(115 A.)

and by said clause disposed of a blended mass three-twelfths part of such portion to Fanny R. of real and personal property, and it plainly Brewer, and the remaining three-twelfths part appearing that she did not intend to die intes- of such portion to Helen Blackmar. tate, and it being determined that the language "Fifth. I give a fourth part of another of "lapsed legacies" refers to the personal prop- such portions to John C. Sharp, a fourth part erty included in the legacy of residue which to Arthur R. Sharp, a fourth part to Helen lapsed as well as other lapsed legacies, and it Sharp, and the remaining fourth part of such plainly appearing that the testatrix did not in- portion, thus including any additions thereto tend to differentiate between real and personal which may result from the provisions of this property in its disposition, held, that the word will, I give, devise and bequeath unto my ex"legacy" included all lapsed legacies and de- ecutor hereinafter mentioned to hold in trust vises. and pay over the net income thereof to Marie Francoer Brewster during her lifetime, and at her death or if she die before me, then at my death to pay the principal to her children if any, or if she die leaving no issue, then fourth part of said portion to John C. Sharp, I direct my executor to pay the said remaining Arthur R. Sharp and Helen Sharp, share and share alike, and their shares, if they be then dead, shall go to their children or issue surviving, or if none, then to the survivors or children of those dying leaving issue.

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

Bill by William B. Aitken, as executor of Amy Edwards, deceased, for whom were substituted Frank Brewster and Robert D. Brewer, administrators c. t. a., against Arthur B. Sharp, as executor, and others, to construe the will. Will construed.

Vredenburgh, Wall & Carey, of Jersey City, and David B. Simpson, of New York City, for complainants.

McCarter & English, of Newark, for Marie F. Brewster and Laura L. Sayles.

Peter Hofstra, of Paterson, and A. T. Sieker, of New York City, for Mary Ostrander. Coult & Smith, of Newark, and A. Leslie Harwood, Jr., and L. D. Jennings, both of Boston, Mass., for J. W. Brewer, Helen F. Brewer, Millard Sayles Brewer, Fannie R. Brewer, and Augusta Brewer.

"Sixth. I give each of the two remaining fourth portions to my executor hereinafter mentioned, to be held by him in trust, to pay over the net income of one of such portions to Henry Sayles during his lifetime, and to pay over the net income of the other portion to Laura Larned Sayles during her lifetime, and upon the death of either, such one portion, and upon the death of both, the two portions thus shall be paid to them to whom I have directed including accumulations and unpaid income, the first and second portions to be given, or to such as may then be entitled to receive the same in accordance with the provisions hereof

Thomas F. McCran, Atty. Gen., for State respecting said portions. Comptroller.

"Lastly. I hereby nominate, constitute and appoint as the executor of this my last will and GRIFFIN, V. C. The bill in this case is testament, William B. Aitken, or New York filed for the construction of the will of City, hereby giving him full power to make sale Amy Edwards, who died a resident of Eliza-public or private sale and to make sale of any of any real estate whereof I may die seized, at beth, N. J., on June 12, 1918, leaving a last personal property, and upon such terms and at will and testament dated December 31, 1912. such times as he may think best, and it. is my In the first paragraph of her will she di- will that my said executor shall not be required rects the payment of all her just debts and to give bonds for the faithful performance of funeral expenses. In the second paragraph the duties herein imposed on him. It is my she gives certain general and specific lega- wish that no sale of property be held upon the cies, one of which requires consideration. It homestead premises in the city of Elizabeth, New Jersey."

is as follows:

"I also give and bequeath to said Mary Morris Ostrander and Laura J. Edwards ten Middlesex Water Company bonds, of the par value of one thousand dollars each."

The remaining paragraphs, all of which require interpretation, are as follows:

"Third. All of the rest, residue and remainder of my estate, real and personal, wheresoever situate, thus including lapsed legacies, I wish divided into four equal portions.

"Fourth. I give a one-twelfth part of one of such portions unto John Wilmon Brewer, a one-twelfth part of one of such portions unto Augusta Brewer and a one-twelfth part of one of such portions unto Helen Francis Brewer, the part given to any of the three persons last mentioned dying before me, to go to their issue, if any, and, if none, to the survivor or survivors, and I give a three-twelfths part of such portion to Willard Sayles Brewer and a

[1] 1. The first question of doubt arises on the gift of ten Middlesex Water Company bonds. The testatrix never owned water bonds of that name, but for some years prior to the making of the will and continuously down to the date of her death owned then Piscataway Water Company bonds of the par value of $1,000 each. There is nothing in the language of the will which indicated her intention to bequeath bonds which she then owned, but, on the contrary, she gave such bonds generally. Such language makes the legacy general, and not specific. U. S. Fidelity & Guaranty Co., 90 N. J. Eq. 254, 106 Atl. 364; Blair v. Scribner, 67 N. J. Eq. 583, 60 Atl. 211; Mecum v. Stoughton, 81 N. J. Eq. 319, 86 Atl. 52.

