that particular cases do not fall within its operation."

supra, we said that we agreed with the reasoning and conclusion of an opinion delivered by Judge Briscoe of this court in circuit, in which he held a surety company upon a bond substantially similar to the one in this case liable for an indebtedness of a contractor.

As to the right of the creditor to bring his action in the name of the state, we do not think it necessary to discuss further than to say that Seigman v. Hoffacker, 57 Md. 321, is ample authority for so doing.

We will therefore affirm the judgment.
Judgment affirmed, with costs to the appel-

STATE v. RIDDELL. (No. 4943.)

CRIMINAL LAW
-HEARING.

1916.)

961-NEW TRIAL-MOTION

And it is clear from a study of the cases there cited, and from others, that the weight (Supreme Court of Rhode Island. March 29, of authority that, since the contractor's bond is given not only for the protection of the state under the contract, but equally for the protection of the laborers and the materialmen, that such have a right of action irrespective of whether the express language of the bond or act give it to them.

In our opinion, the Legislature could have had no other reason in adding to the act of 1908 by the act of 1910 the requirement of the bond for labor and material, unless they had intended thereby to create a right of action for these. For under the act of 1908, so far as the state was concerned, it was already protected by the requirement for a bond for the faithful performance of the contract between it and the contractor, and another reason that occurs to us that could account for this intention on the part of the Legislature is that they recognized that, since this was a state work, the labor and materialmen could acquire no protection against insolvent contractors by the lien laws of this state. Upon this question we have already practically announced the stand of this court. In Southern Md. Bank v. Nat. Surety Co.,

Where affidavits attached to a petition for leave to file a motion for new trial contain matsatisfactorily done in the trial court, the leave ters requiring investigation, which can be more will be granted without reference to the sufficiency of the affidavits.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2415-2417; Dec. Dig. 961.1

Hugh Riddell was convicted of attempted arson with intent to defraud the insurers, and he petitions for leave to file a motion for new trial in the superior court, after affirmance, and denial of reargument. granted.

See, also, 38 R. I., 96 Atl. 531.

Petition

Abbott Phillips, Asst. Atty. Gen., for the State. A. B. Crafts and Edward W. Bradford, both of Providence, for defendant.

PER CURIAM. This is a petition brought by the defendant under section 3, chapter 297, of the General Laws of 1909, praying for leave to file and prosecute a motion for a new

trial in the superior court on the ground of newly discovered evidence; such evidence being set forth in certain affidavits filed with said petition.

BAKER, J. This is an appeal by Hulda Sherman as administratrix upon the estate of Emma F. Sherman, deceased, from the decree of the probate court of the town of On April 3, 1914, the defendant was con- Cumberland entered April 2, 1914, whereby victed in the superior court of attempting said court ordered and decreed that the to burn the goods of one Joseph Goldstein statement filed by Samuel J. Howes, adminwith intent to defraud certain insurance com-istrator d. b. n. c. t. a. on the estate of Amos panies. In the course of the trial in the Sherman, in the office of the clerk of said superior court the defendant took 65 ex- probate court setting out the names of the ceptions, which were later embodied in his legatees, the amounts to be paid, and the bill of exceptions brought to this court. At property to be turned over to them respecthe hearing 31 of these exceptions were aban- tively or to be held by himself as trustee, doned. The remainder were duly considered be approved as filed. This action of the and overruled. For the opinion of this court court was had under sections 13 and 14 of thereon see 38 R. I. —, 96 Atl. 531. Subse- chapter 318 of the General Laws of 1909. quently a motion for reargument was denied and dismissed. The affidavits filed in support of the petition for leave to file a motion for a new trial in the superior court set forth various matters which it may be necessary and proper to inquire into and consider. We think that such matters could be more satisfactorily investigated by the trial judge who tried the case and is familiar with it and who can, if he sees fit, require the affiants to be produced before him for further examination under the provisions of section 38, chapter 292, of the General Laws. In this view of the matter and without expressing any opinion as to the sufficiency of the affidavits filed, we will allow the defendant to file and prosecute his motion for a new trial in the superi

WILLS 7 INTEREST SUBJECT TO TESTA-
MENTARY DISPOSITION.
Where life insurance is made payable to
one as trustee to pay $250 annually to insured's
wife and child and the survivor, and, on the
death of both, any balance to his estate, insured
has a contingent equitable reversionary inter-
est which he may pass by will.

[Ed. Note. For other cases, see Wills, Cent. Dig. 11; Dec. Dig.

7.]

The important part of the statement was as follows:

Names of legatees in will Amount due and proper

of Amos Sherman,

Roger Sherman
Emma F. Sherman

ty to be turned over to them. none none

In Sherman v. Howes, 38 R. I. 176, 94 Atl. 490, decided June 24, 1915, which was a case between the same parties, this court held that the money in said administrator's hands as portion of the balance of the proceeds of the policy of life insurance numbered 316183 paid to him by the New York Life Insurance Company on March 29, 1911, was part of the assets of the estate of Amos Sherman. As already shown, the decree of the probate court appealed from in the present case approved the statement that no part of these assets belonged to the administratrix on the estate of Emma F. Sherman. Hence her appeal, which was heard before Mr. Justice Barrows, sitting without a jury, on August 20, 1915, who at the close of the hearing caused to be entered a decree sustaining her appeal, reversing the decree of the probate court and amending said statement so as to read as follows:

The decree further recites that said lastmentioned sum includes interest at the rate of 4 per cent. per annum upon the balance Exceptions from Superior Court, Provi- shown by the final account of said adminisdence and Bristol Counties; Chester W. Bar-trator from the date of the decree allowing rows, Judge.

the same (May 2, 1912), and orders said administrator to pay forthwith said sum of $2,885.34 to said Hulda Sherman as administratrix as aforesaid. To this decision Mr. Howes excepted, and also to certain rulings of the court excluding testimony, and he has duly brought his bill of exceptions to this court. It contains five exceptions.

