apply in the case of a transfer of property in trust. By the creation of a trust like the one before us, the trust property passes to the trustee with all its incidents and attributes unimpaired. He takes the whole legal title to the property, with the power of alienation; the cestui que trust takes the whole legal title to the accrued income at the moment it is paid over to him. Neither the principal nor the income is at any time inalienable." Now, if the learned court intended, by what was said by it, to lay it down as a general principle that in any and all cases where the legal estate may be vested in a trustee, the power of alienation exists, irrespective of the special nature of the trust declared, and though alienation might be a breach of that trust, and that therefore the rule against restraints on alienation would not be violated, such proposition, I submit, would not stand the test of reason. The trustee holds the legal estate to serve the purposes of the trusts; and, except under special authority given, he cannot alienate the legal estate without committing a breach of trust, and the alienee would take the estate subject to the trust, and the conveyance be liable to be set aside. As I understand it, it is because the beneficial and substantial ownership of property, though the legal estate may be in another, who is required to hold for the benefit of such substantial owner, is attempted to be secured to the use and enjoyment of the real beneficiary, exclusive of the ordinary incidents of property, that the rule against such restraint applies as well in equity as at the common law. Equitable as well as legal estates are property, and both species of estates are subject to the laws of property; and by those laws both species of estates are alike subject to the law of alienation, and are liable to the debts of the real owner. If then there be reason and policy for the support of the rule against the restraint of alienation at the common law, as is conceded by the court in Bank v. Adams, I do not understand why the same reason and policy do not apply in the case of a transfer of property in trust. Nor is it a matter of much consolation to creditors to know that the cestui que trust takes the legal title to the accrued income of the estate from the moment it is paid over to him, and that he is thereby enabled to put it in his pocket in open defiance of the demands of justice; though it be true, he is, from that moment, at liberty to dispose of it as he may think proper.

2. But suppose the law to be as contended for by the appellant,—that it is competent to a testator or the founder of a trust, by the use of apt terms, to exclude the power of alienation by the cestui que trust for life, and all liability for his debts,-the question then arises, has such restriction been effectually imposed in this case? As has been noticed, the only terms in the devise upon which reliance is placed for excluding the rights of the creditors, are those employed in the direction to the trustee, that, after certain deductions for necessary purposes of the farm, the net rents and profits shall be paid into the hands of the son, "and not into another, whether claiming by his authority or otherwise," so long as the son shall live. The trustee is given no discretion, and the devise is to the son absolutely for life. According to all authority, the exclusion of the right of alienation, and the liability for debts, can only be affected, if at all, by the use of very clear and explicit terms. Here, the direction is only as to the mode of payment to the cestui que trust. I have found no well considered case, even in the case of married women, in regard to whom such restrictions may be imposed, where such terms as are here used, have been held to have such operation. In Brandon v. Robinson, supra, Lord ELDON said "the old way of expressing a trust for a married woman was, that the trustee should pay into her proper hands, and upon her own receipt only; yet this court always said she might dispose of that interest and her assignee would take it; as, if there was a contract, entitling the assignee, this court would compel her to give her own receipt, if that was necessary, to enable him to receive it." And certainly, if a cestui que trust can assign the interest, that interest can be made liable for

his debts. The same principle is clearly stated by Judge Story, in 2 Eq. Jur. §§ 1382a, 1383. And in the case of Acton v. White, I Sim. & S. 429, it was held by Sir JOHN LEACH, V. C., that a devise to trustees for the separate use, with a direction to pay the rents, income, or interest, from time to time into the proper hands of the cestui que trust for life, (the wife of the devisor,) was not sufficient to impose the restriction, though the words, "and not otherwise, and that the receipt of the cestui que trust alone for what shall be paid into her proper hands shall be sufficient discharge," were added. The principle is settled that such restriction will not be implied from any ambiguous expressions, but must be declared in express terms, or be deducible from words that admit of no doubt whatever. The words here are not free of ambiguity.

I am of opinion, therefore, upon both grounds, that the fund was attachable for the debts of the cestui que trust; and under the facts agreed on, I can perceive no difficulty in rendering judgment of condemnation, according to the practice recognized in Early v. Dorsett, 45 Md. 462. The judgment below, according to my view, ought to be reversed.