In re

[2] 2. The next question to be considered is whether the gifts and devises in the fourth,

fifth, and sixth paragraphs are to a class. The cases generally state the rule to be that, where an aggregate fund is given to several persons nominatim, to be divided between them in equal shares, if one dies before the testator, his shares lapse; the gift being to them as individuals, and not as a class. Clark v. Morehous, 74 N. J. Eq. 658, 70 Atl. 307. In this latter case Vice Chancellor Howell cites with approval the opinion of Judge O'Brien in Re Russell, 168 N. Y. 169, 61 N. E. 166, who said:

third paragraph "thus including lapsed legacies," the share of Helen Blackmar would not pass as residue, but would be distributable among the next of kin and heirs at law Notwithstanding this language, which evidences an intention that all legacies which might lapse or fail, including those in the residue, should form part of her residue, and be distributed accordingly, yet in Humble v. Shore, supra, a contrary result was reached. In that case the testatrix, by her codicil, directed that her trustees should stand pos

"A gift to a class has been defined by a re-sessed of certain property upon certain cent decision of this court to be a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or some other definite proportions, the share of each being dependent for its amount upon the actual number."

But it is urged that the evidence offered without objection indicates that the testatrix made division of her residue among four classes of her relatives, who were first and second cousins, viz. in the fourth paragraph provision is made for the Brewer branch, in the fifth paragraph for the Sharp branch, and in the sixth paragraph for two branches of the Sayles family, and in her division she gave the equivalent of one-fourth of onefourth (or one-sixteenth) to the first cousins, and one-twelfth of one-fourth (or 1/48) to the second cousins, and from this it is argued that by separating her relatives in this manner she intended to constitute them as classes and give to them as such. This, however, is not sufficient to justify a finding that the testatrix gave to the persons mentioned in each paragraph as a class. Dildine v. Dil

dine, 32 N. J. Eq. 78.

My conclusion therefore is that the parties mentioned in the fourth, fifth, and sixth paragraphs did not take as classes, and therefore the share of Helen Blackmar did not pass to the remaining persons in the fourth paragraph.

[3, 4] 3. 4. Helen Blackmar, mentioned in fourth paragraph, died in the lifetime of the testatrix. The question presented is: What disposition should be made of her share?

trusts, and that the same ultimately should sink into the residue of her estate and be disposed of accordingly. Vice Chancellor Wigram held that such language was not sufficient to continue this residue in the residue, but that it went to the next of kin and heirs at law. This case was followed in a number of other English cases, with the judges, however, protesting against its sense and avoiding its effect wherever possible, until 1893, when in Re Palmer (Palmer v. Answorth) 3 Ch. Div. 369, it was overruled, Lindley, L. J., saying:

"But when a testator revokes a gift of a share of the residue, alters the gift, and, subject to that alteration, directs that the share fall again into his residue, he does not mean that such share shall be treated as ultimately out of the residue, but as ultimately in it, and to go as part of it to those to whom he leaves

it."

Lopes, L. J., in the same case, speaking of Humble v. Shore, said:

of the decision or the reasoning by which it was "It is difficult to understand the principle arrived at."

And, after giving several illustrations, he said:

"A more obvious and palpable attempt to defeat the intention of the testator it would be difficult to imagine."

In Re Allan (Dow v. Cassaigne) 1 Ch. D. 276 (1903), where the residuary estate was divided into four shares, one of such shares to be held for the use, etc., of each daughIt is contended on the part of certain leg-ter, with a proviso that, “if one or more of atees that, as the legacy and devise is con- my said daughters dies without leaving istained in the residue, on the death of the sue," etc., "the share or shares of my said beneficiary her share passed, the personalty to the next of kin, and the real estate to the heirs at law; the opposite contention being, in effect, that on her death it continued in the residue by reason of the language, contained in the third paragraph, "thus including lapsed legacies."

The rule of law is that a general residuary bequest does not include any part of the residue itself, which fails (Ward v. Dodd, 41 N. J. Eq. 414, 5 Atl. 650; Hawkins on Wills, p. 42; Garthwaite's Ex'rs v. Lewis, 25 N. J. Eq. 351; Humble v. Shore, 7 Hare,

daughter or daughters so dying shall fall into and become part of my residuary estate and be held and distributed upon the same trusts as are herein before declared thereof," the court below followed Humble v. Shore and held that there was an intestacy. Vaughn Williams, L. J., held that the judgment could not be sustained, and, following In re Palmer, held that the lapsed legacies were divisible between the residuary legatees. See, also, In re Whiting, [1913] 2 L. R. Ch. D. 1, to the same effect.

