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On report from supreme judicial court, Cumberland county.

Probate appeal. Petition by heir at law that respondent be required to file his final account as executor. The probate court denied the petition, and an appeal was taken.

John A. Waterman and C. W. Goddard, for appellant. Wilbur F. Lunt, for appellee.

LIBBEY, J. The matters in contention between the parties in this case arise in the settlement of the estate of Crispus Graves, who died testate in 1879. His will was probated, and the respondent was duly appointed and qualified as executor in April of that year By his will the testator first provided that his brother, Ebenezer C. Graves, have his maintenance out of his estate during his life. The second clause in the will is as follows: "After the decease of said Ebenezer, I give, devise, and bequeath to school-district number five, in the town of Falmouth, all the residue of my estate, both real and personal, wherever the same may be found, for the purpose of educating the children of said district." Ebenezer died September 1884. On the third Tuesday of February, 1885, the respondent settled in probate court his first account as executor, by which there appeared in his hands a balance of $5,405.33. The petitioner is of next of kin and one of the heirs at law of said Crispus Graves, and in April, 1886, she petitioned the probate court that said executor be required to settle his final account of his administration of said estate. In June, 1886, the respondent appeared, and filed his answer to the petition, claiming that the petitioner had not by law nor by the provisions of the will any interest in the estate. In support of his answer the respondent relies on a release from said district, dated April 10, 1885, executed by one Wilder, agent, duly authorized therefor, by vote of the district, by which the district "in consideration of the sum of four hundred dollars, ($400,) the receipt of which is hereby acknowledged, do hereby release, compromise, settle, and discharge its claim against James C. Marston, executor of the last will and testament of Crispus Graves, late of Deering, deceased, for all sums of money due it, or claimed by it, under said will, as shown by said Marston's account." By this it appears that the school-district, for $400, released all claim it had as residuary legatee, and it would seem that the respondent, in his said capacity, still holds in his hands, belonging to said estate, $5.000.33. After hearing the parties the judge of probate adjudged "that the petitioner, though one of the heirs at law and next of kin of said deceased, is not by law nor the provisions of the will of the deceased interested in said estate or the subject, and decreed that the petition be dismissed. We think this decree erroneous. The question is raised and discussed by counsel whether a school-district can take by devise property to be held in trust for the education of its children. The question is not free from doubt; much may be said on both sides. But the school-district and all the heirs at law interested in the question have not been notified, and are not before the court; and, as the decision of the question is not necessary, in our opinion, to the result of the case before us, we do not decide it. If a school-district can take by devise money to be held and used for the education of its children, it can only be by direct vote of the district in legal meeting accepting it. If taken and held for such a trust, the court has jurisdiction to enforce the execution of the trust; and, if the fund should be lost by embezzlement, misappropriation, or negligence, a decree might be rendered therefor against all the inhabitants of the district, so that the matter might interest many who would receive no direct benefit. The case does not show any such acceptance. The vote to discharge any claim it might have, before acceptance, for a small percentage, cannot be held to be an acceptance of the devise by the district. Then, if the school-district took by the devise, and released $5,000 of it in the hands of the executor, it presents a proper question for the decision of the court whether he does not hold it in

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his capacity for the benefit of the heirs of his testator. But the first step in the litigation is the settlement by the executor of his final account. Until that is done it cannot be assumed that there will be anything in his hands for distribution. When that is done, if there is anything remaining in his hands, the questions to which we have alluded can properly be raised by a petition for a decree of distribution, or by bill in equity, when all the parties interested will be summoned in, and nave a right to be heard. We only decide now that an heir at law has a right to petition the probate court that the executor be required to settle his final account. Decree of probate court reversed. Respondent required to settle his final account as prayed for. Case remanded to probate court for further proceedings.

PETERS, C. J., WALTON, VIRGIN, FOSTER, and HASKELL, JJ., concur.

SHOREY . CHANDLER.1

(Supreme Judicial Court of Maine. June 18, 1888.)

1. PLEADING-DECLARATION-ALLEGATION OF TIME.

A count in a writ, which alleges that the acts complained of were committed "on divers days and times between" two given dates, is bad on general demurrer. 2. SAME AMENDMENT-EXCEPTIONS TO OVERRULING Demurrer.

Under Rev. St. Me. c. 82, § 23, when exceptions are taken to the overruling of a general demurrer, the same must be passed upon by the law court before an amendment to the declaration can be allowed at nisi prius.

Exceptions from superior court, Kennebec county.

Action brought under the civil damage act to recover damages resulting from sale of intoxicating liquors to plaintiff's husband by defendant. Defendant filed a general demurrer to the first count in the writ; which was overruled by the presiding judge, and a trial had, which resulted in a verdict for the plaintiff. The defendant alleged exceptions.

Webb & Webb, for plaintiff. Brown & Carver, for defendant.

PER CURIAM. A count in case which alleges the acts complained of to have been committed "on divers days and times between January 1, 1886, and June 14, 1886," is bad on general demurrer. Properly the count should allow the acts as done on January 1, 1886, and on divers days between that and some later date. Under section 23, c. 82, Rev. St., after demurrer to a declaration, demurrer overruled, and exceptions taken to the ruling, a judge at nisi prius has no authority to allow the plaintiff to amend his declaration before the question of law raised by the pleadings has been passed upon by the full court. Exceptions sustained. Verdict set aside. Demurrer to first count sustained; said first count adjudged bad.

