not thus confined. Indeed, it may well be asked why, admitting that the intention can be discovered to pass all, the intention should not prevail in the one case as well as in the other. What rule of law or construction would be thereby violated?

The will must be construed with reference to the condition of testator's estate at the time of his death.

Wigram, Wills,

103; O'Hara, Wills, §7; Gold v. Judson, 21 Conn. 616. It is immaterial whether or not Mr. Rice at the time when he made his will knew of the existence of the power of the appointment.

The will speaks the testator's wishes and intentions at the time of his death. Whatever the language required to execute the power, if the will contains it the power is executed, and the relative dates of the creation of the power and the execution of the will are wholly immaterial.

Boyes v. Cook, L. R. 14 Ch. Div. 53; Redf. Wills, § 30, fol. 14, p. 387; 1 Jarman, Wills, *676, Bigelow's note; Stillman v. Weedon, 16 Sim. 26; Livingston v. Gordon, 84 N. Y. 136. The question, What constitutes a sufficient execution of a power of appointment? is an open one in Rhode Island, and in this case the court is free to announce which rule is the law of this state.

See Phillips v. Brown, 6 New Eng. Rep. 710, 16 R. I. 279.

question did not arise until Amory v. Meredith, 7 Allen, 397, and the court, in an elaborate opinion, refused outright to acknowledge the doctrine of the English cases to be the law of Massachusetts, and since that time in a most interesting series of decisions, has without any assistance from the Legislature, firmly established the law of Massachusetts on the subject of powers to be as liberal as that of England or New York to day.

In Connecticut alone it has happened that there having been an early case, in which, as the court said in a later one, "the rule was enforced without protest," and which the court, when in the later case the question came up for discussion reluctantly felt itself bound to follow, the Legislature has so far neglected to interpose its relief.

And even in this case (Hollister v. Shaw, 46 Conn. 248), the decision to adhere to the earlier one was by three judges only of the five, the other two dissenting.

The following are some of the authorities which are relied upon to substantiate the foregoing statements:

1 Vict. chap. 26, § 27; Boyes v. Cook, L. R. 14 Ch. Div. 53; Re Comber, 11 Jur. N. S. 969; Re Mason's Will, Id. 835; Earle v. Barker, 11 H. L. Cas. 280; Wilkinson's Trust, L. R. 8 Eq. 487, L. R. 4 Ch. App. 587; Hawthorn v. Shedden, 3 Sm. & G. 293; Stillman v. Weedon, 16 Sim. 26; 1 N. Y. Rev. Stat. 731, 126; White v. Hicks, 33 N. Y. 383; Hutton v. Benkard, 92 N. Y. 295; Mott v. Ackerman, Id. 539; Van Wert v. Benedict, 1 Bradf. 114; Hawkins, Wills, 2d ed. p. 27, Sword's note; Aubert's Appeal, 1 Cent. Rep. 105; 1 Jarman, Wills, p. 676, Bigelow's note; 1 Redf. Wills, & 21, pl. 32, p. 271; Schouler, Wills, § 526; Willard v. Ware, 10 Allen, 263; Sewall v. Wilmer, 132 Mass. 131; Cumston v. Bartlett, 149 Mass. 243; Funk v. Eggleston, 92 Ill. 515, 34 Am. Rep. 136; Andrews v. Brumfield, 32 Miss. 108; Bredell v. Collier, 40 Mo. 287.

The court is enabled therefore, in announc§ ing the rule to be followed here, to range itself on what is now on all hands admitted to be both the right and the victorious side in one of the most interesting struggles known to the law.

At a time subsequent to the American Revolution, prior to which time the law had been much more liberal, there were made in the English chancery courts a series of decisions which resulted in establishing for the first time the rule that a will was a good execution of a power only when the power or the subject of the power was referred to in explicit terms.

In 1837 an Act of parliament declared that a general residuary devise should, in the absence of anything to indicate a contrary intention, be held to have been intended to execute a power of appointment as well as to dispose of what alone was technically the testator's own property. The Act has been since followed with the utmost liberality of construction.

