(115 A.) "Please find check for Strathmore coal royalty, also Cottage Steel mine. Will mail statement by next mail; have been delayed in getting statement at Cottage Steel on account of some coal that was sold through the tram at Bayard." $58.28 was for royalties for the month of February, and balance, $3.76, on January operations, which was not included in former check as the error in the amount owing for that month was discovered after the check had been sent therefor. In this letter Llera gave the total number of tons mined, and In this letter there were, as Rees testified with his letter inclosed two statements, one three checks; one of these "related to propfor each of the months of January and Feb-erty on the West Virginia side," and that ruary, 1918, showing the amount, as claimed "we cashed." The others were returned, but by his company, shipped by the railroad, before returning them photographic copies giving in separate columns car number, ini- were made by the appellee, and these were tial of car, and number of tons, as well as offered in evidence, one for $21.30 and the the amount used in production, but there other $105.15. still was no statement from the railroad company. This was the last communication until October 26, 1918, when Llera delivered in person to Rees a letter of that date, which is as follows: "Gentlemen: We hand you herewith monthly statements of coal mined by this company from the Strathmore mine, which we hold under our lease with you, our property. "Recapitulating the monthly statements which are furnished herewith, would state that the tonnage mined is as follows, including boiler tonnage: January, 1219.77 tons mined, royalty 5¢ per ton February, 1162.55 tons mined, royalty 5¢ per March, 1501.48 tons mined, royalty 5¢ per ton Less amount paid you Feb. 25, 1918....... $60 98 38 90 50 80 53 23 42 60 54 09 $480 47 $423 12 "We find that you have not cashed our check No. 259, dated March 27th, for $62.04, nor have you cashed our check dated May 25, 1918, amount of $114.45. "We hereby tender you in United States currency the amount of four hundred twenty-three dollars twelve cents, $423.12, legal tender, in full of royalties due your company from this company to date. "Yours very truly, "Strathmore Coal Mining Co., "Manuel M. Llera, President." On September 27, 1920, Rees received a statement, sworn to by Price, to which were attached two checks signed by Price as treasurer of the Strathmore Coal Mining Company, one for $380, dated September 11, 1920, and the other for $132.50, which does not appear to be dated at all. These checks were offered in evidence by the appellee. This statement was headed "Strathmore Mine No. 1," purporting to give the number of tons supposedly taken from that mine in each of the months from December to August, both inclusive, with a computation of the amount of royalty due thereon. Rees in his testimony stated that no statements were ever received by the appellee and no payments were ever tendered to it other than the statements and payments above mentioned. The appellant is not only charged with default in the nonpayment of the royalties at the times stipulated in the lease for the payment of the same, which by the terms of the lease gave to the plaintiff the right to enter and take possession of the leased property, but it is further charged with the breach of the covenant contained in the lease, to exhibit to the lessor a copy of the statement from the agent of the railroad company showing the number of pounds of coal shipped upon its road by the said lessees during the preceding month and taken from the leased premises. The appellee was obliged to rely largely upon the appellant in ascertaining the amount of coal mined by it, and, as the amount of rental for the leased mines depended upon the amount of coal taken therefrom, this provision of the lease was of great importance to the appellee, and it was fully warranted in demanding that the apWith the above letter were statements for pellant should comply with it, and this the the months named from January to Septem-appellee did so early as February 25, 1918, ber, both inclusive, giving the date of ship-in its letter of that date. ment, car number, its initial, and the number Nowhere in the correspondence is it of tons therein, but without any statement of claimed by the appellant that the statements same from the railroad company. Rees de- sent were a compliance with the covenant nied the receipt of the check for $114.45, to exhibit statements from the railroad commentioned in said letter, though Price said pany; and it is not claimed, except by Price, he admitted to him that he had received it. that any statements other than those appearThis was the last of the correspondence being in the record were ever exhibited to the tween Llera and Rees, so far as the record appellee, and he contents himself by simply discloses, but on March 6, 1920, Price wrote stating that others were sent. It may have obtaining such statements because of the act [ rights of the plaintiff to recover therefor of Price, as testified to by some of the wit- be equal to those of a plaintiff in an acnesses of the appellee, in mixing the coal tion of trespass? If this be not so, a lestaken from the leased mine with that taken see can make default, pay