the amount of the judgment rendered No- WHEELER, C. J. The defendant submits vember 2, 1920, for $6,615.72, with interest her appeal upon the single point as to wheththereon, and to render judgment for sucher or not the plaintiff, by his acts and concombined sum in favor of plaintiff. able. In suit to compel the erasure of an undelivered deed from the records, whether defendant's statements as to defendant's ownership in the property when bills were presented amounted to a ratification of delivery was a question of fact, the decision of which by the trial court was not reviewable. 3. Appeal and error 1008 (1)-Question of fact not reviewable, unless conclusion from facts erroneous. In a suit to compel the erasure of an undelivered deed, finding on the question of ratification is not reviewable, unless the conclu sion drawn from the facts was plainly erro neous. 4. Evidence 271(18) —Recording lis pendens after discovery of recording of undelivered deed held not self-serving declaration, and inadmissible. In a suit to compel the erasure of an undelivered deed from the records, where plaintiff on cross-examination testified that he had told tradesmen to send their bills to defendant as she owned the property, but on redirect stated that on learning of the recording of the deed he had recorded a lis pendens, held, that the recording was an act indicative of plaintiff's intention, and the fact that it contained declarations in support of plaintiff's claim did not make the act and instrument inadmissible. Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge. Suit by Michael McDermott against Mary McDermott to compel defendant to cause an alleged undelivered deed of real estate owned by the plaintiff to be erased from the land records, and requiring the premises to be conveyed to the plaintiff. Judgment for the plaintiff, with appeal by defendant. No er duct, ratified the act of the defendant in The finding relates that the plaintiff ex- giving notice that he claimed title to the On The defendant relies for her conclusion of ratification upon the acts and statements of the plaintiff in telling a painter who had presented a bill for work done prior to the taking of this deed by the defendant that he should collect it of the defendant as she was the owner of this property; in telling the savings bank, about October 29, 1919, to send its bill for interest which it had sent to the plaintiff, to the defendant; and in telling the water company, and an insurance Charles J. Martin, of New Haven, for ap- firm, to send their bills to the defendant. pellant. The defendant subsequently paid each of James D. Hart, of New Haven, for appel- these bills. The trial court also found, in paragraph 43, that ror. lee. (115 A.) "All of said statements aforesaid concerning the sending of the bills to defendant and the ownership of the property were made by plaintiff because defendant had recorded said deed and the premises stood in her name upon the record, and as she was in possession of said property and was receiving the full benefit thereof, the charges against the property should be paid by her. Plaintiff in making such statements did not intend to and did not in fact ratify, confirm, or adopt the act of defendant in taking said deed into her possession and recording the same, nor intend that title to said premises should be and remain in defendant." The defendant assigns as error this finding that the plaintiff did not intend to, and did not in fact, ratify the taking of the deed in making these statements to the painter, the water company, the savings bank, and the insurance firm; and the defendant insists that the finding, thus corrected, will present a clear case of ratification of the possession by the defendant of this deed and of these premises. [1] Whether a grantor intended to make delivery of a deed is a question of fact; intention is a mental process, and of necessity it must be proved by the statement or acts of the person whose act is being scrutinized. When the question at issue was whether one had turned over his salary to his wife as a gift, we said: "The question, then, is whether, in a situation where the intent of the witness is material, he may testify directly as to his intent at the time of the transaction under investigation. We think he may, since intent is a mental fact requisite to create a gift." Fox v. Shanley, 94 Conn. 350, 362, 109 Atl. 249, 254. And in Meriden Trust & Safe Deposit Co. v. Miller, 88 Conn. 157, 162, 90 Atl. 228, 229, we said: * "We think the finding of the intent to make present gifts was an inference of fact open to the trial court to draw. A question of intent is a question of fact, the determination of which is not reviewable, unless the conclusion drawn by the trier is one which cannot reasonably be made." And in Humiston v. Preston, 66 Conn. 579, 34 Atl. 544, we held-where the question of the delivery of a deed depended upon the intent with which an act was performed that the question was one of fact, and the decision of the trial court thereon was not subject to review on appeal. Wiley v. London & Lancashire Fire Ins. Co., 89 Conn. 35, 39, 92 Atl. 678; Kronfeld v. Missal, 87 Conn. 491, 493, 494, 89 Atl. 95; Saltzsieder v. Saltzsieder, 219 N. Y. 523, 530, 114 N. E. 856. [2] The intention with which these state ments were made by the plaintiff, whether intending to ratify the conveyance to the defendant or not, was a question of fact, and in finding that the plaintiff did not intend to ratify this conveyance. [3] If the case were to be disposed of without the further finding of that part of paragraph 43 which recites that in these statements the plaintiff did not in fact ratify the conveyance to defendant, the facts found would