etc., and another. Case certified from su- 1 personal, and mixed, that which I now possess perior court under Gen. Laws 1909, c. 298, § 4. Case remitted to superior court for judgment for plaintiffs.

The rule that in the construction of a will the intention of the testator must govern where that intention can be legally carried out has been so often stated that no authority therefor need be cited.

[1] An examination of the provisions of Mary Donnelly's will indicates clearly that her intention was to give her husband, John Donnelly, an estate for life in all of her property, real and personal, remaining after the payment of her debts and funeral expenses, "for his sole use and benefit"; that, as to her real estate (with the exception of a certain piece of real estate), she gave him power to use or dispose of all or any part thereof during his lifetime; that she intend

Mooy, Henry L. Mooy, and Mary A. Chace | (formerly Mary Mooy), the last three being children of said Margaret Mooy. That, at the time of her death, Mary Donnelly was seised of the premises in question. That by the second paragraph of her will she devised and bequeathed the rest and residue of her estate, real, personal, and mixed, to her husband, John Donnelly, "for his sole use and benefit during the term of his natural life, and upon the death of my said husband John Donnelly I direct that that which there is remaining in possession of said John Donnelly be divided as follows: To Peter John Galligan the house and lot now designated as No. 81 Pleasant View avenue, Providence, Rhode Island; to Mrs. Annie Galligan Com-ed that he might, if he had need, completely mit, my niece, the sum of $100 (one hundred exhaust the same during his lifetime; but dollars); to Daniel Lyons, my cousin, the sum that she also clearly intended, in the event of $100 (one hundred dollars); to Roman that her husband failed, during his lifetime, Catholic Church of St. Brendan's, East Prov- to use or dispose of all of her real estate, idence, the sum of $100 (one hundred dollars). that her daughter, Margaret Mooy, and her The rest and residue, real, personal, or mixed, three grandchildren, Willimena, Henry, and I direct that it be divided as follows: One | Mary Mooy, should each receive a portion half to Mrs. Margaret Moy, and one half of all that remained in his possession at the equally between the children of said Mar- | time of his death, because she provides, "and garet Moy, namely, Mary Moy, Willimena upon the death of my said husband, John and Henry Moy."

The will then nominates and appoints the testatrix's said daughter, Margaret Mooy, executrix after the death of said John Donnelly and concludes as follows:

"While having left my estate to my husband, John Donnelly, during his lifetime, it is my will that he be not restricted in any manner from using or disposing of all or any part of my real estate, except the estate No. 81 Pleasant View avenue, Providence, R. I., nor all or any part of my personal property whether deposited in any bank or banks or otherwise invested."

That John Donnelly died testate February 27, 1913, possessed of the premises in question, never having disposed of them during his lifetime. That by his will, he devised the premises in question as follows:

"I give and devise unto said John Gallagher one two-tenement house now owned by me and situate at the corner of Pacific avenue and Balch street, in said city of Providence, to him his heirs and assigns forever."

That thereafter the defendant Gallagher entered into possession of said premises, and is now in possession, claiming the same under said clause of said will of said John Donnelly, while the plaintiff's claim that, upon the death of said John Donnelly, the title to said premises passed to them in fee simple, as tenants in common under the will of said Mary Donnelly.

|

Donnelly, I direct that that which there is remaining in possession of said John Donnelly be divided” among certain persons mentioned, who are the plaintiffs in this action. The real estate in question was a portion of Mary Donnelly's estate that remained after the payment of her debts and funeral expenses, and so passed to John Donnelly under Mary Donnelly's will, and was used and enjoyed by him during his natural life; it was never disposed of by him during his life, and upon his death it remained "in possession of said John Donnelly."

The testatrix's will exactly fits this situation, for it says, "I direct that that which there is remaining in possession of said John Donnelly be divided as follows," and then makes a devise to the defendant Gallagher, three separate bequests of $100 each, and gives the rest and residue to these plaintiffs, one-half to Margaret Mooy, and one-sixth each to Willimena Mooy, Henry Mooy, and Mary (Mooy) Chace.