Boyes v. Cook, L. R. A. 14 Ch. Div. 52; Cofield v. Pollard, 3 Jur. N. S. 1203; Patch v. Shore, 2 Drew. & S. 589; Hodsdon v. Dancer, 16 Week. Rep. 1101.

In most of the states in which the courts declared themselves irremediably committed to the early English rule, the Legislatures came to their relief with statutes similar to the Act of parliament (1 Vict. chap. 26, § 27) already referred to.

It was in Massachusetts that the most interesting and successful struggle against the English doctrine took place.

Judge Story, sitting in the federal courts, had in the oft-cited case of Blagge v. Miles, 1 Story, 426, been disposed to bow to the weight of the English decisions.

In the Massachusetts courts, however, the

It must be by the law of New York, the testator's domicil, that his will must be construed to determine what was his intention in regard to the execution of the power.

1 Jarman, Wills, 5th Am. ed. p. 2, Bigelow's note; 2 Greenl. Ev. § 671; Lapham v. Olney, 5 R. I. 415; Enohin v. Wylie, 10 H. L. Cas. 1; Ford v. Ford, 70 Wis. 19.

The execution of a power of appointment which is sufficient according to the law of the testator's domicil is sufficient everywhere.

D'Huart v. Harkness, 11 Jur. N. S. 633; Re Alerander, 6 Jur. N. S. 354; Ela v. Edwards, 16 Gray, 92; 1 Redf. Wills, § 30a, pl. 25, *411; Story, Confl. L. 9th ed. p. 655, § 473, note a.

Messrs. Francis B. Peckham, Middleton S. Burrill, John E. Burrill and George Zabriskie for respondents, heirs of Mrs. Bourne.

Stiness, J., delivered the opinion of the court:

The complainant, trustee under the will of Mary M. Bourne, late of Newport, deceased, brings this bill, practically a bill for instructions, for the distribution of the trust fund, and the case is submitted on bill, answer, and proofs. The will was dated September 30,

of its disposition must be determined by Rhode Island law. The question is not what intent is to be imputed to the will of Mr. Rice, but what intent is to be imputed to the will of Mrs. Bourne. She authorized a disposition of her property by an appointment, and it is under her will that the question arises whether an appointment has been made. Her will is to be adjudged by the law of her domicil. So far as assumptions of intent may be made, it is to be presumed she intended the appointment to be made according to the law of her domicil, and not by the law of New York or England, or any other place where the donee of the power might happen to live. It is not the fact of Mrs. Bourne's ownership of the property, which points to the law of this state as the criterion, but the fact that her will is the controlling instrument in the disposition of the property. Precisely this question arose in Sewall v. Wilmer, 132 Mass. 131, where Judge Gray remarked that the question is singularly free of direct authority. In that case a Massachusetts testator gave to his daughter a power of appointment of certain property. The daughter lived in Maryland, where she died leaving a will devising all her property to her husband, but making no mention of the power. In Massachusetts this was an execution of the power, but in Maryland it was not; and the question arose, which law should govern? It was held that the will of the father was the controlling in

