as soon as the reasonable convenience of counsel permits. We think it was the duty of said justice to receive and rule upon the defendants' requests for instructions.

[3] The twenty-third exception is to the refusal to instruct the jury in accordance with the seventh request as follows:

"If the plaintiff, while approaching the inter

section of the streets where the accident occurred was driving his machine at an unreasonable rate of speed, which speed contributed to the accident, he cannot recover even though the defendant was guilty of negligence."

The correctness of this proposition cannot be denied, and the rule is too elementary to require discussion.

[4] The twenty-fourth exception is to the refusal to instruct the jury in accordance with defendants' eighth request, as follows: "Driving a car the wrong way on a one-way street does not make the driver liable for all accidents that may occur."

Exceptions from Superior Court, Androscoggin County, at Law.

Leverne Arris was convicted of willful neglect of his wife, and refusal to furnish her and her children with support, and brings exceptions. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

B. L. Berman, Co. Atty., of Lewiston, for the State.

Frank O. Purington, of Mechanic Falls, and Tascus Atwood, of Auburn, for defendant.

SPEAR, J. This case comes up on exception. A statement of facts as taken from the defendant's brief is as follows:

"As will be seen by the complaint and motion before the court as a part of the exceptions, this case originated before the municipal court for the city of Auburn on the complaint of Evelyn Mae Arris, and is founded on section 38, c. 130, of the Revised Statutes.

"At the trial before the Auburn municipal court the respondent was found guilty and sen

The discussion of the fifteenth exception is applicable to this request. It was error to deny the defendants' eighth request. The twenty-third and twenty-fourth excep-tenced under the provisions of said section, tions are sustained.

It appears that at least two of defendants' requests for instructions should have been granted, and as said justice did not rule specifically upon each of the defendants' 20 requests for instructions, and as we cannot infer that he would not have ruled correctly in each instance had he examined said requests, we do not consider the exceptions taken to the refusal to charge, as requested in the remaining 18 requests for instruc

from which finding and sentence the respondent appealed, and was ordered by said court to recognize with sufficient sureties for his apcourt for the county of Androscoggin (which pearance at the April term of the superior term is not a grand jury term), and did so recognize.

"At the April term of said superior court the county attorney elected to try the respondent before a jury on the original complaint without action of the grand jury, and on such trial the respondent was pronounced guilty by the jury and sentenced by the court; whereupon the respondent filed a motion in arrest of judg

ment, which motion was overruled by the court, to which ruling the respondent alleged exceptions."

We think the exceptions must be sustained.

This case originated in the Auburn munici

(Supreme Judicial Court of Maine. Jan. 12, ral court under R. S. c. 120, § 38, authoriz

1922.)

Indictment and information 3-Neglect and

ing a complaint by the wife against the husband for his willful neglect and refusal to

furnish her and her children with support,

and provides, in case of conviction, for the

nonsupport of wife and children a "felony" and "infamous," requiring an indictment. Willful neglect of wife, and refusal to fur-following penalties, namely: nish her and her children with support, designated a "felony" by Rev. St. c. 120, § 38, is a "felony," and is "infamous" within Const. art. 1, § 7, providing that no person shall be held to answer for a capital or infamous crime unless on a presentment or indictment of a grand jury, though the prosecution originates in a municipal court, in view of Rev. St. c. 120, § 1, chapter 133, § 11; and such is true of any crime designated a "felony" in the statutes and punishable by imprisonment in the penitentiary. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Felony; Infamous.]

That he "shall be deemed guilty of a felony, and on conviction thereof shall be punished by a fine of not more than five hundred dollars or by imprisonment with or without hard labor for not more than two years, or by both such fine and imprisonment."

Section 41 of the same chapter provides that

"Judges of municipal and police courts and trial justices within their respective counties shall have original and concurrent jurisdiction with the Supreme Judicial Court and superior court."

(115 A.)

The only question for determination is | as in State v. Cram, 84 Me. 271, 24 Atl. S53. whether the respondent should be required In other words, an offense declared by statute to be a "felony" ends all discussions as to whether it is a felony or something else. Exceptions sustained.