lead to the conclusion that the plaintiff did not ratify, whether the conclusion be regarded as one of law or fact, or of mixed law and fact. If ratification be regarded as finding that plaintiff did not intend to ratify a question of fact, as our decisions hold, the of necessity would compel the inference that no ratification then occurred. But if ratification be regarded as a question of law, where the facts are undisputed, the only conclusion which these facts permit is that no ratification took place when these statements were made. Whether there has been a delivery of a deed, or a ratification of a deed, are questions alike in character. Some authorities say the question of delivery is one of law upon the facts. Lee v. Parker, 171 N. C. 144, 151, 88 S. E. 217; Saltzsieder v. Saltzsieder, 219 N. Y. 523, 530, 114 N. E. 856; Earle v. Earle, 20 N. J. Law, 347. Others say it is one of law and fact, upon a Johnston v. Kramer given set of facts. Bros. & Co. (D. C.) 203 Fed. 733, 736; Midkiff v. Colton, 155 C. C. A. 149, 242 Fed. 373, 379. Others hold it to be a question of fact. Bishop v. Burke, 207 Mass. 133, 140, 93 N. E. 254; Cook v. Lee, 72 N. H. 569, 572, 58 Atl. 511. And a few hold it to be ordinarily a question of fact, or a mixed question of law and fact. Wood v. Montpelier, 85 Vt. 467, 82 Atl. 671, 677, Ann. Cas. 1914D, 500. In Humiston v. Preston, 66 Conn. 579, 34 Atl. 544, we said that, where the delivery de pends upon the intent with which a certain act is performed, the question is one of fact; and similarly we held the question of waiver and abandonment one of fact, Chatfield Co. v. O'Neill, 89 Conn. 172, 175, 93 Atl. 133; also acceptance and acquiescence, Evarts v. Johnson, 88 Conn. 683, 686, 92 Atl. 434; and whether a contract had been repudiated, McLaughlin v. Thomas, 86 Conn. 252, 258, 85 Atl. 370. In Home Banking & Realty Co. v. Baum, 85 Conn. 383, 389, 82 Atl. 970, and Curnane v. Scheidel, 70 Conn. 13, 17, 38 Atl. 875, the trial court found the ratification as a question of fact. While in Gallup v. Fox, 64 Conn. 491, 495, 30 Atl. 756, the charge of the trial court, that ratification was a fact for the jury to find from the evidence, was not held to be error. Devlin on Deeds, vol. 1, (3d Ed.) p. 411, § 268, states the rule to be: "The question whether the grantor ratified the delivery, as against a mortgagee from the grantee relying upon the deed, is one that may be submitted to a jury." Since ratification in a given case depends ultimately upon the intention with which claimed, were done, and since intention is a tiff, and defendant brought exceptions, which mental fact, and its finding clearly one of were sustained, and plaintiff given permission fact, the finding in a given case of ratifica- to show cause why an order should not be tion is one of fact, and not reviewable, un- made remitting the case to the superior court, with direction to enter judgment for the deless the conclusion of ratification, drawn fendant. Cause remitted, with direction to enfrom the facts, is plainly erroneous. Nolan ter judgment for defendant. v. New York, N. H. & H. R. Co., 70 Conn. 159, 174, 39 Atl. 115, 43 L. R. A. 305. In Green, Hinckley & Allen, James B. Littleother words, unless the conclusion drawn be field, Abbott Phillips, and Clifford A. Kingsley, one which men reasoning in a reasonable way would not draw, the finding of ratification must stand, and, except for this limited purpose it is not reviewable. all of Providence, for plaintiff. John P. Beagan, of Providence, for defendant. PER CURIAM. In accordance with the re[4] The exception to a single ruling on script of this court rendered December 21, evidence is assigned as error. The plaintiff 1921 (115 Atl. 542) the plaintiff has been given opportunity to show cause why an order should testified in his own behalf, and on crossnot be made remitting the cause to the suexamination was asked if he had not gone perior court, with direction to enter judgment to the savings bank, the water company, the for the defendant. insurance firm, and the painter, and told fendant. ARNOLD REALTY CO. v. WILLIAM K. The plaintiff, by her attorney, appeared bethem to send their bills to defendant, as she fore the court at the time appointed and arowned the property, and, having answered gued the case at length, and after due considthese questions in the affirmative on redi- eration the court is of the opinion that no cause rect he testified that he had, upon learning has been shown by the plaintiff why such an of the recording of the deed, consulted a the cause be remitted to the superior court, order should not be made. It is ordered that lawyer, and caused to be drawn and record- with direction to enter judgment for the deed a lis pendens or caveat. This instrument contained a declaration of ownership of these premises by the plaintiff. The defendant objected to the offer in evidence of this lis pendens, upon the ground that it was a selfserving declaration, made after the fact. It was claimed in explanation of plaintiff's conduct and of his claim that he never intended to convey these premises to defendant. The court admitted the offer, and we (Supreme Court of Rhode Island. think properly. The recording of this instrument was an act indicative of plaintiff's intention, and the fact that it contained dec- be remitted to the superior court, with direcOn order to show cause why case should not larations in support of plaintiff's claim did tion to enter judgment. Cause remitted, with not make the act and the instrument inadmissible. Both were inseparable, and unless admitted the truth would have been shut out. We repeat what we said of the rule against the admission of hearsay evidence in Engel v. Conti, 78 Conn. 351, 354, 62 Atl. 210, 211: "It is not one that can be safely strained beyond its established limits." directions. 