is a charge upon lands. The phraseology of section 1, that "all property which shall pass by will or by the intestate laws of this state • * shall be subject to a tax," does not import an impost upon the property, for our courts have construed the act as not a tax on property, but an exaction from persons taking, for the privilege of taking, by testament or statute, and as such sustained the constitutionality of the tax. Neilson v. Russell, 76 N. J. Law, 27, 69 Atl. 476; Eastwood v. Russell, 81 N. J. Law, 672, 81 Atl. 108; Carr v. Edwards, 84 N. J. Law, 667, 87 Atl. 132.

To subject property to a tax does not imply a lien. The language of the General Tax Act is that "all property, real and personal, within the jurisdiction of this state, • shall be subject to annual taxation at its true value under this act" (C. S. 5076, 82), but the tax is impressed as a lien upon lands by section 49, which makes "all unpaid taxes on real property on and after the twentieth day of December next after the assessment, a first lien upon land on which they are assessed" (C. S. 5129). While section 2 of the act subjects personal property as well to the tax, a lien does not attach to goods. Broeck v. Jersey City, 44 N. J. Law, 156.

[2] The only other indication of a lien is section 22, providing for the recording in the clerk's office of the county in which the property is situate, of receipts by the state treasurer, "which receipt shall designate on what real property, if any, of which any decedent may have died seized, said tax has been paid, and by whom paid, and whether or not it is in full of said tax." This would by implication, at least, presuppose a lien, to be discharged of record; but I think the provision not inconsistent with the construction I put upon the act. The record of the receipt may operate in discharge of liens given by sections 2 and 6, or they may be acquittances barring sales of land under section 7. At all events we cannot predicate a lien upon the precarious language of this section (22). The existence of a tax lien must not be left to doubtful construction. City of Camden v. Allen, 26 N. J. Law, 398. The legislative scheme, as it appears to me, contemplated the tax to be against the individual legatee, devisee, or heir, to be collected by the executor or administrator, from legatees, out of moneys passing through his hands, and from devisees and heirs, by

selling the lands, as he would sell land for the payment of decedent's debts (section 7), and by an adjudication of the assessment by the ordinary or orphans' court, and docketing the decree in the county clerk's office as a judgment (section 16), and executing it accordingly.

[3] If this analysis is correct, it seems plain that the Legislature did not design the tax to be a lien by virtue of the statute, and that the statute simply created a tax out of which a lien could be fashioned by following up the procedure provided for that purpose. [4] It is too late now for the executor to make sale under the seventh section of the act. That must be done within the time limits for sales of land for the payment of decedent's debts. To have binding force the order for such a sale must be taken out within a year after decedent's death, or, if afterwards, before alienation by the devisee. Orphans' Court Act, §§ 81 and 94 (C. S. §§ 3838, 3845); Warwick v. Hunt, 11 N. J. Law, 1; Skillman v. Van Pelt, 1 N. J. Eq. 511; Bockover v. Ayres, 22 N. J. Eq. 13. There is, therefore, no incumbrance on the title on that score; and as there was no assessment reduced to judgment when the complainant acquired title in 1906, there is no lien in that respect.

In

The view I entertain, that no lien was created by the statute, or intended, is influenced by the specific creation of liens in the two instances to which attention has been called. Sections 2 and 6. The reasons for this special treatment evidently were: the first, because the payment of the tax on the remainder may be indefinitely deferred, upon the giving of a bond, thereby increasing the danger of loss to the state; and, in the second, legacies charged upon lands do not pass through the hands of the executor, that they are of, yet apart from, the devise and payable by the devisee, but from whom the executor could not collect by a sale of the lands under section 7, without the lien.

Another consideration is that, upon reframing the law in 1909, the Legislature changed its policy and expressly provided

that

"All taxes levied and assessed under this act on the transfer of any real property shall be and remain a lien on said property until paid." P. L. 1909, p. 325, § 5.

A decree for complainant will be advised.

(120 Me. 183)

GRAY v. RICHARDS. (Supreme Judicial Court of Maine.

1921.)

April 7,

Master and servant 72-Bonus of year's wages to servant of decedent should be computed on wage scale at time of death.

Where decedent desired to obtain the services of plaintiff in his declining years, and as an inducement for her to stay until his death agreed to pay her one year's salary and traveling expenses to New York, at his death or when she might leave, the agreement, which was oral, being acknowledged by the decedent in writing, the year's salary should be computed on the wages received by plaintiff at the time of death, and not the wages which she received when she went into service, for it must have been the decedent's intention that the increasing bonus would keep plaintiff in service, and the traveling expenses must be reckoned as of the date when plaintiff left service.

time, or at my death, she is to receive one year's salary and traveling expenses to New York."