I think it is therefore quite clear that, un

(115 A.)

upon the death of Helen Blackmar, the lega- paragraph mentioned. I think this intercy would continue in the residue and be dis-pretation is too narrow. She does not say tributed as such. While in the early Eng-that these words are applicable to the legalish cases the courts proclaimed the duty of cies theretofore given, but refers to legacies the judge to be, to ascertain the intent of generally, and this language is broad enough the testator and then give it effect, yet, into include all the legacies given in her will. their tenderness for the heir at law, leaned My conclusion, therefore, is that upon the very strongly to defeat this purpose and cre- death of Helen Blackmar the legacies so givate intestacy; and Mr. Justice Mitchell, in en to her, continued in the residue to be disRe Gray's Estate, 147 Pa. 67-74, 23 Atl. 205,tributed in accordance with the fourth, fifth, 206, gives the plain reason for this rule or and sixth paragraphs of the will. purpose where he says:

"The rule is in fact a concession to the set policy of English law, nowhere more severely asserted than in chancery, to keep the devolution of property in the regular channels, to the heir and next of kin, whenever it can be done."

In considering this case, therefore, if the doctrine of Humble v. Shore has not received the approval of our courts in such manner as to be binding on this court, it is its duty to adopt such rule in the construction of this will as will be in accord with reason and

common sense. Humble v. Shore was cited

by Chancellor Runyon in Garthwaite's Ex'rs v. Lewis, supra, and by Vice Chancellor Van Fleet in Burnet v. Burnet, 30 N. J. Eq. 595, but for the purpose only of stating the general rule. The cases had not to deal with a will where the testator provided that a legacy in the residue which lapsed should

sink into the residue. And in Ward v. Dodd, supra, the saine rule was announced, citing Garthwaite's Ex'rs v. Lewis as well as Hawkins on Wills, p. 42. Hawkins on Wills is also cited in the Garthwaite Case, but by referring to the citation to support the text in Hawkins reliance is placed on the English cases of Humble v. Shore and others which

were thereafter overruled in Re Allan and in Re Palmer, supra.

[5] 5. Having determined that the share of Helen Blackmar continues as part of the residue for distribution among the parties mentioned in the fourth, fifth, and sixth paragraphs, the next question of doubt is: How should the distribution be made of the personal property?

Her scheme of division was in fortyeighths-1/48 being to second cousins, and 8/48 to the first cousins. On the death of Helen Blackmar, taking the precise shares given by the will, the remaining shares amount to 45/48. The question is whether the distribution should be made on the basis of giving to them 45/48 (which would result in an intestacy as to a part) or reduce the shares to forty-fifths and give to the parties the whole residue in the several proportions this is Evans v. Field, 8 L. J. Ch. 264, where given by the testatrix. A case quite similar to sonal estate, "and also all such and so much testatrix bequeathed the residue of her perof my personal estate the trusts, bequests and dispositions whereof in the will contained shall fail or become incapable of being performed" in eleven equal parts among differ

ent persons. A legacy of one-eleventh part lapsed. It was held that the lapsed legacy fell into the residue, which became divisible into ten parts amongst the remaining residWand, [1901] 1 Ch. D. 391, and In re Allan, uary legatees. To the like effect is In re supra.

My conclusion, therefore, is that by the death of Helen Blackmar the personal estate contained in the residue should be divided into forty-fifths, and that the first cousins should receive 8/45 and the second cousins

Neither the industry of counsel nor my own examination have discovered any case in this state which decides that, where a tes. tator, either by express words or plain implication, provides that gifts of the residue shall not lapse, but shall sink into or continue therein, the testator shall be regarded as dying intestate as to such gifts. I feel, therefore, at liberty to give effect to the in-/45 each respectively. tent of the testator regardless of the earlier [6] The sixth question is: Are the remainEnglish decisions above referred to. Taking ders mentioned in the sixth paragraph dethe entire will into consideration, it is quite vised to the parties mentioned in the fourth plain that the testatrix did not intend to die and fifth paragraphs vested or contingent? intestate as to any portion of her property. The distinction between a vested and a She anticipated that some of her beneficia-contingent remainder is that the former is ries might die in her lifetime, and made pro- so limited to a person in being and ascervision for such event, and therefore in the third paragraph she not only gave to her residuary devisees and legatees all the rest, residue, and remainder of her estate, both real and personal, in certain proportions, but she expressly provided that such residue should include lapsed legacies. It is argued that this language is applicable only to the general and specific legacies in the second

tained that it is capable of taking effect in possession or enjoyment on a certain determination of the particular estate without requiring the concurrence of any collateral contingency. The uncertainty as to the remainderman ever enjoying the estate, which is limited to him by way of remainder, will not render such remainder a contingent one, providing he has, by such limitation, a pres