It is claimed on behalf of the plaintiffs, and is not disputed by defendants, that the estate given to John Donnelly by the will of Mary Donnelly was not an estate in fee, but a life estate with power of disposition.

Cases of this kind-viz., a devise of a life estate with an absolute power of disposition The questions arising under the facts are and a remainder over-have been passed upas follows: (1) Was the estate given to John on by courts in many jurisdictions. The Donnelly by the will of Mary Donnelly an great weight of authority is to the effect absolute estate in fee so that the limitations that a life estate is not changed to a fee by over were void? (2) Was such estate a life the added power of disposal in the life tenestate only, with a power of disposition? ant, but that the estate given the taker is a (3) If the second question is answered in the life estate with an added power of disposal. affirmative, could John Donnelly exercise | The life estate is regarded as property; the such power of disposition by will, or was his power of disposal as a mere authority which exercise of such power limited to a convey- the tenant for life may use or not, as he

In arriving at this conclusion, courts have recognized the rule that the intention of the testator must be upheld if possible. They have said that there is no way of doing this except by holding that a life estate is given with power in the life tenant to cut off the remaindermen, and that such a construction gives life to the whole instrument. On the other hand, they have said that, if a fee is held to pass because of the added power of disposition, the intention of the testator is upset by the application of an arbitrary rule of law. See note to Steiff v. Seibert et al., 128 Iowa, 746, 105 N. W. 328, 6 L. R. A. (N. S.) 1186.

This point was decided in the case of R. I. Hospital Trust Co. v. Commercial National Bank, 14 R. I. 625, affirmed in Tilton, Petr., 21 R. I. 426, 44 Atl. 223, and is admitted by the defendant to be the settled law of this state, in accord with the great weight of authority. See, also, Phillips v. Wood, 16 R. I. 274, 278, 15 Atl. 88.

It follows therefore that the limitations over are not void, as being repugnant to the estate in the life tenant.

[2] The only question which is really contested is whether John Donnelly could exercise his power of disposition by will, or was such power limited to a conveyance inter vivos.

Mary Donnelly left her estate to her husband for his life for his "sole use and benefit"; hence a devise by him was neither for his use nor benefit. The testatrix apparently intended that her will, and not that of her husband, should control the destination of any of her property remaining in his possession at his death, and in similar cases the courts have so held.

In Garland v. Smith, 164 Mo. 1, on page 15, 64 S. W. 188, on page 190, the court quoted 2 Washburn on Real Property (5th Ed.) vol. 2, 707, with approval as follows:

"When the mode of executing a power comes to be considered, it will be found that, in order to the execution being valid, the law is exceedingly strict in requiring a precise compliance with the direction of the donor as expressed in his deed or will."

And the court adds:

"And particularly is this true as to a pow

er to cut out remaindermen."

In 1 Jarman on Wills (6th Eng. Ed.) p.

791, it is said:

"So a gift to A. for her own absolute use

gave "said part or parts thereof" to certain persons. It was held that the widow took a life estate with an absolute power of disposition exercisable by her during her lifetime, Vice but not by testamentary instrument. Chancellor Hall said, at page 146:

"We have got here a gift for life, and then superadded to the life interest we have the words: To be disposed of as she may think proper for her own use and benefit according to the nature and quality thereof." think that those words confer a power, and do That view reconciles the not give property. whole. The words 'for her natural life' are insensible, unless, as regards property, she was only to take a limited interest. The words 'secondly, in the event of her decease, should there be anything remaining of the said property or any part thereof,' draw a line at the death of the lady, so that what is remaining at the moment of her death becorses at that time the subject of the gift over and belongs to the residuary legatees. Remaining' is consistent with there being a power of disposition other than a testamentary power. When once you arrive at the conclusion that it is power, and not property, which is intended, you can give effect to the limited interest for life. superadding a power of disposition not extending to a testamentary instrument; and this seems to me the true construction of this will."