1922.) For former opinion, see 115 Atl. 565. Jan. 6, Gardner, Moss & Haslam, of Providence, for plaintiff. Lee, Boss & McCanna, George J. Sheehan, and Sigmund W. Fischer, Jr., all of Providence, for defendant. PER CURIAM. In accordance with the Other assignments of error we find no oc- opinion of this court rendered December 28, casion to consider. There is no error. The other Judges concurred. JACOBS v. GILBERT. (No. 5508.) 1921, 115 Atl. 565, the plaintiff has been given opportunity to show cause why an order should not be made remitting the cause to the superior court with direction to enter judgment for the defendant. The plaintiff by its attorney appeared before the court at the time appointed and argued the case, and after due consideration the court (Supreme Court of Rhode Island. Jan. 12, is of the opinion that no cause has been shown 1922.) by the plaintiff why such an order should not be made. It is ordered that the cause be reAction by Isabel R. Jacobs, administratrix, mitted to the superior court, with direction against James A. Gilbert. Verdict for plain- to enter judgment for the defendant. (44 R. I. 87) (115 A.) the testatrix. That portion of clause XXVI NEW ENGLAND TRUST CO. OF BOSTON of the will, with regard to the construction v. BROWN. (No. 530.) of which the question before us arises, is as follows: (Supreme Court of Rhode Island. Jan. 16, 1922.) Wills 684 (7)-Legatee held entitled to income from share trustee was directed to hold until legatee reached designated age. Will, directing trustee to pay specified annuities to named persons for 10-year term, to add any remaining income to the principal of the trust during such term, and on expiration of such term to pay over the principal in equal shares to named persons, and to retain the share of any such person until the arrival at the age of 21 years, if not of such age at time of distribution of such principal, held to entitle a named distributee, not of age at time of distribution of principal, to the income of his share until his arrival at designated age, in absence of express provision that payment of vested income, as well as the vested principal, should be postponed. "Clause XXVI. At the end of the term of ten years from my death said trustee shall pay over the principal of said trust fund (other than such portion as may be necessary to retain, if any, to pay the three annuities) discharged of all trust in equal shares to those of the following named persons who may be living at that time, namely." The testatrix then names 48 persons. "In the event that either of the above named parties shall not have arrived at the age of twenty-one years the said trustee shall retain his or her share until he or she shall have arrived at said age." Upon the payment to it of the residue of the testatrix's estate the complainant proceeded to administer the trust in accordance with its provisions. The period of the 10year annuities ended on December 10, 1920. Before that time one of the life annuitants Certified from Superior Court, Newport had died. Subsequent to December 10, 1920, County. Bill to construe will by the New England Trust Company of Boston, trustee, against Henry Brown. Cause certified to Supreme Court for determination. Decree ordered. Burdick & MacLeod, of Newport, for complainant. after setting aside a portion of the trust estate sufficient to pay the annuities to the two life annuitants then surviving, the trustee divided the trust fund remaining in its hands into as many equal shares as there were beneficiaries mentioned in said clause XXVI who were living on December 10, 1920, at the termination of the period of 10 Howard B. Gorham, of Providence, for re- years from the death of the testatrix. To spondent. each of the beneficiaries named in said clause who was living on December 10, 1920, and who had arrived at the age of 21 years, the complainant, trustee, has paid, or is ready to pay, one of said equal shares. The share of any beneficiary, living on December 10, 1920, who at that time had not arrived at the age of 21 years, the complainant re SWEETLAND, C. J. This is a bill brought by the trustee named in the will of Mary Elizabeth Woodhull Perry, late of the town of Middletown, deceased, for the construction of certain trust provisions contained in said will and for instructions. The cause being ready for hearing for final decree has been|tained, awaiting the time when such benecertified to this court for determination. ficiary should attain that age. The respondent Henry Brown, one of the beneficiaries named in said clause, is still a minor, and the trustee has retained his share. The testatrix died on December 10, 1910. Her will was duly probated. The executors, after paying certain bequests and fully administering the estate, turned over the resi- The respondent claims that until his madue to the complainant, to be held by it in jority he is entitled to receive the income of trust in accordance with the terms of the his share, so retained, as such income acwill. The provisions of the trust, material to crues. The trustee is in doubt as to its the question before us, are as follows: The duty in that regard, and has in its bill asked complainant as trustee is directed: First, to for instructions upon that point. Also said invest said residue, and from the income to complainant in open court has withdrawn its pay to three persons named "an annuity of request for instructions upon other matters. two thousand dollars each for and during the The interest of the respondent in his share is term of each of their lives"; second, "to pay vested. Unless the will shows an intention