only the royalty, from another mine before or at the time it and sell the coal and not be required to was loaded upon the cars of the railroad account to the owner therefor, although company; but, if this be true, the appellant his lands are wrongfully withheld from him. was not released thereby from its covenant-There can be, we think, no doubt as to the one, as we have said, so important to the plaintiff's right to recover damages therefor appellee. The evidence we have stated tending to show the default of the appellant entitling the appellee to re-enter and take possession of the leased premises was, in our opinion, legally sufficient to go to the jury; consequently, we find no errors in the court's rulings on the defendant's first, second, third, fourth, sixth, and seventh prayers asking that a verdict be directed for the defendant. [2] The plaintiff's fifth prayer, which is upon the question of damages, states: "As a matter of law, that if it [the court] shall find the plaintiff had a right to re-enter the lands described in the declaration because of a default, but that the Strathmore Coal Mining Company thereafter remained in possession, negligently disregarding the fact that the lease had terminated, if the court shall so find, then the measure of damages is the value of all coal mined and carried away by such defendant after the expiration of 30 days from the defendant's receipt of the notice to quit, up to and until the day of trial, estimated either by finding the price at which it would sell when brought up to the surface, and deducting the mere cost of bringing it there from the place where it was dug, or by finding its worth before it was removed from the place where it was dug, after it had been severed from the frechold." The statute of this state (article 75, § 71), provides that the plaintiff in an ejectment case "shall recover as damages the mesne profits and damages sustained by him and caused by the ejectment and detention of the premises": and in Gibbs v. Didier, 125 Md. 486, 94 Atl. 100, Ann. Cas. 1916E, 833, this court held that the plaintiff could not claim rent or other profits in an action of ejectment and then, upon failure recover them, thereafter recover such damages in another suit. to It would therefore seem that if the plaintiff in an ejectment suit is confined to damages recovered therein, and cannot thereafter in another action sue for and recover those damages which he had suffered but had failed to recover in such ejectment suit, then his right to recover for damages suffered by him caused by the ejectment and detention of the premises should be coextensive with his right to recover in trespass cases. For example, if the plaintiff in this case was entitled to the property by reason of the default of the defendant, and the same is wrongfully withheld from it, why should not the liability of the defendant be as in cases of ejectment as much so as in trespass cases. Article 75, § 92, provides that "In the absence of fraud, negligence or willful trespass, the measure of damages for the wrongful working and abstracting of another's minerals is the value of the minerals in their native state, before severance, to the person from whose property they were taken at the time of the taking; but if one furtively or in bad faith works and abstracts minerals from the land of another, the party so offending may be charged with the whole value of the minerals taken and allowed no deduction in respect of his labor and expenses in getting them." In Mt. Savage G. Ck. Co. v. Monohan, 132 Md. 664, 104 Atl. 483, this court speaking through Chief Judge Boyd, said, in construing said statute: "The measure of damages fixed by the first paragraph does not apply, if the party taking the coal was negligent, because it is only in the absence of fraud, negligence, or willful trespass that the rule applies. If 'negligence,' as used in the first paragraph, is not embraced in one of the terms 'furtively or in bad faith,' as used in the second paragraph (and it would scarcely be contended that it is), then there is no part of the statute applicable to a case where there was negligence, and if it is included, then the appellant cannot complain of the measure of damages allowed, as it even got the benefit of the deduction for the cost of removing the coal to the mouth of the mines. But it is clear that the statute does not change the rule when the minerals are taken as the result of the negligence of the defendant." Therefore, as the statute does not apply to this case, the measurement of damages applicable thereto is that which existed prior to the passage of the act, which is clearly stated in Barton Coal Co. v. Cox, 39 Md. 1, 17 Am. Rep. 525; Franklin Coal Co. v. McMillan, 49 Md. 549, 33 Am. Rep. 280; and Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, 43 Am. Rep. 560, that the plaintiff is entitled in cases of this character"to recover such sum per ton as the jury may find the said coal so mined was worth first severed from its native bed, and before it was put upon mine cars, without deducting the expense of severing said coal from its native bed." And this is the measurement of damages stated in the plaintiff's fifth prayer. The defendant, however, filed special exceptions to this prayer, in one of which it is (115 