The controversy arises over the rate per be computed. Shall it be at $7 per week, the week at which this one year's salary is to wage at which the plaintiff began her services as claimed by the defendant, or at $25 per week, the wage at the time the service ceased, as claimed by the plaintiff.

From the agreed statement of facts it ap pears that the plaintiff, then a resident of New York, entered the employment of Gen. Wood in the year of 1911, and her first service was performed at Farmington, in this state, where he resided. The price then was $7 per week, as his health became more infirm and his bodily ailments increased, her compensation was correspondingly increased. In August, 1915, it was fixed at $18 per week. Later, when the testator moved to Portland and took rooms at the Congress Square Hotel, the agreed price was raised

Action of assumpsit by Margaret V. Gray against Elmer E. Richards, as executor. On report. Judgment for plaintiff.

informing Mr. Richards, whom the testator had selected as his executor, of the contract

CORNISH, C. J. On report. Action of assumpsit against the executor of the estate of Henry Clay Wood to recover for services rendered as a nurse and for cash disburse ments made. The account annexed contains five items. The first, a charge for services from April 25, 1918, to September 7, 1918, at $25 per week, amounting to $482.14, is admitted.

The second, a charge for laundry work, and the third, for cash paid for drugs, the two aggregating $115, are also admitted.

The fourth, a charge for extra nursing $150, is not pressed. The sole contention is over the fifth item, viz.:

"One year's additional compensation from the date of Gen. Wood's death at $25 per week as per special contract, $1,300."

The special contract referred to is acknowledged in a letter written by Gen. Wood to Mr. Richards, his attorney, and subsequently his executor, under date of August 31, 1915, which is as follows:

"Before Miss Margaret V. Gray left New York City for Farmington, to take care of me, I made an agreement with her whereby, in the event of Miss Gray leaving my services at any

borne in mind that this letter did not create the contract, but was simply a written recognition or acknowledgment of the contract, which was itself oral and had been made four years before.

The validity of the contract is not challenged. The only question is its terms, and that must be determined from the language of the letter, viewed in the light of the circumstances and probabilities of the case.

The testator, at the time the contract was made, wished to have Miss Gray leave New York and come to Farmington to care for him during his declining years, and, if possible, stay with him to the end. In order to accomplish this he held out, before she left New York, this inducement of an extra year's salary and traveling expenses back to New York in the event of her leaving him at any The defendant contime or at his death. tends that this meant one year's salary at $7 per week, the amount she received at the time of entering his service. We cannot so construe it. If the defendant's contention is correct, then the bonus she was to receive was a fixed and definite sum, 52 weeks at $7 per week, or $364, it mattered not when she might leave or how long she might remain. Under this construction there would be no inducement for the plaintiff to remain in service, so far as this bonus was concerned. She would receive the same amount if she

left at the end of seven months, or even seven weeks, as if she remained seven years. It was to be a fixed sum, $364, in any event, and nothing more. This would thwart the very purpose the testator had in mind.

Moreover, if the amount of the bonus was fixed, then that fact must have been known to both parties, and when Gen. Wood wrote the letter of August 31, 1915, he would naturally have inserted that agreed sum. Instead of stating, "She is to receive $364," he said, "She is to receive one year's salary," a varying and indefinite amount.

In our opinion the plaintiff's construction is the more reasonable, and more in harmony with the testator's purpose that the year's wages promised as an inducement should be reckoned as of the time when service should cease, whether by voluntary departure or by the testator's death. The words are:

"In the event of Miss Gray leaving my service at any time, or at my death, she is to receive one year's salary and traveling expenses to New York."

The fair interpretation would seem to be that, when that event happens, then the salary shall be computed. It is true that the language may be regarded as ambiguous, but the words are those of the testator, and, if ambiguous, they are to be construed more strongly against him.

This view furthers the testator's desire to

retain the plaintiff in his service during the remainder of his life. The longer the service, naturally the greater the wages, and therefore the greater the bonus, if that was to increase as the salary increased. In this way the testator was guarding against her leaving him in his last days by increasing the inducement for her to remain. His purpose was fulfilled, and she remained with him to the end.

Admittedly the traveling expenses back to New York are to be reckoned, not as of 1911, but as of 1918. In like manner we think the salary is to be computed as of the time when the event happened which rendered computation necessary, namely, the death of the testator. The fifth item should be allowed as charged.

Judgment for plaintiff for $1,897.14, with interest from February 16, 1920, the date of filing claim in registry of probate.

(120 Me. 549)

STEVENS v. CHASE.