On appeal this decision was affirmed in Herring v. Barrow, 14 L. R. Ch. D. 263, James, L. J., saying, at page 264:

"If there is one thing clearer than another in the case, it is that the testator intended his own will, and not that of his wife, to be that by which the destination of his property was to be determined. At her decease, should there be anything remaining, the testator gives it over. What remained was what she was in enjoyment of at her death, and why should not the gift have effect?”

See, also, Re Pounder, 56 L. J. Ch. (N. S.) 113; Doe v. Glover, 1 C. B. 448. In Re Pounder, supra, it is said, at page 115:

"The intention was that such of the property as remained in specie at the time of her death should pass not under the wife's will, but under the will and codicil of the testator."

In Ford v. Ticknor, 169 Mass. 276, 47 N. E. 877, a husband who was tenant in common of land with his wife gave her by will his entire estate "to hold to her during her lifetime, with full power to use and dispose of the same as she shall deem right and proper." After her death he gave, devised, and bequeathed "all the remainder of my said estate" to his son, his heirs and assigns forever. The court held that the power of disposal in the wife did not extend to a disposal by will. The court said, at page 281 of 169 Mass., page 879 of 47 N. E., that the "dominant pur

and benefit and disposal,' with a gift over of any part remaining undisposed of' at her death, gives A. a life interest, with a power of dispo-pose is to give the wife a life estate, with sition by act inter vivos, but not by will."

In Re Thomson's Estate, Herring v. Barrow, L. R. 13 Ch. D. 144, a testator, by his will, gave realty and personalty to the widow "for the term of her natural life, to be disposed of as she may think proper for her own use and benefit according to the nature and quality thereof," and, "in the event of her decease, should there be anything remaining

a remainder given by the testator to his son, and the power of disposal is merely incidental to the life estate to make it fully effectual, and so that, if she deems best, her use of it during her life may exhaust the full value of the property. We regard the power in the present case as one only to be exercised during the active enjoyment of the life estate, and in aid of that enjoyment."

*

*

Law, 368, 39 Atl. 679, a husband, by his will,
made the following provision for his wife:
"I order and direct that all my estate, real,
personal, and mixed, shall, during the life of
my beloved wife,
should she survive
me, pass into her hands, and be subject to her
sole management and control, to keep and use,
or sell and dispose of the same as she shall see
fit.
From and after the death of my
wife
all my estate, real, personal,
and mixed, which shall then remain, I order
and direct my executors
to dispose of
as follows,"

*

It was held that the wife's power of disposal must be exercised inter vivos and that so much of the estate as was undisposed of at the wife's death became subject to gift over. The court said, at page 372 of 61 N. J. Law, page 680 of 39 Atl:

"The power of disposal, it seems to me, is one which must be exercised inter vivos. The provision of the husband's will, following the bequest to the wife, 'From and after the death of my wife, all my estate which shall then remain I order and direct my executors to dispose of,' etc., draws the line at the wife's death, so that what is remaining at that time becomes subject to the gift over. The plain intention of the testator is that, if his wife has not disposed of all his estate during her lifetime, if any of it remains in her hands at her death, it shall go to the persons designated in his will.”

three legatees, leaving his wife to dispose of the rest of the estate "as she may deem expedient"; and, if she should make no disposition, then to his heirs at law. It plainly appeared that the testator had made such express bequests as he desired; that he wished and expected his wife to retain the homestead and property for her support during life. They had no children or lineal descendants, and there was no devise over of the remainder to any particular person. The whole argument of the case shows an entirely different state of affairs from what is revealed in the case at bar, and the holding that the wife had power of disposal by will in no way militates against the cases above cited. The case of Burbank v. Sweeney, supra, is expressly distinguished in Ford v. Ticknor, 169 Mass. 276, 280, 47 N. E. 877, above cited.