(60 Vt. 401)

In re DICKERSON et al.

(Supreme Court of Errors of Connecticut. 1887.) For majority opinion, see 10 Atl. Rep. 194.

PARK, C. J., (dissenting.) While agreeing with my brethren in the general principle which they apply to this case, I think they err in their application of it, and I am unable to arrive at the conclusion which they have reached. The first rule in the construction of wills is to ascertain, if possible, and give effect to, the intent of the testator. All other rules give way before this predominating and decisive one. The principle which the majority of the court invoke is an important one, and has its place, but I think must be treated as entirely subordinate to the rule that the testator's intent, where it can be ascertained, shall govern. I consider the present inquiry to be wholly one as to the real intent of the testatrix. In this case the testatrix gave to her nephew, Gershom B. Bradley, all her real estate in Westport. She then gives all the remainder of her estate, real and personal, to six relatives, of whom Bradley was one. She thus disposed of all her property, leaving no part of it intestate, so that no necessity arises for applying any arbitrary rule to avoid partial intestacy. The question becomes the simple one, what she intended by her "real estate in Westport." It appears from the finding that at the time she made her will, in the year 1856, she owned a homestead and real estate connected with it in Westport, which, after her death, was appraised at $2,350. It is of course entirely clear that she intended at this time to give to Bradley this real estate, and this only. She at that time owned no other real estate, except a small quantity in an adjoining town. But in 1860, four years after the will was made, a note for $3,000 was distributed to her as a part of her father's estate, which note was secured by a mortgage on a farm in Westport. This mortgage, in 1877, she foreclosed, and thereby became the owner of the farm, which was covered by the mortgage. She died in 1885, having made no change in her will. It is very clear that it will not do to argue that she deliberately decided to make no change in her will with the intent that this farm should go with her other real estate in Westport to Bradley, for the principle which the majority of the court apply to the case would be equally applicable and controlling if she had died after her father, but before his estate had been distributed, or if she had become insane immediately after the will was made, and this note and mortgage had come into the hands of her conservator, and the foreclosure had been procured by him. It is a rule of constant application that where the intention of a testator is doubtful

the inquiry after it may be helped by considering all the circumstances attending the making of the will; in other words, that the court should place itself precisely in his place, and look out as he did upon his property and the objects of his bounty; and the will, for the purpose of determining its meaning, is always read in the light of the then existing facts. Indeed, this court held i Colt v. Colt, 32 Conn. 422, that where parts of a will have been revoked by a codicil, so as in law no longer to exist, and so that the will, if regarded as speaking at the time of the testator's death, must be entirely silent as to these discarded clauses, the latter may yet be read with the rest for the purpose of ascertaining the testator's intent in the clauses which he has retained. It is impossible to doubt that the testatrix really intended to give Bradley the real estate owned by her in Westport in 1856, and that everything else that she had or should ever have should go into her residuary bequest. Why should not this clear intent prevail? Why should any artificial rule be brought in and given a strained application, when its only effect is to defeat this actual intent of the testatrix? It seems clear to me that that intent should prevail and be sustained by the decision of the court.

(55 Conn. 223)

DREW v. EDMUNDS et al.1

(Supreme Court of Vermont. Windsor. September 8, 1888.)

1. SALE-WARRANTY-REPRESENTATIONS.

In the sale of an engine and boiler, the vendor's declarations as to their quality constitute a warranty that they are as described, when the declarations are relied on by the buyer as the basis of the contract, and the vendor so understands it." 2. SAME LATENT DEFECTS.

A defect in a steam-chest, readily discernible on taking off the cover, is not a latent defect.

8. SAME-ARTICLES SUPPLIED IN PLACE OF DEFECTIVE Ones.

The plaintiff sold an engine and boiler, with the fittings, to the defendants, and received the pay therefor; and, when the plaintiff learned that there was difficulty with the governor, he made a proposition to furnish another, and take back the old one, at a difference of $45, which offer was accepted without condition. Held that, though defendants were entitled to damages under a plea of breach of warranty for defects in the engine, plaintiff was entitled to recover the $45, on the ground that the acceptance was according to the terms of the offer.

4. SET-OFF AND COUNTER-CLAIM-WHEN ALLOWABLE.

A plaintiff who has made two parties defendants is in no situation to deny a counter claim, on the ground that it did not accrue to both, and when he had always treated the deal as with both.