A.) There was "no evidence as to the price at which the coal would sell when brought to the surface at the time it was dug and the cost of bringing it to the surface from the place where it was dug, and because there is no evidence as to the market value of the coal before it was removed from the place where it was dug, after it had been severed from the freehold." The only evidence found in the record bearing upon this special exception is that of William A. Price and Robert Stallings. Price, when asked the market price of coal at Cumberland, the nearest market to the mine, of the quality of that mined at Strathmore, in the month of January, said he would have to refer to his notes; that he could not answer the question without them; that the price of coal had varied so that he could not carry it in his mind. He was asked the same question as to other months, and his answer was practically the same. A part of the time the price of coal was fixed by the government at $2.75 on the cars at the mines, but at times he could not get so much as that, and when asked the cost of conveying the coal after it was dug from the pit to the car, he answered: "That would be different every day. "Q. What would it be? A. $1 up to $2.❞ He, however, kept no account of the cost in getting the coal from the mine to the tipple and then to the cars. It was an estimate only of what it would cost, and it was hard to make an estimate in developing an old mine. Mr. Stallings testified that the price of coal during the period involved in this suit varied greatly, and at times the government price of $2.75 was effective, and others it to establish a value at such place, from which the cost of its removal from the place of its severance is to be deducted in ascertaining its value at the point of severance, if it should be held that there was evidence legally sufficient to go to the jury tending to show the costs of such removal; therefore the special exception should have been granted. [5] The other special exception to the prayer that there was no evidence that the appellant company remained "in possession negligently, after the alleged termination of the lease," was properly overruled. [6] The withholding of the leased property from the lessor, under the facts and circumstances of the case, was evidence tending to show that the appellant remained in possession negligently after the alleged termination of the lease. "The court's statement of the law of the case," in our opinion, correctly presents the law applicable thereto, and the special exceptions were properly overruled. The de-. fendant's ninth, tenth, and eleventh prayers being in conflict with the court's instructions, they were properly rejected. The court's action upon the first exception relating to evidence was, we think, proper, as we fail to see in what way the inquiry made as to the lot therein named, which was not included in the lease, bears upon the issues of the case; and the same is true of the two succeeding exceptions. Because of the court's error in overruling the special exception above mentioned to the plaintiff's fifth prayer, the judgment of the court below will be reversed. Judgment reversed, and a new trial award was not, and at times it got so low as $1.75 ed, with costs to the appellant. per ton. He was asked if he knew or could approximate the cost of mining and putting the coal on the cars at Strathmore mines; he replied that he did not know. [3] The burden was upon the plaintiff to prove the value of the coal at the place of its severance after it was severed from the freehold. This could be done by evidence of its value upon the surface of the mine, less the cost of removal thereto from the place it was severed. [4] The evidence offered, we think, is entirely too vague and indefinite to prove the essential facts imposed upon the plaintiff under the rule. There was no evidence given at all, either by Price or Stallings, as to the value of the coal when severed, and their evidence as to the value of the coal upon the surface was too vague and indefinite 115 A.-40 Order of Court Modifying Opinion. The motion of the appellee filed July 25, 1921, and the answer of the appellant to the order of this court filed October 28, 1921, being read and considered, it is ordered this 2d day of December, 1921, by the Court of Appeals of Maryland, that the judgment of this court as announced the 29th day of June, 1921, be and is hereby modified, so that the part of the judgment of the lower court for the plaintiff for the coal and mining rights appurtenant thereto as claimed in the declaration be and is hereby affirmed, and that the part of the judgment for $10,000 damages against the Strathmore Coal Mining Company be and is hereby reversed, and the cause remanded for a new trial as to the said damages only. (97 Conn. 102) CLOSE v. BENHAM et al. (Supreme Court of Errors of Connecticut. Dec. 23, 1921.) 1. Wills 524 (2)-Gift to next of kin held to a 'class at testator's death. Under a will giving two-thirds of testator's estate in trust to pay the net income to his two daughters during their lives, and, on the decease of either, one-half of such two-thirds to the issue of such daughter, and, if no issue, this half to testator's next of kin, held that, on the death of a daughter without issue, the gift to the next of kin was to a class, and the title to the deceased daughter's share vested in the class at testator's death, not at the daughter's death. 