In the case of Forsythe v. Forsythe, 108 Pa. 129, there was no devise over of any remainder, and it was properly held that the life tenant under general power of disposal In Wead v. had a testamentary power. Gray, 78 Mo. 59, the devise was of an absolute estate in fee, and the limitation over was held void. In Dillon v. Faloon, 158 Pa.

of testamentary disposition, and no devise over. In Cueman v. Broadnax, 37 N. J. Law,

508, there was a trust deed with general power of appointment, and no limitation over. In Fairman v. Beal, 14 Ill. 244, there was a general power, and no devise over. In Kim

In Keniston v. Mayhew, 169 Mass. 166, 47468, 27 Atl. 1082, there was an absolute power N. E. 612, the will of a testatrix gave her sister the remainder of her estate, real and personal, for life, "to be disposed of at her discretion," with remainders over at her decease. Held to create a power of disposal during life, but not by will. See, also, to the same effect, Evans et al. v. Folks et al., 135 Mo. 397, 37 S. W. 126; Terry v. Wiggins, 47 N. Y. 512, 517; Gruenewald v. Neu, 215 Ill. 132, 138, 74 N. E. 101; Small v. Thompson, 92 Me. 539, 43 Atl. 509.

ball v. Sullivan, 113 Mass. 345, the devise was

of a fee, or, if not, then there was a power of testamentary disposal plainly and necessarily implied from the language of the will.

After careful consideration of all the cases upon the briefs and of the language of the whole will, we are clearly of the opinion that John Donnelly had no power of disposition by his will, and that the estate described in the agreed statement of facts passed under the will of Mary Donnelly to the plaintiffs, as claimed by them.

The case is remitted to the superior court, with direction to enter its judgment for the plaintiffs.

GREEN et al. v. WATTS. (Supreme Court of New Jersey. June 3, 1913.) EVIDENCE (§ 441*)-WRITTEN CONTRACT-VA

In view of the above-quoted cases, this court is of the opinion that the power of disposition given to John Donnelly could only be exercised by conveyance during his lifetime, and not by will. We find that it was the plain intention of the testatrix that he should have such life estate in her property "for his sole use and benefit"; and the power of disposition, while broad and general in terms, nevertheless was also intended for his sole use and benefit; and that it was also just as plainly the intention of the testatrix that whatever remained in his possession at his death should be divided between her daughter and daughter's children as above set forth; and that this latter provision limits the power of disposition so as to shut out disposiWhere defendant signed an order and aption by will, as in the cases above cited. No lation of a soda water fountain, requesting proved a plan for the construction and instalcases are cited on behalf of defendant which in plaintiff to deliver the "following described soda any way tend to disturb our conclusions above water apparatus and appurtenances," after set forth. The case of Burbank v. Sweeney, 161 which followed a technical description of the Mass. 490, 37 N. E. 669 (upon which defend- superstructure, with a note that, if it was for counter service, then there should be additional ant strongly relies), is very different in many details, which appeared in the order under the of its aspects. There the testator, after giv- title "counter service details," including a cooling all his estate to his wife for life, dealt er box and no coolers, etc., the contract was complete, and parol evidence was admissible with the remainder after her death by mak- to show that it had been previously agreed ing three specific devises and bequests to that coolers should be furnished and that the

RIANCE BY PAROL.

apparatus should be warranted capable of furnishing cool soda.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1719, 1723-1763, 1765–1845, 2030-2047; Dec. Dig. § 441.*]

Appeal from Court of Common Pleas, Monmouth County.

Action by Robert M. Green and others against Eustace G. Watts. Judgment for plaintiffs, and defendant appeals. Affirmed. Argued at February term, 1913, before the CHIEF JUSTICE and BERGEN and KALISCH, JJ.

fendant argues that the contract was incomplete, and therefore he was entitled to show that on its face it does not contain the whole agreement between the parties, and that he was entitled to offer oral testimony to show what was required to complete the oral agreement, and relies upon Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380, as supporting his contention.