Exceptions from Windsor county court; TYLER, Judge.

Assumpsit. Plea, non assumpsit, and two pleas in offset. Heard on a referee's report, December term, 1887. Judgment pro forma, and without hearing, as follows: The exceptions are overruled. The plaintiff has judgment against the defendants for the item of $84.41, and interest from February 10, 1881, to December 6, 1887, making $120; and the defendants, on their plea in offset, have judgment against the plaintiff for $212.34 as of the same date; and judgment entered for the defendant to recover of the plaintiff the balance between said sums, being $92.34. The referee found substantially as follows: "S. C. Forsaith, one of the plaintiffs, deceased after the commencement of this suit. In the fall of 1880, Wm. H. Edmunds, one of the defendants, desired to build a steam saw-mill, and arranged with Nelson Ellison, the other

1Reported by Senter & Kemp, Esqs., of the Montpelier bar.

For representations held to constitute warranties on sales of chattels, see McClintock v. Emick, (Ky.) 7 S. W. Rep. 903, and note. On the sale of an article for a particular purpose, a warranty is implied that it is fit for that purpose. Manufacturing Co. v. Williams, (Ark.) 3 S. W. Rep. 517, and note. As to warranties implied on sales of chattels, and for representations held to amount to warranty, see Fogg's Adm'r v. Rodgers, (Ky.) 2 S. W. Rep. 248, and cases cited in note; Schroeder v. Trubee, 35 Fed. Rep.

defendant, to furnish him the money with which to purchase a boiler and engine to propel such mill; and the boiler and engine were to be billed to him, Ellison, and to be and remain his property until paid for by said Edmunds. Edmunds, having received a catalogue of boilers and engines kept by the plaintiffs for sale, went to their place of business at Manchester, N. H., with the view of purchasing a boiler and engine of them. They had a certain boiler at their shop in Manchester, and an engine at Bridgeport, Conn., both of which were second-hand, and described in the catalogue which Edmunds had received from the plaintiffs. They offered these to Edmunds, with the requisite machinery, couplings, pipes, etc., to put them in operation, at a certain price, and requested him to go to Bridgeport, and see the engine; but Edmunds replied that he had no knowledge of such property, and, if he bought it, he should rely upon their description of it. He also told the plaintiffs for what purpose he wanted the boiler and engine. He also told them he was not prepared to accept their offer at that time, but that he desired to consult Ellison on the subject, and that he would go home and consult him, and let them know in a few days whether their offer would be accepted, and which outfit he would take, two having been offered. The offer referred to is contained in a letter addressed to Nelson Ellison, Bethel, Vt., and in which were the following descriptions: Pulley has been cracked, but strongly mended. The bed is 13 ft. x 27 in.; has been cracked, but well patched, and is strong as ever. Engine in good order, and complete with all its parts, including governor; been overhauled, and put in good working order; a bargain. Price $425.' 'We offer you our boiler No. 4,233, repaired, tested, * * * complete, ready to set up,' etc." The offer contained in the letter was accepted, and the engine and machinery were shipped December 4, 1880, to Ellison, at Bethel, Vt., and were taken by said Edmunds, and set up and put in operation. It was found that the injector was too small for the boiler, and that the governor was not suitable for an engine running a saw-mill. On learning this from the defendants, the plaintiffs took out the old injector, and put in a new one, and charged on their specification in this action $103.30, and gave credit for the old one, $33.70. "But, as I find that the first injector furnished was too small to supply this boiler with water, and the plaintiffs' contract required them to furnish a suitable injector, I have disallowed all these items of debt and credit. There was also trouble with the governor to the engine, as before stated; and said foreman of the plaintiffs had his attention called to it, when at the mill changing injector, and then told Edmunds that it was not suitable for his business. After their foreman returned, the plaintiffs, on the 22d day of February, 1881, addressed a letter to the defendant Ellison, and among other things making this offer: 'As to the regulator [governor] itself, it would work well enough on an engine running steadily, as this did before, not running so uneven, as you do, in feeding on to a log full size of your saw, then out of your log with nothing on, and we fear will trouble you. Our foreman took the proper measures, so, if you desired, we could get out and fit here a new governor, and send you, with valves and fittings, all new, best the country affords, at a difference of $45.00 between these new and your old governor and parts.' Ellison made no reply to this offer, but sent the letter to Edmunds, who on the 28th day of February telegraphed said firm from Bethel as follows: Send governor and fittings to-morrow, express, without fail; reply to-night;' thereby accepting the offer. Inasmuch as Edmunds told the plaintiffs he wanted this engine to run a saw-mill, and they sold it for that purpose, I think they were bound to furnish the engine with a suitable governor for that purpose, and so find subject to the opinion of the court. If the court should hold otherwise, or should also find that the claim of the defendants that the plaintiffs were under obligations to furnish them a suitable governor with the engine for operating a saw-mill was waived or settled by the acceptance of their offer by Edmunds as aforesaid, I then allow the item of $45 for the governor, and