unto Anna Charlotte Moser Fuller if living, on the part of the testatrix that the income and if not living to pay unto her children upon such vested interest should be accuin equal shares, an annuity of five thousand mulated and not paid to the respondent until dollars for the term of ten years" after the he reaches his majority, he is entitled to redeath of the testatrix; third, to pay to eight ceive the same as and when it accrues. This persons named, if living, an annuity of $1,000 is in accord with the rule approved by this each for the term of 10 years after the death court as to income arising upon a vested inof the testatrix; fourth, to add any remain-terest when by the terms of its creation the ing income to the principal of the trust dur- full enjoyment of such vested interest is ing the term of 10 years after the death of postponed. Rogers v. Rogers, 11 R. I. 38, 115 A.-41 76; Butler v. Butler, 40 R. I. 425, 101 Atl. 115; Aldrich v. Aldrich, 43 R. I. 179, 110 Atl. 626. Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice. Suit by Domenica M. Bova and others against Antonio Buonanno and wife. From a decree ordering defendants not to remove a division fence and to move a new fence they had erected on the land of complainants to the line fixed by the division fence, defendants appeal. Appeal dismissed, decree affirmed, and cause remanded. Bennie Cianciarulo, of Providence, for appellants. Benjamin W. Grim, of Providence, for ap The amount of the respondent's share was fixed at the time of the division of the trust fund, at the end of the 10-year period. It was vested although the time of payment was deferred. The right to the income upon this vested interest is also vested in the re spondent. The will contains no express provision that the payment of the vested income, as well as the vested principal, shall be postponed; and such intention on the part of the testatrix will not be inferred, in the absence of some provision in the will from which an inference of such intention may fairly be depellees. duced. The complainant calls our attention to the provisions that during the 10-year periPER CURIAM. This is a bill in equity od the surplus of income over the amount re- for an injunction to restrain the respondents quired to pay the annuities should be added from changing the location of an old division to the principal. The complainant urges that fence, and to compel them to remove a few this indicates a general scheme of the testa- inches of the fire escapes on their building trix with regard to income, which would re- which overhang said division fence. After quire its accumulation upon the respondent's a hearing upon bill, answer, issues of fact, share until the time for payment of the share and oral proof, the presiding justice of the arrived. There is not such a connection be superior court found that the division line tween the two matters as to warrant the in-between the land of the parties was on the ference which the complainant would have us line of the division fence, but declined to draw. During the 10-year period the para-order the respondents to remove so much of mount purpose of the testatrix was that there the fire escapes as overhung said fence. A should be sufficient income from the trust final decree was entered ordering the reestate to satisfy the annuities, and she might spondents to refrain from removing said diwell require that any surplus of income vision fence, and to move a fence they had should go to augment the principal the bet-erected on the land of the complainants to ter to insure the fulfillment of that purpose, in any contingency. Whatever may have been the testatrix's purpose, however, in providing that surplus income should be added to the principal of the trust estate during the 10-year period, that provision furnishes no sufficient basis for the assumption that The respondents claim that the old division the testatrix intended, what she has not ex-fence is on their land almost one foot of its pressed, that the income on the respondent's vested share should be accumulated. Our conclusion is that until the respondent arrives at the age of 21 years, and until his share is paid to him by said trustee, the respondent is entitled to receive the income upon said share as and when it accrues. During the respondent's minority such payments should be made to the respondent's guardian for the use and benefit of the respondent. the line fixed by said division fence. The respondents have brought the case to this court upon their claim of appeal from said decree, alleging as grounds therefor that it is against the law and the evidence and the weight thereof. entire length, and that they were proceeding to rebuild their half of it on the correct division line when these proceedings were commenced. The evidence proves that the complainants purchased their land December 13, 1904; that the fence in question was then standing on the assumed division line, and that it had been there then for more than fifteen years. It also appeared that soon after the complainants purchased the land they erected a The parties may present to us a form of house on it and caused a concrete walk to decree in accordance with this opinion. be laid, occupying all the space between their house and said division fence, and that since then they have had the exclusive use and possession of the land covered by said walk. When the respondents purchased the adjoining land, February 13, 1915, the fence was standing, and remained so until they attempted to relocate the rear half of it. There is sufficient evidence in the case to justify the finding that the division line be tween the land of the parties is the line of the old fence, and, under the principle es |