PER CURIAM. Soon after haying time in 1919, the defendant went to the plaintiff's Fairfield farm seeking to buy hay. Declining to meet plaintiff's asking price, he went away. A later conversation, on meeting in the highway, did not result in making a trade. In October, at the plaintiff's place, they entered into an oral contract concerning the subject, defendant paying as earnest the sum of $150. Now they are in disagreement regarding the terms of the agreement which they made. Plaintiff says it was agreed that he was to sell and the defendant to buy all the hay in a certain barn, excepting that contained in a specified mow, at the price of $16 a ton, plus the benefit of advance in the market price, if any there should be, to the time of delivery during the winter on board railroad cars at Hoxie's siding; he to make delivery there after defendant had pressed the hay. Defendant's version is that he promised to pay $16 a ton, and no more, for all the hay in the barn; he to press it, and the plaintiff thereafter to make delivery on the cars. Plaintiff further says that, in his absence from home one day in January, some of the excepted

1921.)

1. Sales 359(1)-Evidence held to warrant finding for seller under provision for increase in market price.

In an action on a contract for the sale of hay, brought by the seller, who contended that

The rest of that pressed, amounting to slightly more than 30 tons, was delivered in February; $450 in all having been previously paid on account of the purchase price.

Plaintiff sued on the contract as he claims it was made. Following a keenly contested

[1] The verdict is not palpably wrong. It may be a bit close on the facts in spots, but it is far from being obviously erroneous. Standing out in significant prominence in the testimony is the answer of the defendant as a witness that, when the plaintiff, just before delivering the hay, inquired over the telephone as to whether he stood ready to pay the additional amount of the market advance, he instantly replied, "I ain't said I ain't going to."

Defendant has exceptions to refusal of the judge to charge in substance: (1) That if the jury found that plaintiff sold defendant all the hay that was pressed, then and in such event plaintiff would not be entitled to recover in the absence of proof of full performance on his part, or some sufficient reason for the want of it; (2) that a finding of the contract to be as defendant claimed would preclude recovery in the instant suit.

[2, 3] The judge already had given equiv. alent instructions. Even had he not, the requested instructions were predicated upon findings of fact, against the existence of both of which it is plain, from the verdict, that the jury must have found. No injustice has resulted from the refusal to rule. Motion for new trial overruled. Exceptions overruled.

(120 Me. 114)

DUPONT v. PELLETIER et al. HAMEL et al. v. SAME. (Supreme Judicial Court of Maine. March 30, 1921.)

1. Wills 684(7)-Certificate of attending physician as to incapacity of beneficiary conclusive "evidence;" "proof" giving right to income on becoming incapacitated.

Where testator directed his trustees to pay annually to his nephew and his sister $500 if they should be incapacitated, etc., declaring that the trustees may act on their own judgment, but that a certificate of the attending physician should be accepted as proof of the incapacity, the certificate of the attending physician is conclusive; for the word "proof" should be given its technical significance-that is, a deduction from evidence that produces a conviction-and should not be construed as meaning "evidence," which is merely a medium of proof.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Evidence: Proof.]

2. Charities 36-Purpose of gift to benefit French population of given territory.

Where the will of a priest recited that it was his desire to establish at B. a monastery

lation, the principal purpose of the testator must be to benefit the spiritual welfare of the French population of B., and not the mere establishment of a monastery.

3. Charities 24-Trust will not fail for want of trustees; "pastor"; "priest."

Where a priest gave the bulk of his estate for the establishment of a monastery of the order of Carmelites to be devoted to the spiritual interests of the French population of B., but the trustees named renounced the trust, the trust will not fail for want of a trustee, but incumbents of the office of pastor of the two Catholic parishes of B. will be named trustees; the pastor being permanent official of the parish, and more than a mere priest, who holds a position of spiritual power without reference to locality.

[Ed. Note.-For other definitions, see Words and Phrases, Pastor.]

4. Charities 37-Where trust was for spiritual benefit of named population, cy pres doctrine has no application.

Where the purpose of a gift in trust for the establishment of a Carmelite monastery was to administer to the spiritual interests of the French population of a given city, there is no occasion for the application of the doctrine of cy pres, which is based upon the nonexistence of a precise beneficiary and the consequent diversion of the fund to the same general charitable purpose for which the trust was created, even though the trustees renounced.

Report from Supreme Judicial Court, York County, in Equity.

Suit by Rene Dupont against Edouard Pelletier and others, together with suit by Arthur A. Hamel and others against the same defendant for the interpretation of a win, On report. Bill of Rene Dupont dismissed, and that of Arthur A. Hamel and others sustained, and cause remanded to the probate court.

Argued before CORNISH, O. J., and SPEAR, HANSON, PHILBROOK, MORRILL, and WILSON, JJ. In Dupont v. Pelletier et al.:

Louis B. Lausier and Robert B. Seidel, both of Biddeford, for plaintiffs.

John P. Deering, N. B. & T. B. Walker, and Emery, Waterhouse & Paquin, all of Biddeford, for defendants.