1879, and admitted to probate in Newport, lows, naturally and necessarily, that the fact January 16, 1882. The testatrix bequeathed one sixth of her residuary estate to the complainant in trust for the benefit of her grandBon Charles Allen Thorndike Rice during his life, and upon his decease to transfer and pay over the same to his issue, if he should leave any, as he should appoint "by will, or instrument in the nature thereof, executed in the presence of three or more witnesses; and, if he leaves no issue, to and among such persons, and upon such uses and trusts, as he shall so appoint;" and, in default of such appointment and issue, to and among those who should then be heirs-at-law. The grandson died in New York, May 16, 1889, without issue, leaving a will executed in England, September 17, 1881, which was duly probated in New York, where he was domiciled at his death. The will did not specifically dispose of the trust fund, which was subject to Mr. Rice's appointment, nor make any mention of it. The complainant is both trustee under the will of Mrs. Bourne and executor of the will of Mr. Rice. In the latter capacity he claims the right to receive and distribute the fund, as one which passes by appointment to the legatees under Rice's will. On the other hand, the heirs of Mrs. Bourne contend that there is a default of appointment, and so, under her will, the fund goes to them. The issue now raised, therefore, is whether there has been an execution of the power by the general residuary clause of Mr. Rice's will. Upon this issue our first inquiry must be by what law the execu-strument, and hence that the law of his domition of the power is to be determined. It is admitted that both in England, where the will was executed, and in New York, where the donee of the power was domiciled, there are statutory provisions to the effect that a general devise or bequest will include the property over which the testator has power of appointment, and will operate as an execution of such power, unless an intention not to execute the power shall appear by the will. If, therefore, the question is to be determined either by the law of England or New York, the power has been executed. Clearly, the mere accident that Mr. Rice's will was executed in England while he was temporarily there awaiting a steamer cannot control its operation by impressing upon it the law of the place where it was made. It was neither the domicil of the testator, nor the situs of the property nor the forum where the question comes for determination. Caulfield v. Sullivan, 85 N. Y. 153. The property in dispute being personal property, which, strictly speaking, has no situs, the question must be decided either by the law of New York, the domicil of the donee of the power, or of this state, the domicil of the donor. The will is a Rhode Island will. It disposes of property belonging to a resident of Rhode Island. The trustee under the will is, in effect, a Rhode Island trustee, and jurisdiction over the trustee and the fund is here. The fund in question belonged to Mrs. Bourne, and never belonged to Mr. Rice. True, he had the income from it for life, and power to dispose of it at death,-practically the dominion of an owner, and yet it was not his.

The fund, then, being a Rhode Island fund, disposable under a Rhode Island will, it fol

cil was to apply. The same decision was made in Bingham's App., 64 Pa. 345, which is cited in Sewall v. Wilmer with approval. In Eng. land, also, it has been held that the validity of the execution of a power is to be determined by the law of the domicil of the donor of the power. Tatnall v. Hankey, 2 Moore, P. C. 342: Re Alexander, 6 Jur. N. S. 354.

The principle on which these cases proceed is that to which we have already alluded, viz., that the appointer is merely the instrument by whom the original testator designates the beneficiary, and the appointee takes under the original will, and not from the donee of the power. The law of the domicil of the original testator is therefore the appropriate test of an execution of a power.

The case of D'Huart v. Harkness, 34 Beav. 324, 328, apparently holds the contrary, but, we think, only apparently. In that case property was held under an English will, with power of appointment, by will, in a woman domiciled in France. She died leaving a bolo graph, which was valid as a will in France, but not in England. Under the Will Act, it was admitted to probate in England, as a foreign will, which gave it all the validity of an English will. The probate in England was held to be conclusive that it was a good will, according to English law; and, being a will, it executed the power. The case was really decided by the law of England. While there are numerous decisions upon the general rule that a will is to be governed by the law of the testator's domicil, such decisions are not to be confounded with the present question,-which testator is the one to be considered in the case of a testamentary power? We know of no

case which applies the law of the domicil of the donee of the power without reference to that of the donor. For these reasons we think the law of the domicil of the donor of the power should control, and hence that the law of Rhode Island must govern in this case.

What is the law of Rhode Island relating to the execution of a power? In Phillips v. Brown, 16 R. I. 279, 6 New Eng. Rep. 710, the general rule of construction, laid down by Kent, both as to deeds and wills, that if an interest and a power coexist in the same person, an act done without reference to the power will be applied to the interest, and not to the power, was examined and followed. The same rule was also followed in Grundy v. Hadfield, 16 R. I. 579, and in Brown v. Phillips, 16 R. I. 612. In Matteson v. Goddard (R. I.) Index, HH. 98, it was held that a general residuary clause in a will did not execute a subsequently created power of appointment. While those cases are not decisive of this one, the reasoning upon which they rest is equally applicable, viz., where nothing appears to show an intent to execute a power the court cannot infer an intent to do so. This was the almost uniform rule prior to the adoption of statutes upon this subject. In New York and in England it was thought that the rule often defeated the intention of testators, who probably intended to dispose of everything they had power to dispose of; and so Acts were passed which carried property over which one had a power of appointment, by a general gift of his own property, unless an intention not to execute the power appeared. We do not see that the reason upon which such statutes are based is conclusive. It is equally open to conjecture that one who means to execute a power will signify in some way an intention to do so. If a computation could be made, it would doubtless appear that in the execution of powers a large majority of wills make proper reference to the power. The statute gives an arbitrary direction, against which, it seems to us, the reason is stronger than for it. The rule already recognized in this state is as applicable to wills as to deeds, and, in our opinion, it should be so applied. The same rule is laid down in Mines v. Gambrill, 71 Md. 30; Hollister v. Shaw, 46 Conn. 248; Funk v. Eggleston, 92 Ill. 515; Bilder back v. Boyce, 14 S. C. 528; and cases cited in our previous opinions.