2. Wills 509-"Next of kin" held those en titled to take under the statutory distribution of intestate estates. Under a will giving two-thirds of testator's estate in trust to pay the net income to his two daughters during their lives, and, on the decease of either, one-half of such two-thirds to the issue of such daughter, and, if no issue, this half to testator's next of kin, held, that "next of kin" meant those entitled to take under the statutory distribution of intestate estates, and not the nearest blood relations according to the law of consanguinity. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Next of Kin.] 3. Wills 555 (3)-Life tenant held excluded from gift over to next of kin on failure of issue of life tenant. Where a life use is given, with remainder over to life tenant's issue, and, failing such, to testator's children, heirs, or next of kin, or other class, it is presumed that testator intended to exclude the life tenant from such class, unless a contrary intent is manifest in the language of the will. 4. Wills 555 (3)-Life tenant held excluded from gift over to next of kin on failure of issue of life tenant. Under a will giving two-thirds of testator's estate in trust to pay the net income to his two daughters during their lives, and, on the decease of either, one-half of such two-thirds to the issue of such daughter, and, if no issue, this half to testator's next of kin, held, that one of the two daughters, who died without issue, was excluded from the gift over to the class of next of kin. Case Reserved from Superior Court, Fairfield County; John P. Kellogg, Judge. Suit by Frank N. B. Close, trustee, against F. Nelson Benham and others, to determine the validity and construction of the will of Junius N. Benham of Bridgeport, deceased, brought to and reserved, on the facts stated in the complaint, for the advice of this court. Will construed. William H. Comley, Jr., of Bridgeport, for defendant Close. Edward J. McManus, of Bridgeport, for defendant administrator of estate of Lizzie Benham. WHEELER, C. J. Those provisions of the will of Junius N. Benham which we are asked to construe gave two-thirds of his estate in trust to pay the net income therefrom equally to his daughters, Mary B. Close and Lizzie Benham, during their lives. Upon the decease of either, one-half of the two-thirds was given to the issue of the deceased daughter, equally and per stirpes; and, in case the deceased daughter left no issue, this share was given to the testator's next of kin, to be divided among them equally per stirpes. Lizzie Benham died without issue, and the share whose income she had enjoyed vested in the next of kin of the testator. The first question for our decision is: When did the title to this share vest, at the testator's death, or at the death of the life tenant? The second: Who are the next of kin, the nearest blood relatives, or those entitled to take under the statutory distribution of intestate estates? And the third: Is the estate of Lizzie Benham entitled to a one-third part of this share? [1] 1. The gift to the next of kin was one to a class. We have uniformly held that, unless the will sufficiently expresses a contrary intent, a limitation over, after a life estate, to the issue of the life tenant, and, failing issue, to the heirs, or heirs at law. or to the children or grandchildren of the testator, or to children of another than the testator, are gifts to a class, and vest in point of right upon the testator's death, al- . though their right of possession is postponed until the termination of the life estate. We have adopted this rule in the belief that it leads to the early vesting of estates, and will carry out the probable intent of the testator, where the will indicates no contrary intent. Norton v. Mortensen, 88 Conn. 28. S9 Atl. 882; Allen et al., Trustee, v. Almy, executor, et al., 87 Conn. 517, 89 Atl. 205, Ann. Cas. 1917B, 112; Bartram v. Powell, 88 Conn. 86, 89 Atl. 885; Wilde, administra tor c. t. a., v. Bell et al., 86 Conn. 610, 87 Atl. 8; Nicoll Tr. v. Irby, executrix, et al., 83 Conn. 530, 77 Atl. 957. This ruling is equally applicable to every class gift, and hence to the gift to "next of kin." Authorities elsewhere so hold with marked unanimity. Note to Tatham's Estate, Ann. Cas. 1917A, 855, 859. This will, read in the light of the circumstances surrounding the testator, does not indicate in any particular an intention of the testator to postpone the vesting of the estate until the termination of the life es David S. Day, of Bridgeport, for defend- tate. And we have expressly held that the ant Benham. creation of the life estate is insufficient to (115 A.) * * base thereon an implication that the testa-, as his living brother and sister would have. tor intended such postponement. Thomas v. Castle, 76 Conn. 452, 56 Atl. 854. [2] If "next of kin" designates a class, and the title to this share vests in the class at the death of the testator, our next question is: What persons are included within this term? It is used in the law with two meanings: (1) The nearest blood relations according to the law of consanguinity; and (2) those entitled