In Hamel et al. v. Pelletier et al.:

N. B. & T. B. Walker, of Biddeford, for plaintiffs.

Louis B. Lausier, Robert B. Seidel, Emery, Waterhouse & Paquin, and John P. Deering, all of Biddeford, for defendants.

Charles L. Donahue and Paul E. Donahue,

SPEAR, J. This case involves the interpretation of the will of Pierre Emmanuel Dupont of Biddeford.

The first clause reads as follows:

"I give, bequeath and devise all my estate, real, personal, and mixed, wherever found and wherever situated, to the community of Carmelites located and established in Montreal, in the province of Quebec and Dominion of Canada, in trust nevertheless, to hold to them and to their successors in trust, for the following purposes:

"1. To pay to my nephew, Dr. Eugene Panneton, annually during his lifetime, the sum of five hundred dollars, when he shall become permamently incapacitated from earning his own living; but if his incapacity is of a temporary character, then to pay him a part of said sum of five hundred dollars, annually proportional to the time of his temporary incapacity. My said trustees may act upon their own good judgment and discretion in the matter, but a certificate of his attending physician shall be accepted as proof of his incapacity.

"2. To pay to my sister, Emma Picard, annually during her lifetime, in event that she may need assistance, the sum of five hundred dollars; but if such needy condition is temporary, then to pay her a proportionate part of said sum of five hundred dollars, proportional to the time of her needs. My said trustees may act upon their own good judgment and discretion in the matter, but a certificate of her attending physician shall be accepted as proof of her needs.

"3. It is my desire to establish in said Biddeford a monastery of the order of Carmelites to be devoted to the spiritual interests of the French population of said Biddeford, and I direct my said trustees to appropriate all my estate, subject to the foregoing provisions, to this object, and it is my desire that the same be accomplished as soon as practicable; but if for any reason it is not feasible that such monastery be established in said Biddeford, then the same may be established in another place, but it shall be devoted to the spiritual interests of such French population.

"Lastly. I do nominate and appoint Edouard Pelletier, of said Biddeford, executor of this will and request and direct that he may be authorized to act as such without giving bonds; but in the event of his decease or that he declines to act, then I nominate and appoint Joseph Panneton executor of this will and direct and request that he may be authorized to act as such without being requested to give bonds."

[1] The solution of the questions raised in items 1 and 2 is comparatively clear. They fall in the same category as to how the total or partial incapacity in the one case and the total or partial need in the other are to be ascertained. The testator in express terms leaves the determination of these matters to "good judgment and discretion" of the trustees, subject, however, to the final arbitration of the family physician.

The language of the testator in limiting the power of the trustees, in the exercise of

their judgment, in the respects named, provides:

"But a certificate of his attending physician shall be accepted, as proof of his incapacity," and of "her attending physician, as proof of her needs."

It is contended that the word "proof" should be construed to mean "evidence," and that consequently the certificate cannot be regarded as final. We are of the opinion, however, that the word "proof" as used in these conditions in the will was intended by the testator to be used in the legal sense.

Evidence is but a medium of proof. Proof is the effect of evidence; is a deduction from evidence that produces conviction: the establishment of a fact by the evidence. But, if the certificate is to be regarded as evidence only, to whom would such evidence be referred to determine whether it met the standard of proof? It must be to the trustees themselves, a proceeding which would merely remit the physician's certificate to "their judgment and discretion" and render the limiting clause inane and void. While the words "proof" and "evidence" in common usage are sometimes employed indifferently, we are yet of the opinion that the phrase "shall be ac cepted as proof" was intended to mean that the certificate of the physician should be final. It furthermore seems reasonable, at least, that the testator conceived of this provision as a method of finally settling any controversy that might arise between the beneficiaries and the trustees as to the degree of disability or need, the very question now raised by Emma Picard.

The trustees are invested with the same right to invoke the certificate as the beneficiaries. The limitation of this right to "his family physician" and "her family physician," not "their family physician," removes any doubt as to whom the referee shall be; in other words, the provision for the "certificate of the family physician" imposes a limitation upon both the beneficiaries and which each can have their privileges as well the trustees and furnishes a tribunal by as their rights determined.

It is therefore the opinion of the court that the trustees should act upon the certificate of the family physician as final proof of the total or partial incapacity or need of the beneficiaries as described in items 1 and 2.

The trustee named in item 3 declined to accept the trust, and therefore left the trust estate without a trustee. The present temporary trustees wish also to be relieved. Upon this state of facts two questions arise:

First, the intention of the testator, as discovered from the language of item 3, and the explanatory circumstances.

Second, must the trust fail for want of a trustee?

[2] The entire phraseology of item 3, considered in connection with the admissible evi