(80 Me. 427)

MILLETT et al. v. COUNTY COMMISSIONERS.1

(Supreme Judicial Court of Maine. June 23, 1888.)

HIGHWAYS-VACATION-BEFORE OPENING OF ROAD.

When, on appeal, the judgment of county commissioners locating a highway has been affirmed, and the proceedings duly closed and recorded, the commissioners may, within the three years allowed for making and opening the way, entertain a petition praying for its discontinuance.

Exceptions from supreme judicial court, Franklin county.

Petition for discontinuance of a highway. The county commissioners granted the petition, though filed within the three years allowed for making and opening the way after its location by the same board. The appellants

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.

appealed to the supreme judicial court, and filed a motion to dismiss the petition for discontinuance, which was, overruled by the presiding judge, and the appellants alleged exceptions.

Geo. Walker, for appellants. Joseph C. Holman, for appellees.

VIRGIN, J. The county commissioners, on due proceedings had, seasonably placed on file for inspection, at their December term, 1882, their return of the location of the highway prayed for, therein allowing three years for making and opening a highway. The two towns in which the way was located seasonably appealed. The report of the committee, duly accepted, and judgment thereon entered, affirmed in whole the judgment of the commissioners; and the judgment of the appellate court was duly certified to the commissioners, at whose December term, 1883, the proceedings were duly closed and recorded. In June, 1886, before the expiration of the three years allowed for making and opening the way, the same towns filed a petition in the court of county commissioners, praying for a discontinuance of the way theretofore located At the time and place of hearing the original petitioners for the way appeared, and filed objections to any action of the commissioners in the premises. The objections were overruled, and the commissioners made their return, discontinuing the way. Thereupon the original petitioners appealed, entered their appeal, and filed a motion to dismiss the petition for discontinuance on the ground of want of jurisdiction of the commissioners. The presiding justice overruled the motion, and the original petitioners (appellants) alleged exceptions. The question, therefore, is: When, on appeal, the judgment of county commissioners locating a highway has been affirmed in whole, and the proceedings duly closed and recorded, can the commissioners, within the three years allowed for making and opening the way, entertain a petition praying for a discontinuance of the same way? We are of opinion that they can. If, on appeal, the judgment of the commissioners had been reversed, "no petition, praying substantially for the same thing, could be entertained by them for two years thereafter." Rev. St. c. 18, § 50. That limitation does not apply when the judgment, as here, was affirmed; and, even if it did, more than two years had elapsed before the filing of the petition for discontinuance. When the proceedings on the original petition for location were closed, the located way became an established fact. Hallock v. Franklin, 2 Metc. 559. And, in the absence of any statutory limitation relating thereto, we perceive no legal objection to the commissioners entertaining a petition for the discontinuance of a legally located highway at any time after the location has become an established fact. "The subsequent discontinuance of the highway, whether very soon after it has been established by the adjudication, or after a long lapse of time, is a new, substantive, distinct, official act. It does not rescind or annul the former proceeding, but it assumes its continued existence as the basis of the discontinuance." SHAW, C. J., in Hallock v. Franklin, supra. The idea of the discontinuance of a highway, after location and before opening, is recognized also in Westbrook v. North, 2 Me. 179. Moreover, many various changes of circumstances suggest themselves, which would warrant a discontinuance without waiting for the needless expenditure of building the new way. The appellants invoke the peremptory language of Rev. St. c. 18, § 50: "In all cases the commissioners carry into full effect the judgment of the appellate court in the same manner as if made by themselves." The particular force of this provision is not so significant when, as in the case in hand, the judgment of the commissioners and that of the appellate court are the same, as when the former is reversed in whole or in part by the latter. But when the judgment of the appellate court was received by the commissioners, spread upon their record, and the judgment made up accordingly and recorded, they had then "carried it into full effect, in the same manner as if made by themselves." But it is sug

gested that it was their duty to see to it that the towns liable therefor opened and made passable the located way within the time allowed to them,-three years. But the power to cause the way to be opened is not a part or a continuation of their duty to locate, and which their board can exercise suo motu. Such action can be set in motion only by a distinct process, "on a petition of those interested," and "on a notice to the town" which has neglected its duty in the premises. Rev. St. c. 18, § 37; Woodman v. Somerset Co., 25 Me. 300. If it be said that under such an administration of the law a highway can never be made in a town which was opposed to it, if its inhabitants can connive with the commissioners to locate in the first instance, and then discontinue before the time for opening expires, one answer is: the right of appeal will correct such errors; another is: the office of county commissioner is a public trust, and the presumption is, the incumbents will honestly perform their duty; and still another is: the legislature may limit the time within which a located way may be discontinued. Exceptions overruled.

PETERS, C. J., and WALTON, LIBBEY, FOSTER, and HASKELL, JJ., concurred.