We think the four exceptions taken to the exclusion of testimony are without merit, and they are overruled. The remaining exception is to the finding that the money now

held by the administrator belongs to Hulda | legacies to his son, including the proceeds of Sherman as administratrix on the estate of the two other insurance policies, he provided Emma F. Sherman. As, in substance, this as follows: court in Sherman v. Howes, supra, held said money to be part of the assets of the estate of Amos Sherman for all legal purposes, the only question now presented is whether or not said money was disposed of by the will of Amos Sherman. In other words, as to such balance of proceeds did he die testate or intestate?

"Third. I give and bequeath to my wife Emma F. Sherman all the rest and residue of estate personal real or mixed and wherever situate including as well any that I may acquire subsequent to the date of this will as that of which I am now possessed to her her heirs and assigns forever."

She was appointed executrix of the will. Amos Sherman died September 7, 1902, leaving his wife and son surviving him. Upon his death his wife and son surrendered said policy to said insurance company for cancellation, and the proceeds of the policy were held by it as trustee. Under date of October 2, 1902, the company issued a certificate of trust in accordance with the provisions of Memorandum B, and thereafter in accordance therewith made nine annual payments of $250 each. The will of Amos Sherman was duly probated and his widow quali fied as executrix. She died intestate January 17, 1905, and Roger W. Sherman died January 5, 1911, testate, leaving his widow, said Hulda Sherman, as his sole devisee and legatee. Under the facts and conditions as stated, did Amos Sherman have such interest in the proceeds of the policy as that at his death it passed under his will to his widow? By the assignment to him from his wife and son the proceeds of the policy became part of his estate in the event of his death before May 2, 1904; if he survived that date, such amount as would then be due on the policy was payable to him by the original terms of the policy. With the consent of the company, he, after the assignment, effected a new designation of beneficiaries, by making the proceeds payable to the insurance company as trustee charged with the payment of $250 annually therefrom to his wife and child and the survivor of them and upon the death of both with the payment of the balance then remaining, if any, to his estate. In other words, he reserved an equitable reversionary interest in the proceeds as part of his estate, subject to the possibility of its being exhausted, if his wife or child lived long enough. While contingent in character, it was, however, an interest which was capable of passing under his will, and in our opinion did so pass, on his death to his widow; that is, the equitable right passed, but not the present possession and enjoyment. See Bailey v. Hoppin, 12 R. I. 560, 567, 569; Loring v. Arnold, 15 R. I. 428, 8 Atl. 335.

Although the facts of the case are quite fully set out in Sherman v. Howes, supra, a brief statement of them in the present case will be convenient. Insurance policy No. 316183 issued on the life of Amos Sherman for the term of 15 years commencing May 2, 1889, was made payable upon his death be fore May 2, 1904, share and share alike, to Emma F. Sherman, his wife, and Roger W. Sherman, his son, or their executors, administrators, or assigns. If the insured lived through the period of 15 years, payment in amount as specified in the policy was to be made to him or his assigns. Under date of January 6, 1898, Emma F. Sherman and Roger W. Sherman assigned to Amos Sherman said policy "and all dividend, benefit and advantage to be had or derived therefrom." By memorandum A, dated January 11, 1898, Amos Sherman amended his application of April 19, 1889, for this policy of insurance, as well as his application for one other policy, by making in the event of his death "during the lifetime of either Emma F. Sherman wife of Roger W. Sherman son the proceeds of the insurance" then applied for payable to the New York Life Insurance Company as trustee, with instructions to invest the same and to pay therefrom annually a certain sum to his said wife and son and to the survivor of them, with the further instruction that the balance of said proceeds remaining after the death of both beneficiaries should be paid to the executors, administrators, or assigns of himself, the insured. He reserved the right to revoke the appointment of trustee, but never exercised it. Memorandum B, signed by the president and secretary of said life insurance company under date of February 10, 1898, states that "it is agreed that in case of the death of Amos Sherman during the lifetime" of his wife or son the proceeds of said policy "are to be paid to the New York Life Insurance Company as trustee" upon the trusts as stated in memorandum A, except that there was a change in the number of annual installments to be paid over. Whether each install- Accordingly, Hulda Sherman, as adminment to be paid under this policy by memo-istratrix on the estate of Emma F. Sherman, randum B is the same as provided in memo- is entitled to have the balance of said prorandum A is not entirely clear as the former ceeds now in the hands of Samuel J. Howes, referred to two policies and gave a lump administrator as aforesaid, amounting on sum for both. August 20, 1915, with interest, to $2,885.34, paid over to her by him. There was therefore no error in the decision of the superior court, as there is no dispute as to the correct

On August 22, 1899, Amos Sherman executed his last will and testament, by which after making certain specific devises and