disallow the item of $1.20 for work on the same. Interest is also to be allowed on said item of $45 from April 1, 1881; otherwise I disallow both said items. Soon after the new governor had been put on to the engine, it was discovered that the steam-chest of the engine was out of repair, and leaked so badly as to very much lessen the power of the engine. Edmunds tried to get along with it, by wedging it up and repacking it, but could only saw in his mill about 2,500 feet a day with the same help that, after the engine had been repaired, he sawed, as the evidence shows, 10,000 feet per day. On taking off the cover to the steam-chest, it was discovered that the latter had been badly eaten by steam, and had been fixed up with red lead or putty. Edmunds managed to saw out his logs that winter and spring, but the next November he took his engine or portions of it to the shop of David Shortsleeves, at Rutland, for repairs. On examining the steam-chest, it was found to be so badly eaten that it could not be repaired so as to do much service, and a new steam-chest was made for the engine. This defect in the steam-chest was not visible until cover was removed. From the evidence, I find that the engine was not in good order and complete in all its parts, etc., nor had it been put in good working order when shipped from plaintiffs' place of business, according to the printed description of the same aforesaid. I also find that it would have cost to put it in such order or repair, as required by the said printed description of the same, $150 in addition to the governor furnished by the plaintiffs as aforesaid, and with which sum the plaintiffs are chargeable under their contract or warranty. I also find that the said Edmunds ordered of the plaintiffs certain other machinery, belting, work, etc., it being items Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12, as numbered and grouped in the plaintiffs' specifications, amounting in all to $84.41, at the agreed price to be charged therefor. ** * * I further find that the descriptions of said boiler and engine, and the representations as to their condition and state of repair, contained in said printed slips upon said Exhibit 18, constituted the basis of the purchase of said property made by the defendants, and were relied upon by them, as the plaintiff Drew well knew. I therefore find that such descriptions and representations constitute a warranty of said boiler and engine; that they were both in the condition and state of repair indicated thereby. I further find that no other representations than as above stated were made in regard to said engine and boiler. After the sale of the same to the defendants as aforesaid, said engine was brought to the plaintiffs' shop at Manchester, aforesaid, and examined by said Drew and the plaintiffs' foreman, and, so far as they could see, it was all right; but they did not open the steam-chest, and without opening it its condition could not be seen." It was found, subject to the opinion of the court, that, if the defendants were liable to pay for the governor $45, the plaintiffs were entitled to recover $180.93, including interest to December 6, 1887, and certain other items amounting to $84.41, and interest on these; and that, if the plaintiffs were entitled to recover on their pleas in offset, the said $150 should be on interest from January 1, 1881, to December 6, 1887, and it would amount to $212.34.

French & Southgate, for plaintiff.

In sales by description, the only implied warranty is "that the property shall answer the description." 2 Benj. Sales, § 966, p. 844; Story, Sales, § 358; Bartlett v. Hoppock, 34 N. Y. 118; Swett v. Colgate, 20 Johns. 196; Mixer v. Coburn, 11 Metc. 559. The defendants' claim in offset has no foundation. The trouble with the steam-chest was a latent defect, unknown to the plaintiffs. They purchased the engine in Connecticut, as second-hand, and it remained there until sold to defendants, and was then brought to Manchester, and examined by the plaintiffs and their foreman, and considered all right. Numerous cases of this character have been before our court, involving the sale of a potash kettle, (Stevens v. Smith, 21 Vt. 90;) combination