mended to us by reason and precedent, until, as elsewhere, it shall be changed by legislative authority. If such a rule be the wiser one, the Legislature can enact it; but, outside of a statute, it is hard to see upon what ground a court can decree an intention to execute a power, when in fact no such intention is in any way evinced.

Applying to this case, then, the rule that to support an execution of a power something must appear to show an intent to execute it, we come to the inquiry whether such an intent appears. To solve this, we must look to the will itself, and not to extrinsic facts, except as they enter into and give color to the will. In the will there is no reference to the power, but it is urged that an intention to execute the power is to be inferred from its contents and the circumstances of its execution. It is claimed that Rice's relations with his grand mother were so intimate as to raise a presumption that he knew the contents of her will, especially in view of the fact that his bequests exceeded the amount of his own estate. Rice's will was made at Liverpool, pursuant to a suggestion from the complainant that, owing to the will of his grandmother, he ought not to cross the ocean without making his will. He received $625,000 outright under his grandmother's will, besides the income of one sixth of the residuary for life, with the power of appointment. If he knew of this power, it is most natural that he would in some way have referred to it. If he knew the amount absolutely bequeathed to him, or expected a large bequest, it would account for all the legacies in his will. After he knew of the power of appointment, he did not change his will. Perhaps his mind so dwelt upon the legacy of $625,000 that he gave no thought to a possible appointment of one fifth of that amount in the residuary clause; or perhaps, after hearing of the power, he intended some time to make a disposition of it. But, however it was, he gave no sign as to the power. The fact that at the time of his death his estate was somewhat less than his bequests is not significant; for evidently he was not a close financier, and gave little heed to the depreciation of his estate. The deficiency, however, is not so marked as to raise a presumption in favor of the execution of the power, even if we could properly look to that fact for that purpose. The same rule also prevailed in England, This and several other interesting legal ques New York, and Pennsylvania prior to the pas-tions have been raised and ably presented upon sage of statutes. In Massachusetts alone was the point of intention, but we do not deem it a contrary rule adopted by the court. The necessary to pass upon them, inasmuch as we law, therefore, has been practically uniform, except as it has been changed by statutes. It is urged that these statutes show a tendency of opinion which the court should follow by adopting the rule of the statutes. The opportunity to make law is alluring, but it tempts beyond the judicial path. As our province is to declare law, rather than to make it, we deem it our duty to adhere to the rule which is com16 L. R. A.

do not find from the facts any sufficient or satisfactory evidence of an intention to execute the power. We therefore decide that the fund in question did not pass so by appointment under the will of Mr. Rice, and therefore belongs to the heirs of Mrs. Bourne, according to the terms of her will.

Decree accordingly.

MICHIGAN SUPREME COURT.