It is not the prerogative of the court to legislate; and the only premise upon which the court could proceed to interpret the Suit by Thomas F. McCran, Attorney Genabove language would be to declare that the eral, against Myrtle Kay and others for an word "felony" as used in section 38 does not accounting. Decree in favor of the defendmean "felony" as defined in the other sec-ant Anna E. B. Linnett. tions,. and, if it is so said, then it is at once confronted with the question:

A felony being an infamous crime, the re-carry out the provisions of her will. spondent could not be held to answer to the Miss Corey, a resident of Newark, died offense charged against him in the complaint, December 2, 1912, and her last will and tesexcept upon indictment. As the offense tament was duly admitted to probate, and charged in the statute is there defined as a letters testamentary were issued only to felony, we do not reach the question at all Nancie Kay, as the other named executrix, which involves the discussion of whether testatrix's niece. Anna E. Baldwin Linnett, certain statutory offenses not so defined may had by her marriage become disqualified as be regarded as a felony or some lesser crime, an executrix, under paragraph 8 of the will.

establishment of a lodging house at night for destitute women prove to be, in the judgment of executrices and advisors, with the same, a failure, a hospital for sick animals shall be established, free from all associations or part-peatedly defined by the courts in England nership with the so-called 'Humane Society,' or

(115 A.)

that testatrix, with an exaggerated idea of agement and of location, and in the collection the value of her estate, contemplated the es- and transportation of sick animals. tablishment and maintenance of the lodging But such contractual method of adminis house, or hospital, on an elaborate and ex- tering the trust would be contrary to the tensive scale, and considered her residence wishes and purposes of the testatrix, for she on Quitman street and the grounds surround- has directed that such a hospital shall be ing it suitable for her purposes. Her will not only maintained, but established, and, was made in 1907, and possibly her estate if possible, that this should be done in one was then much more valuable than it is now. The real estate now constituting the bulk of the trust fund has no income value, and must be sold and converted into money to provide any income, and also to avoid the continual drain upon the small personal estate to pay taxes, repairs, and other fixed charges; and such a sale of the realty would, of course, prevent its use for either a lodging house or a hospital; and, if the realty is not sold and the small personal estate is used to repair and equip the buildings for the purpose of a lodging house or hospital, the trustee, if appointed, will be left practically without income for the maintenance and management of the same.

It has been suggested that if the realty were sold and the proceeds invested, with the amount of the personal estate, a possible annual income of $1,000 or $1,200 would be derived therefrom, and that this income would enable the trustee to contract with some existing association, or establishment, or with a veterinarian, to maintain a hospital for sick animals, on at least a limited scale.

Aside from other objections to be mentioned, it appears from the testimony that the lodging house could not be established and maintained in rented premises on $1,200, which is the largest amount of income the trust estate is likely to produce; and it also appears that this income, without any deduction for the expenses of administering the trust, would be insufficient to support any establishment entitled to be called a hospital for sick animals.

The evidence is that the wages or salary of an attendant for such a hospital, if the experiment were made to establish it under contract, would be at least $1,000, and that in addition there would be other expenses connected with such a hospital to be paid out of the income, and that under such an arrangement but very few sick animals could or would be cared for. And that in addition there would always be expenses to be provided for in connection with change of man

of her houses and on the lands connected with the same; and to insure both the establishment and maintenance of said hospital she has selected the visitors, as well as the matron, or manager, for it; and she has further directed that the hospital shall be established and maintained "free from all associations or partnership with the so-called Humane Society,' or its members"; and she has further directed that the hospital shall be entirely under Protestant management, and that only Protestants shall be employed as matron or helpers in any capacity.

In view of the present condition and value of the trust estate and the amount of net income likely to be received therefrom, coupled with the impracticability of adopting and enforcing, in apparent conflict with the terms of the will, a continuous contractual method of administering the trust that will annually care for any reasonable number of sick animals under Protestant management exclusively, and that will always be free from all associations or partnerships of any so-called "Humane Society" or its members, and in the absence of any proof showing the possibility of executing either trust in any practical way, or in any way that will effectuate the intentions of the donor, it must be concluded that neither trust is possible of execution, in accordance with the terms of the will or under the cy pres doctrine.

As it is impossible to carry out the expressed general charitable purposes of the testatrix by the means specified by her, or by the use of other means or methods, a decree will be advised that the gift lapses, and, as no other disposition has been made of the estate, it will go to Mrs. Linnett, as the sole heir at law and next of kin of the testatrix. MacKenzie v. Trustees, etc., 67 N. J. Eq. 652, 61 Atl. 1027, 3 L. R. A. (N. S.) 227; Brown v. Condit, 70 N. J. Eq. 440, 61 Atl. 1055; Rector, etc., of St. James Church v. Wilson, 82 N. J. Eq. 546, 89 Atl. 519, affirmed Crawford v. Lees, 84 N. J. Eq. 324, 93 Atl. 201.

