turned a verdict for the plaintiff, and the defendant now moves for a new trial; one of the grounds of the motion being that the verdict is against the evidence in this respect.

We think the defendant is entitled to a new trial. The contract for the sale of 30 or 40 tons would naturally be understood to mean a contract for between 30 and 40 tons, or, at most, for a quantity not much exceeding 40 tons. Fifty-three tons is so much more than 40 tons that we do not think that the jury were warranted in finding that the defendant agreed to purchase that amount. The cases cited for the defendant show that as a general rule the buyer is entitled to refuse the whole of the goods tendered if they exceed the quantity agreed, and the vendor has no right to insist upon the buyer's acceptance of all, or upon the buyer's selecting out of a larger quantity delivered. Dixon v. Fletcher, 3 Mees. & W. 146; Hart v. Mills, 15 Mees. & W. 85; Cunliffe v. Harrison, 6 Exch. 903; Levy v. Green, 1 El. & El. 969; Rylands v. ▲reitman, 19 C. B. (N. S.) 351; Rommel v. Wingate, 103 Mass. 327; Croninger v. Crocker, 62 N. Y. 151; Benj. Sales, (2d Amer. Ed.) § 689. The defendant cannot be held to have waived the objection to the cargo by not making it when the goods were tendered. Levy v. Green, 1 El. & El. 969. Petition granted.

(16 R. I. 274)

PHILLIPS v. WOOD.

(Supreme Court of Rhode Island. February 19, 1887.)

1. POWERS-TESTAMENTARY-CONSTRUCTION-ASSIGNMENT OF POWER IN TRUST. A testator devised all his estate to his widow during her life, to use the rents and profits, with power to sell if necessary for her support, remainder over. Held, that the power was personal, and the grantee in a deed of trust by the widow conveying all said real estate to him, his heirs and assigns, forever, in trust, to manage and sell as she might under said power, took only the widow's life-estate.

2. WILLS-CONSTRUCTION-ESTATES ON CONDITION.

Testator, after devising to his wife a life-estate in all his property, with power to sell for her support, gave all the rest and residue of his estate, after his wife's death, to P., his heirs and assigns, provided that he pay all debts, funeral charges, etc. Held, that P. took a vested remainder; the condition being a condition subsequent, and not an executory devise, as it took effect on the determination of the life-estate.

Bill in equity for an injunction.

The will of John Kelton, proven before the probate court of Johnston, June 1, 1878, is:

"I, John Kelton, of Johnston, in the county of Providence, in the state of Rhode Is and, of lawful age and sane mind, do make this as and for my last will and testament: First. I give, devise, and bequeath to my wife, Sally Kelton, all the rents, protits, uses, interests, dividends, and other sources of income of all the real estate and personal property or other evidences of property of which I may die seized and possessed, and wherever the same is situated and may be found, and which at this time consists of my real estate in Olneyville; of the houses and lots near the Providence and Springfield Railroad; my house and lot on Plainfield street, where I now reside; and two wood lots in the town of Foster, known as lots No. 3 and 4, on a plat of the division of the estate of Joseph Phillips, deceased, which said lot No. 4 was set off to Rufus Phillips, and lot No. 3 was set off to Nancy E. Potter, wife of Nehemiah K. Potter; also my farm, situate in the town of Johnston: to have and to hold the same for and during her life; and if at any time during her life the rents, protits, and issues of said property shall not be sufficient to maintain my said wife in a comfortable manner, then I hereby authorize my said wife to sell so much and such part of my said property as she may think proper and necessary for her support, from time to time, as necessity may require. I hereby nominate, constitute, and appoint my said wife, Sally Kelton, sole executrix of

this my last will and testament, hereby revoking all former wills, and confirming this only.

"Witness my hand and seal, August 29, 1873.

"Whereas, in the above bequest to my wife I did not make provision for the disposition of the remainder of said property after her decease, therefore, after the decease of my said wife, I give, devise, and bequeath said property and the rents and profits thereof to Emily Amanda Markham, of the city of Providence, and to her heirs and assigns, forever. JOHN KELTON. [Seal.]