(115 A.)

ferred from the superior court on the exception. Case discharged.

doing violence to her plain intent. This is Action by Israel C. Richardson against the unlike a case where a situation not contem- Empire Cream Separator Company to recovplated by the testator arose, and no provision er a commission for the sale of a milking mawas made to meet it, as in Shreve v. Shreve, chine. Verdict directed for plaintiff after 17 N. J. Eq. 487. Here the testatrix antic each party had moved for a directed verdict ipated the situation, and made provision to in his favor subject to defendant's exception meet it, but in doing so used an inapt word on plaintiff's agreement that, if the defendto express the purpose. In my view, this ant's exception were sustained, there should should not be regarded as sufficient to debe judgment for the defendant. Case transfeat the plain will of the testatrix. My con clusion therefore is that the words "thus including lapsed legacies" in the residuary clause cover both real and personal property. The interest of the Attorney General in this suit is to have it settled upon what principle the collateral inheritance tax should be assessed. Having determined whether the remainders are vested or contingent, I presume the amount of the tax can be automat-tained only the common counts in assumpsit, ically assessed without the further order of but the case was tried upon the theory that the court. If, however, I am in error as to the plaintiff was the defendant's agent, and this, counsel, at the time of the signing of under a contract with the defendant, either the decree, may present their views. expressed or implied, had performed services for which he should be recompensed.

(80 N. H. 278)

Harry M. Morse, of Littleton, and George
W. Pike, of Lisbon, for plaintiff.
Drew, Shurtleff, Morris & Oakes and Eri C.

Oakes, all of Lancaster, for defendant.

PLUMMER, J.

The plaintiff's writ con

The specific claim of the plaintiff is that he was the agent of the defendant for selling

RICHARDSON v. EMPIRE CREAM SEPA- milking machines, and that, acting as such,

RATOR CO. (No. 1771.)

(Supreme Court of New Hampshire. Grafton. Jan. 3, 1922.)

1. Trial 139(1)-Verdict can be directed for plaintiff only if his case is conclusively established.

To sustain a directed verdict for plaintiff, the evidence must conclusively establish his claim, and, if there is any substantial evidence upon which the jury could find for defendant, the exception to the directed verdict must be sustained.

2. Principal and agent 89(9) Whether plaintiff was yet defendant's agent held for jury.

Where the evidence was conflicting as to whether plaintiff had previously sold defendant's machine as agent on commission or as a dealer, and there was testimony for defendant that, whatever its relationship with plaintiff, that relationship had been terminated before the sale in controversy, a verdict could have been rendered for defendant in an action for commission on a sale by another agent to a customer located by plaintiff so that a directed verdict for plaintiff cannot be sustained.

he sold a machine, and is entitled to a commission for making the sale.

[1] The exception of the defendant to the refusal of the court to grant its motion for a directed verdict has not been discussed by it in brief or oral argument, and therefore has not been considered. In order to sustain the ruling of the court granting the plaintiff's motion for a directed verdict, the evidence must conclusively establish the plaintiff's claim; in other words, if there is any substantial evidence in the case upon which the jury could find a verdict for the defendant, then its exception to the direction of a verdict for the plaintiff must be sustained.

[2] In 1917 and 1918 the plaintiff sold two milking machines. It is contended by him that in making the sales he was acting as the agent of the defendant, and received a commission therefor.

The defendant claims that the plaintiff simply purchased the machines and obtained his recompense for making sales by being allowed a dealer's discount; that the plaintiff was a dealer, and not an agent. Whatever 3. Appeal and error 860-Whether party the business relations of the parties were durshould be relieved from agreement as to judging these years, it can be found upon the dement if exception were sustained is for the fendant's evidence that they were terminated trial court.

Whether plaintiff should be relieved from his agreement that judgment should be rendered for the defendant if defendant's exception to the directed verdict for plaintiff were sustained is for the trial court to determine, and not the Supreme Court, hearing case on exceptions.

the 1st of January, 1919, and that thereafter the plaintiff was not the agent of the defendant in any sense. The defendant appointed an agent for Littleton and vicinity in June, 1919, and in the following December a sale of a milking machine was made. The plaintiff maintains that as an agent of the de

Exceptions from Superior Court, Grafton fendant he made the sale, and is entitled to County; Sawyer, Judge.

a commission. It is conceded that he located