(80 Me. 408)

Dow v. MURCH.1

(Supreme Judicial Court of Maine. June 12, 1888.) JUDGMENT-BY DEFAULT-DEFECTIVE SERVICE-POWER of Judge.

A presiding judge is warranted in refusing to allow judgment to be entered in an action when, upon inspection of the officer's return on the writ, it appears that service by summons was made 13 days before the return-day, instead of 14, as required by statute; the defendant failing to enter his appearance in the action.

On exceptions from superior court, Cumberland county.

Exceptions to the refusal of the presiding judge to allow judgment to be entered in an action when the officer's return on the writ showed that service by summons was made on defendant only 13 days before the return-day, instead of 14, as required by statute. There was no appearance for defendant. Eliot King and Geo. C. Hopkins, for plaintiff.

PETERS, C. J. The question is whether a judge can refuse to allow judgment to go in an action in which, on inspection of the officer's return on the writ, it appears that service by summons was made only 13 days before the return-day of the writ; the defendant failing to appear in the action. The refusal of the judge was correct. The law requires the service to be made 14 days before the return-term. Anything less than that is not a legal service; in other words, is not a service. And a defendant may rely, in such case, on a want of notice as an excuse for his non-appearance in the action. He may expect that an improper judgment will not be accorded against him. If a thirteen-days service will do, then one day's notice would do just as well. The cases are entirely different from this, in which it has been held, as in Snell v. Snell, 40 Me. 307, that an appearance, though special, cures a defective service, unless seasonable plea or motion be made after appearance to take advantage of the defect. A defendant in such case waives an insufficient service if he appears to object to it, but fails to make his objection, as required by the rules of court; and his appearance stands for all purposes. The presumption is that he assents to the service, and appears generally, having taken no steps to indicate to the contrary. Exceptions overruled.

WALTON, VIRGIN, LIBBEY, FOSTER, and HASKELL, JJ., concurred.

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.

(80 Me. 466)

DANFORTH v. ROBINSON et al.1

(Supreme Judicial Court of Maine. July 27, 1888.)

INSOLVENCY-DISCHARGE-CONTRIBUTION-BETWEEN CO-SURETIES.

The discharge in insolvency of a surety on a promissory note, given before the insolvent act took effect, is no bar to an action on a judgment for contribution, recovered by a co-surety after the insolvent act took effect, and before the insolvent's petition and discharge.

Exceptions from supreme judicial court, Somerset county.

Debt on judgment for contribution between co-sureties on a promissory note. Plea, discharge in insolvency. The opinion states the material facts. The presiding judge ruled in favor of the defendant, and the plaintiff alleged exceptions.

J. J. Parlin, for plaintiff. Walton & Walton, for defendant.

VIRGIN, J. These parties were co-sureties on a promissory note given in September, 1875. In 1879 the plaintiff paid the note to the holder, and in March, 1885, recovered judgment against the defendant for contribution. Subsequently the defendant duly obtained his discharge in insolvency from all his debts, etc., which existed in May, 1885. The insolvent law went into full effect on September 1, 1878, when the federal bankrupt law was repealed. The present action is debt on the judgment of March, 1885, to which the defendant has pleaded his discharge in bar. The principal question is whether one surety on a note, given before the insolvent law went into effect, who paid it and recovered judgment for contribution against his co-surety after the insolvent law took effect, can maintain an action on the judgment non obstante the judgment debtor's discharge. It seems to be settled law that as between co-sureties the right of action for contribution in behalf of one of them who has paid the whole debt for which they were liable, arises when he pays, and not before; and then, and not before, can he prove his claim for contribution against the estate of his insolvent co-surety. Dole v. Warren, 32 Me. 94. But while the right of action did not arise until he paid, it does not necessarily follow that the original liability, which then had ripened into a right of action, had not existed before. It is contended that, as the defendant's discharge, by force of the statute, “released him from all debts, claims, liabilities, and demands which were or might have been proved against his estate in insolvency," and which existed in May, 1885, (Rev. St. c. 70, § 49,) and as the plaintiff not only paid the whole note, but also recovered judgment against the defendant for his contributory share, prior to May, 1885, the plaintiff's claim became an existing one, which "might have been proved against the estate in insolvency" of the defendant, and hence was one of the claims covered by the discharge. But this language of the statute must not be taken literally, for, thus construed, it would include claims and debts which antedated the insolvent law, and thus render that provision unconstitutional as impairing "the obligation of contracts," (U. S. Const. art; 1, § 10; Const. Me. art. 1, § 11; Palmer v. Hixon, 74 Me. 447, 449,) as well as debts owed by citizens of this state to those of another state, regardless of date, (Hills v. Carlton, 74 Me. 156.) Hence the "debts, claims, liabilities, and demands,' from which the defendant was released by his discharge, must be limited to such as originated after the law, by its terms, took effect, together with such as were between citizens of this state, unless the creditors or claimants in such excepted cases elected to prove their claims. Fogler v. Clark, 80 Me. ante, 9; Palmer v. Hixon, supra; Hills v. Carlton, supra. Did the liability of the defendant originate prior to the insolvent law? We think this question has been decided in the affirmative in this state, and it is, therefore,

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.

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