"Signed, sealed, published, pronounced, and declared by the said John Kelton in our presence to be his last will and testament, and we, at his request, in his presence, and in presence of each other, have hereto set our names as witnesses to the same. MRS. J. M. TOURTELLOT. "GEORGE S. FENNER. "ROBERT WILSON.

"I, John Kelton, above named, of sane mind, do hereto make and declare this instrument to be a codicil to the aforegoing will, and do hereby revoke and annul so much of said will as shall be inconsistent with this codicil: First. I give and bequeath to the city of Providence the sum of one hundred dollars for the purpose of keeping in good order my burial lot at Swan Point cemetery, in said city of Providence, forever. Second. I give, devise, and bequeath to William A. Phillips, of said Johnston, all the rest and residue and remainder of all my property of every name and kind, to take effect after the death of my said wife, to him, his heirs and assigns, forever: provided, however, he pay all my debts of every name and kind, including funeral charges, and placing grave-stones at my grave. I give John Kelton Mathewson, the son of John A. Mathewson, one hundred dollars. Third. I hereby nominate, constitute, and appoint said William A. Phillips sole executor of my last will and testament and this codicil, hereby revoking the desire and bequest made to Emily Amanda Markham, and confirming al parts of said will not inconsistent with this codicil. In testimony whereof I have hereunto set my hand and seal this 24th day of April, A. D. 1878.

"JOHN KELTON. [Seal.]

"Signed, sealed, published, pronounced, and declared by the said John Kelton, in our presence, to be his codicil to his last will and testament, and we, at his request, in his presence, and in presence of each other, have hereto set our names as witnesses. JAMES SHERSON. "ROBERT WILSON."

Emily Amanda Markham died May 25, 1877. December 11, 1885, Sally Kelton executed the following trust deed to Herbert B. Wood: "Know all men by these presents, that I, Sally Kelton, of Johnston, in the county of Providence and state of Rhode Island, for and in consideration of the sum of one dollar to me paid by Herbert B. Wood, of said Johnston, the receipt whereof I do hereby acknowledge, and in consideration of the trusts herein contained, have given, granted, bargained, sold, aliened, enfeoffed, conveyed, and confirmed * * * unto the said Herbert B. Wood, his heirs and assigns, forever, all the real estate, with all the improvements thereon, situated in said Johnston, or wheresoever the same may be situate, which my husband, the late Jolin Kelton, devised to me in and by his last will and testament, which said will is recorded in the probate records of said Johnston, reference thereto being had for greater particularity of description, excepting, however, therefrom such portion of said real estate so devised to me as aforesaid as I have heretofore conveyed; to have and to hold the same, with all the appurtenances, privileges, and commodities to the same belonging, or in anywise appertaining, to the said Herbert B. Wood, his heirs and assigns, forever. In trust, nevertheless, for the following purposes, namely, that he shall have the sole care, control, and management of said estates, with full power and authority to sell and convey any or all of the same in the same manner and for the same

purpose as I might or could sell and convey the same prior to the execution of these presents, by exercise of the power and authority vested in me, the said Sally Kelton, by virtue of the said last will and testament of my late husband, John Kelton, (intending to convey and hereby conveying to said trustee, his heirs and assigns, all the rights, powers, and authority vested in me by virtue of said will, or which may arise by implication of law from any of the conditions or clauses thereof, and subject to the provisions thereof;) that he shall collect, receive, and receipt for all the rents, profits, and income from said estates; that out of said rents, profits, and income, together with the proceeds of the sale of any or all of said real estate, he shall, if sufficient, keep the buildings thereon in good order and condition and insured; that he shall pay all legal taxes and assessments thereon; shall pay all my just debts, and the cost and expenses arising out of my care, support, and maintenance; that he shall pay the expenses incident to the creation, execution, and performance of these trusts, including a reasonable compensation for his services as trustee aforesaid. In witness whereof," etc. Wood, as trustee under this deed, advertised certain realty for sale, and the complainant filed a bill to enjoin the sale. The parties to this bill agreed to submit to the court the questions as to (1) what estate does Sally Kelton hold under her husband's will? (2) Has the complainant, Phillips, so complied with the conditions of the will as to be entitled to the residue bequeathed and devised to him; if not, what time is allowed him for compliance? (3) What estate does the respondent, Wood, hold under the trust deed?