We are unable to discover from this record

in what particular the contract is incomplete. The defendant may have expected more, and he may during the negotiations have con

Harry Truax, for appellant. John W. Slo- tracted for more, but, when the contract was cum, for appellees.

PER CURIAM. This suit was brought to recover the balance due on a soda water fountain sold by the plaintiff to the defendant under a written agreement. The case was tried before the court, the jury being waived, and the court found that the defendant purchased the fountain, that it was installed in his place of business, that $530 was paid on account, that the plaintiffs made an allowance of $41.50, leaving a balance of $563.50, that the orders signed by the defendant, together with the plan and letter of acceptance, constitute a complete contract which bound the defendant, and that no oral testimony could be admitted as to the capacity and installation of coolers, and thereupon gave judgment against the defendant for the amount due.

put in writing, that expressed the result of the negotiations. What the defendant claims is that there was an oral agreement not stated in the contract regarding the acceptance of the coolers to be furnished, and that there was another agreement that the fountain was to be capable of furnishing cool soda. This latter is, in effect, a guarantee of quality not contained in the contract. To allow proof of this character would open a very wide door, and it certainly had a tendency to vary the contract.

We think the trial judge disposed of this case properly, and the judgment should be affirmed.

(86 N. J. L. 90)

POOLE v. LAWRENCE et al. (Supreme Court of New Jersey. May 19, 1914.) (Syllabus by the Court.)

The defendant appeals, and the grounds stated are that the defendant offered to 1. MUNICIPAL CORPORATIONS (§ 159*)—OFFIprove by plaintiff's agent and by the de- CERS RECALL-DUTY OF CLERK. fendant that coolers were to be installed in The duty of the clerk of a municipality the cooler boxes, which coolers were to be of Walsh Act (P. L. 1913, p. 836), concerning the governed by the statute commonly called the a given capacity made known to the plain-filing of a petition for the recall of an elective tiff's manager and draftsman in Philadel-officer, is to ascertain whether or not the petiphia at the time the contract was drawn. Defendant also offered testimony for the purpose of showing that there was to be installed a soda water apparatus capable of furnishing cool soda. Both offers were refused by the trial court, which ruling is the basis of this appeal.

tion is signed "by the requisite number of qualified electors," and to make a certificate showing the result of such ascertainment; but he has no power to determine the legal qualifications of the officer sought to be recalled, nor the question whether he has actually held his office for one year.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 350 356; Dec. Dig. § 159.*]

2. MUNICIPAL CORPORATIONS (§ 159*)-OFFI

CERS-RECALL-TERM OF OFFICE.

The contract between the parties was in writing; that is, defendant signed an order and approved the plan, and the order was accepted by the plaintiff. The order was di- When such an officer resigns, and is immerected to the plaintiff, and requested the de-diately reappointed, such action does not vest livery of the "following described soda water apparatus and appurtenances,” and then follows a somewhat technical description of the superstructure, with a note that, if it was for counter service, then there were to be additional details. These details appear in the order under the title "counter service de tails," in which this appears:

"One cooler box no coolers with milk pump and 1-3 gal. ean in center surrounded by four crushed fruit jars as per plan."

him with a new term of office; but, in deciding whether he has held office for more than one year, his service prior to such resignation and re-election is to be taken as a part of his service in determining whether he has actually held his office for at least one year.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 350-356; Dec. Dig. § 159.*]

Mandamus by Joseph A. Poole against
On rule to
Robert L. Lawrence and others.
show cause. Rule made absolute, and per-

It does not appear to be denied that the emptory mandamus allowed. plaintiff furnished all that he was required||

Argued February term, 1914, before SWAY

to do according to the writing, but the de- ZE and BERGEN, JJ.