APPEAL by complainants from a decree of twenty miles each. We submit that does not

the defendant railway company filed in the office of the secretary of state a paper purporting to be the articles of association of the Ann Arbor & Ypsilanti Street Railway Company, and that said company purposed to run a railroad from Ann Arbor to Ypsi-way company was to be either animal or lanti, upon and along the south side of the public highway between said cities, called the "Ann Arbor & Ypsilanti Road," and that it has graded along the south side of said road from the terminus of said road, in the city of Ypsilanti, to the city limits of the city of Ann Arbor, and is laying the ties and railroad track or iron thereon, excepting a few rods along and in front of premises owned by one John A. Bohnet in the township of Pittsfield, and the premises of the complainants, which lie adjacent to the city of Ann Arbor; that said grading and placing ties, and laying of the iron, is on the south side of said highway nearly the whole distance, except from what is known as the stone school-house to the limits of said city of Ann Arbor, over which last distance it is on the westerly side of said highway; that said grading along the line of said highway comes within three or four feet of the fence on the south and west sides of the same; that said defendant has com pleted the construction of said road, except along the premises of the complainants and said Bohnet, and purposes and intends, when the same is completed, to run trains of cars thereon, drawn by steam-engines, for the purpose of conveying passengers and freight upon and along and over said railway. Complainants show by their bill, and charge, that the defendant, under its articles of association, if the same are valid, has the right to use on said railroad an engine or motor to be operated by steam; that under the said articles, if the same are legal and binding, the said company is not only permitted to carry passengers, but is authorized to use the said road for the transportation of freight and property. The complainant, Theodore S. Nichols, shows and charges in the bill that one William Campbell, claiming to act for the defendant or some other corporation, applied to him for his consent and permission to build its said road upon and along said highway, and that he signed some paper which was then and there presented to him by the agent of said company, giving his consent to the building of some railway; but avers that the said agent falsely and fraudulently represented to him that the proposed road was simply a street railway, and that the motive power to be used thereon was to be either electricity or animal power; and, in reliance upon the statements so made by the agent of the defendant, he subscribed the paper presented to him, the contents of which he is now unable to state, but avers that by reason of said false and fraudulent representations the said paper is and of right ought to be null and void, and of no binding force and effect whatever. The complainants Ella E. Nichols and Lucy L. Granger charged that they have given the defendant no consent or permission to construct and operate said railway in said highway in front of their premises, and that said railway has

obtained no lawful consent of the supervisor and commissioner of highways of said township, but that the same was obtained upon false and fraudulent representations; that the motive power to be used by said street-railelectricity, and that therefore, whatever consent was given by said commissioner or supervisor was of no binding force or effect whatever; that the paper purporting to give the consent of said supervisor and commissioner does not in any particular comply with the statute requiring the consent of the supervisor and commissioner; and that the acts and doings of the defendant, as set forth, have been done without warrant of law, and are not only an invasion of the rights of the complainants, but are also an unlawful appropriation of the public highway for railroad purposes; that the statute under which said pretended company was organized is no longer in force, and that there is no statute in this state which authorizes the formation of any such corporation as the said defendant claims to be; that the defendant, as a corporation, has no legal existence, and has no right to enter upon any of the highways of this state, and build thereon a railroad of any description; that the paper purporting to be the consent of said supervisor and commissioner to build said road was not executed in accordance with any action theretofore taken by the township board of said township, nor was the same made and executed at any meeting of said township board. Complainants claim by their bill that the construction and operation of said railway will cause a serious and lasting damage and injury to the said real estate, and that the corporation is not personally responsible for any judgment for damages; that the location of said track within two or three feet of the road fence, upon the west line of said highway, makes it necessary for them, in order to get into their fields or to their houses and barns situate thereon, to cross the track of said railway; that their houses front upon said highway, and are only a distance of ninety feet from the line of said highway, and that it will be impossible to hitch horses or other animals in front of their said premises without danger of their being killed or injured by the cars of the defendant; that the construction and operation of said railway will largely decrease the value of their real estate, and, if allowed to be constructed and put into oper ation, will occasion them irreparable injury to their use of the road over which said railway runs; that they are forced to come to Ann Arbor or Ypsilanti to market all the produce and crops from said farm; that the only highway over which they can pass to either city is this highway, and, if defendant is permitted to complete the construction and continue the operation of said road along said highway, it will be and remain a continuous cause of injury and damage to the complainants, and a permanent obstruction in said highway, and an object of fright to their teams while engaged in marketing their produce and crops from said farm; that the construction and operation of said rail