George J. West, for complainant. Herbert B. Wood and William Fitch, for respondent.

PER CURIAM. 1. Sally Kelton, widow of John Kelton, takes under the will and codicil of her late husband an estate for life in the property given to her, coupled with a power "to sell so much and such part of the property," i. e., the entire estate therein, "as she may think proper and necessary for her support from time to time as necessity may require;" the power being personal, not assignable. Trust Co. v. Bank, 14 R. I. 625, 628.

2. The complainant takes, under said will and codicil, a remainder in fee, the condition attached being a condition subsequent. The estate is a remainder, not an executory devise, since it is limited to take effect on the determination of the preceding life-estate. When an estate is devised on condition, the condition is construed as precedent or subsequent, according to the intention of the testator, if the intention is apparent, and, if not, preferably as a condition subsequent, since the courts favor the vesting of estates. The testator must have known that it would take time to pay debts and funeral expenses, and erect grave-stones, as provided in the condition, and it is fair to suppose that he contemplated the complainant's taking a reasonable time, and that meanwhile he should not be exposed to the risk of losing the benefit of the testamentary gift, and yet he would be exposed to such risk by the determination of the preceding life-estate before the condition was fully performed, though it might be in great part performed, if the condition were a condition precedent. The estate having vested, the complainant will succeed to the possession on the decease of the life-tenant, unless the heirs interpose for breach of condition.

3. Herbert B. Wood, trustee, takes, under the trust deed, only the life-estate of Sally Kelton, the grantor.

(16 R. I. 279)

PHILLIPS v. BROWN.

(Supreme Court of Rhode Island. July 7, 1888.)

POWERS-EXECUTION-QUITCLAIM DEED.

A devisee of a life-estate with power to sell for her support, having executed a trust deed of the property, in which she attempted to delegate to the trustee her

power of sale, executed to him a quitclaim deed of all the property, not referring to the power or the necessity for the sale, excepting a portion which she had formerly conveyed by deed reciting the power and sale for her support. Held, that the quitclaim conveyed only her equitable life-estate.

Trespass and ejectment. Heard by the court, jury trial being waived. George J. West, for plaintiff. Herbert B. Wood and William Fitch, for defendant.

STINESS, J. The plaintiff sues in trespass and ejectment upon his title to the land in question as residuary legatee under the will of John Kelton, deceased. By this will Kelton devised his real estate to his wife, Sally Kelton, "to have and to hold the same during her life; and if at any time the rents, profits, and issues of said property shall not be sufficient to maintain my said wife in a comfortable manner, then I hereby authorize my said wife to sel! so much and such part of my said property as she may think proper and necessary for her support, from time to time, as necessity may require." January 29, 1881, Sally Kelton, by deed, referring to and under the authority of the power above given, sold to William F. Mountain a farm, which was a portion of the estate, reciting that the sale was for the purpose of providing her a comfortable support; the rents and profits of the property given her in the will being insufficient for that purpose. December 18, 1886, she made a quitclaim deed to Herbert B. Wood of "all the right, title, interest, property, claim, and demand which I now have, or of right ought to have or claim, in and to all the real estate, with all the improvements thereon, situate in said town of Johnston, of which my late husband died seized, (excepting, however, therefrom the estate heretofore by me conveyed to William F. Mountain,) and however the same are bounded and described; meaning and intending hereby to convey the estates, with the two dwelling-houses and other improvements thereon, situate on Smith St., so called, in said Johnston. Also the homestead estate of the late John Kelton, where I now reside, and situate on Plainfield street, in said Johnston." July 29, 1887, Wood executed a quitclaim deed to the defendant, under which she claimed title.