The costs and allowances if any, should be paid from the estate.

(93 N. J. Eq. 296)

HAHN v. HAHN. (No. 49/541.)

(Court of Chancery of New Jersey. Oct. 27, 1921.)

find therefrom a willful desertion on his part, when he did not in fact desert the petitioner."

I am unable to agree with the master. The view that there was no willful desertion on the part of the husband because the wife,

1. Divorce 37 (3) — Departure not test of and not he, left is unsupportable. Departure desertion.

The desertion contemplated by the third section of our Divorce Act is not the physical absence of one of the married couple from the other, but such absence in a prescribed condition of mind, a willful and obstinate desertion.

2. Divorce 37 (8)-Wife held deserted and entitled to decree.

A wife was entitled to a decree of divorce on the ground of desertion, where defendant husband refused to provide for her and took her into his parent's home, from which place they were ordered out by the parents for failure to pay for their keep, and the wife left, but the husband remained, although the wife did not let defendant know that she was willing to live with him; there being no rule requiring a deserted wife to approach her husband to have her marital rights restored, but such duty being imposed by the law upon the husband.

Action by Myrtle Hahn against William Hahn to obtain a divorce. On petitioner's exceptions to master's report. Decree for pe titioner.

John P. Manning, of Newark, for exceptant.

is not the test of desertion. The desertion contemplated by the third section of our Divorce Act (2 Comp. St. 1910, p. 2028) is not the physical absence of one of the married couple from the other, but such absence in a prescribed condition of mind—a willful and obstinate desertion. Hyland v. Hyland, 55 N. J. Eq. 35, 36 Atl. 270. Here the wife was compelled to leave the roof that sheltered both by the command of the defendant's mother. He sullenly heard and saw her driven away without a word of reproach to his mother or one of sympathy or comfort to his wife. He furnished the motive for the separation, and was responsible for its execution. His mother's orders became his orders. He deserted his wife by staying where she was not permitted to be, and his abandonment of her and their child ever since reflects his mental attitude towards her.

The master, not satisfied that the desertion was obstinate, reports on this phase of the case that

"The obstinacy of the desertion might be found from the petitioner's testimony that she was ready and willing to live with her husband, BACKES, V. C. [1, 2] The master, to whom and would have lived any place with him. This this uncontested divorce case was referred, testimony was corroborated by the testimony reported adversely, and it is before me on of her mother, who states that her daughter exceptions. The evidence shows that the par- has talked with her about living with her husties were married July 18, 1915. They band, and that she was willing to go with him lived together in a single room for 17 months. in just one room. She never, however, so far as During that time the petitioner was main-I can find, let the defendant know that this was her state of mind, although she saw him every tained by her mother and the defendant by week, until he went into military service, these his parents. In February, 1917, they went weekly meetings being for the purpose of reto live with the defendant's parents, and ceiving the defendant's contribution to the supafter a month's stay were ordered out by the port of his child.” defendant's mother for his failure to pay for their keep. The petitioner went, but her husband continued, and has remained ever since. The defendant is a shiftless, worthless fellow, who refused to set up housekeeping, never in any manner supported his wife, and since the separation has utterly ignored her and their child. He refused support for the child until compelled by the police court. He declared he would not live with his wife. Upon this state of facts, satisfactorily established, the master reported that he was unable to find that there was a willful and obstinate desertion. Upon the point of willfulness he reports:

"The willfulness of the desertion on the part of the defendant is the subject of much of the testimony, and the facts so proved would indeed establish willfulness if the defendant had in fact left the petitioner. I cannot, however,

I know of no rule requiring a deserted wife to approach her husband to have her marital rights restored-in this case to inaugurate them. The shoe is on the other foot. That is a duty imposed by law upon the husband. Bowlby v. Bowlby, 25 N. J. Eq. 406. The testimony shows clearly that the petitioner was at all times receptive and ready to rejoin her husband had he made reasonable overtures. That this deserted wife did not complain, was passive, even content in the separation, does not indicate that the desertion was not obstinate, against her will. In the unfortunate circumstances in which she found herself, she had no choice but to patiently submit to the inevitable situation brought about her by her husband. What else could she do? The defendant's conduct is even more reprehensible than was that of the de