to take under the statutory distribution of intestate estates. We are to ascertain in which sense it is used in this will. Of course, the intention of the testator, adequately expressed, will determine. Where this is not manifest, some courts adopt the first, and some the second, meaning. The greater number of the cases attribute to this term, when used without qualifying words, the meaning of nearest blood relatives. This is the construction now adopted by the courts of Great Britain, Massachusetts, and Michigan. Elmsley v. Young, 2 Myl. & K. 780; Swasey v. Jaques, 144 Mass. 135, 10 N. E. 758, 59 Am. Rep. 65; Clark v. Mack, 161 Mich. 545, 126 N. W. 632, 28 L. R. A. (N. S.) 479. While in Ohio, New Hampshire, and North Carolina the term is held to designate those entitled to take under the statute of distributions. In Godfrey et al. v. Epple et al., 100 Ohio St. 447, 126 N. E. 886, 11 A. L. R. 317, a life estate was given to the wife, and after her death the estate remaining was directed to be divided "equally between my and my wife's nearest kin." The court held that nearest of kin meant those entitled to take under their statute of distribution. Nearest of kin and next of kin are synonymous. The opinion of Chief Justice Nichols expresses our thought as to the meaning of next of kin in a will where there are no qualifying words: * * Having the choice, therefore, of construction, we are disposed to adopt the interpretation that appears to us to be most consonant with the principles of natural justice, and which conforms to the well-settled legislative policy of the state, as well as the later judicial construction given the same phrase when found in our statutes." Id.; Pinkham v. Blair, 57 N. H. 245; May v. Lewis, 132 N. C. 115, 43 S. E. 550. If next of kin be construed to mean nearest blood relatives, then the right of representation is denied, and children take to the exclusion of wife or husband. In common speech and general understanding, next of kin would include the children of a deceased child and the wife and husband. We are persuaded that it will carry out the testator's intent more often if we hold that this term, in the absence of qualifying words, was intended by the testator to include those who fall within the designation in the general speech and understanding of men, rather than in their primary and original sense as the nearest in blood. If we construe this term in connection with the other clauses of the will, as read in the light of the circumstances surrounding the testator, we find strong corroboration of his intention not to exclude the child of his deceased son. The will give one-third in fee simple to an only son, Frank N. Benham, the use for life of two-thirds to two daughters equally, with remainder to their issue, and upon the decease of either to the testator's next of kin. Here is the manifest intent of the testator to give his property to his blood, one-third to his son outright and one-third to the issue of each daughter after the mother's life use. And there is also the manifest intent to give equal shares to the son and the issue of the two daughters. If the right of representation is denied, and Lizzie is held to be one of the next of kin of the testator at his death, she may give her interest to whomsover she will, and the intention of the testator will thus be defeated. If Frank N. Benham survived the testator's daughters, he would thus have had a two-thirds share of this estate; and if Mrs. Close survived both Frank and Lizzie, she would have had a two-thirds share of this estate; and if Lizzie survived Frank and Mrs. Close, she would take a one-third share of this estate. This would destroy the scheme of equality "In a primary sense, some authors say these expressions indicate the nearest degree of consanguinity. If it were followed, it would mean that, if a married man by his last will should provide simply that his property should pass to his nearest of kin, his wife, should she elect to take under the will, would be barred from all participation in the estate; and yet it is indisputable that, if the married man in whose home domestic felicity reigned were asked as to his conception of the personnel of his nearest of kin, his certain reply would be, 'My wife.' The primary sense, it is therefore fair to say, is not by any means the universal, or even popular, sense of the term. There is a primary rule, applicable to the conWould it be natural for him to intend to struction of wills, that the heir at law shall make it possible for Lizzie to exclude his not be disinherited by conjecture, but only grandchildren from one-third of his estate? by express words, or necessary implication. The testator must be presumed to have We do not feel inclined to favor a known our statute of distributions and to construction, unless it be a necessary one, against all principles of natural justice and have made his will with reference to that law. Its division must be regarded as the against the well-settled policy of inheritance as provided by our law. We believe that the policy of our law. The gift to the issue and children of a testator's deceased brothers and to the next of kin, equally and per stirpes, sisters have just as much claim on his bounty is significant of the intention of the testa 2 * of the will. |