The question is whether the deed from Sally Kelton to Wood conveyed a title in fee or only her equitable life-estate; she having previously made a deed of the property to Wood, not under the power, but in trust for her maintenance, in which she undertook to delegate the power of sale to him. This court has decided, in a bill in equity brought by the complainant against Wood, October term, 1886, (ante, 88,) to enjoin him from proceeding to sell under the power, that the power was personal, and not assignable; and that the trust deed conveyed only her life-estate in the property to the trustee. It will be observed that the grant in the deed in question is simply the right, title, interest, etc., which Sally Kelton then had or ought to have in and to the property described. No reference is made to the power given her in the will, nor is any language used which clearly, if at all, shows her intention to act under it. Kent says, with reference to the execution of powers: "The power may be executed without reciting it, or even referring to it, provided the act shows that the donee had in view the subject of the power. The general rule of construction, both as to deeds and wills, is that, if there be an interest and a power existing together in the same person over the same subject, and an act be done without particular reference to the power, it will be applied to the interest, and not to the power. 4 Kent, Comm. (12th Ed.) p. 334; 2 Washb. Real Prop. *325, § 33. The subject of the execution of powers was exhaustively examined by Judge STORY in Blagge v. Miles, 1 Story, 426. His review of the cases fully sustains the rule as given by Kent. The following cases are also in point: Denn v. Roake, 5 Barn. & C. 720; Hay v. Mayer, 8 Watts, 203; Jones v. Wood, 16 Pa. St. 25; Towles v. Fisher, 77 N. C. 437; Brunswick v. Crossman, 76 Me. 577. We do not see how we can construe the deed of Sally Kelton to Wood to have passed anything more than

her equitable life-interest in the property. The grant was in express terms to that effect. The explanatory words of intention point out the estates to which the deed refers, and might be resorted to, if there were any ambiguity in the description; but they cannot enlarge the grant, nor do they import an intention to execute the power. The reference to the deed to Mountain, where an intention to execute the power is explicit, tends to negative such an intention in the present deed, where there is no reference to the power. The deed is simply a quitclaim deed of her interest in the property, and can carry nothing more than the interest she then had. That interest terminated with the death of Sally Kelton, and consequently the defendant has no title to the property in dispute by the deeds under which she claims title. Judginent for plaintiff for possession.

(69 Md. 77).

SMITH V. TOWERS.

(Court of Appeals of Maryland. August 17, 1888.)

For majority opinion, see 14 Atl. Rep. 497.

ALVEY, C. J., (dissenting.) I am quite aware that dissenting opinions are often regarded as useless and ungracious work; but, with my settled convictions in regard to the principles involved in this case, I cannot do otherwise than enter my dissent from the opinion of the majority of the court; and I think it proper to state the reasons of that dissent. This is an attachment proceeding instituted to reach and subject to condemnation the rights and interests of Robert I. W. Garey, the debtor, accruing under his father's will,— such interests being in the hands of a trustee, in whom the legal estate in the land is vested, and whose duty it is, by the terms of the will, to receive and pay over the annual rents and profits of the estate to the son for life. This right and estate of the son is limited by the testator, thus: "That he [the trustee] shall pay or cause to be paid unto my son, Robert I. W. Garey, as the same may accrue, the net rents, income, and profits arising from said farm and property, after deducting such sums of money as may be necessary to satisfy and pay the taxes and assessments levied thereon, and needful repairs to buildings and fencing; and also a sum sufficient to purchase fifteen hundred bushels of lime during each year for the space of twelve years, to be applied to the fields of said farm as they are cultivated in corn; the said net rents, income, and profits to be paid to the said Robert I. W. Garey, (into his own hands, and not into another, whether claiming by his authority, or otherwise,) so long as he, the said Robert I. W. Garey, shall live; and from and after the death of him, the said Robert I. W. Garey, then in trust," etc. It is insisted, on the part of the debtor, the devisee for life, that the right and estate devised to him by the clause of the will just quoted cannot be made liable to the payment of his debts, and that he is entitled to receive and enjoy the rents and income of the estate for his life, in utter defiance of all effort by his creditors to reach such rents and income by legal process. And this contention is fully sustained by the opinion of the majority of the court, but to which I cannot for a moment assent. Upon the contention of the debtor, the beneficial devisee for life, two questions arise—First, whether the testator, by devising the legal estate to a trustee, with directions to pay over the rents and profits to the son for life, could lawfully impose a restriction upon the ordinary right of alienation of such equitable life-estate, or protect such estate from all liability for the debts of the son, without any cesser of the estate devised; and, secondly, whether, if the testator had such right, he has effectually exercised the same by the terms employed in the will.

1. As will be observed, there is no cesser or termination of the estate provided for, in respect to the devise to the son, in the event of attempted alienation, or seizure by creditors. The rents and profits of the farm are simply