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The question here submitted to the jury was not as to a substantial performance of the entire contract, but whether, with the defective woodwork excluded from consideration, the contract was otherwise substantially performed. By this instruction the court took away from the jury the question of fact, whether there had been a substantial performance of the entire contract, and decided itself that certain deficiencies were not material. The question as to defective woodwork, as we have said, should have been submitted to the jury, to be determined as a part of the general question of substantial performance of the entire contract. This erroneous view of the function of the jury is repeated and emphasized in the affirmance of the plaintiff's fourth request to charge. Such an instruction to a jury could not fail to be prejudicial to the defendant, by depriving him of the right, that was his, to have the jury consider the whole question of substantial performance, including the determination of the fact whether any alleged cicficiency was important and material or not. We do not think that the error here pointed out was rendered innocuous by the other portions of the charge, in which the learned judge correctly stated to the jury the law in regard to substantial performance.

It should not be passed without notice that the learned trial judge affirmed defendant's fourth point, as follows:

"No one is obliged to accept defective and improper work, and if new work is so constructed as to be so defective and improper, as not in suh. stantial performance of the contract therefor, the purchaser has a right to refuse to accept the same, and the contractor cannot, after such rejection. patch up or repair such defective and inferior work, and then compel the purchaser to accept the same; neither can be recover the contract price therefor, less the amount necessary to put such defective and improper work in proper condition.”

This is a very clear statement of what we think the doctrine applicable to the case in hand to be, and strengthens our confidence in the correctness of the view that we have taken, and, but for the opinion of the court on the motion for a new trial, it would suggest that possibly the view we have criticised was inadvertently taken by the learned judge who charged the jury. However this may be, we are of opinion that error in so vital a point as the one to which we have called attention cannot be passed over as unimportant, by reason of the correct and cogent statements of the law in other portions of the charge. We have carefully examined the authorities and cases cited in behalf of the defendant in error, but can find in none of them sanction for the proposition that, where the question in controversy is whether there has been a substantial performance of a contract, the court can take from the consideration of the jury, by deciding for itself, the question whether an alleged defect is material or immaterial to such substantial performance, or that the question in such case to be submitted to the jury is whether the contract in suit has been otherwise substantially performed, after the question of performance as to a certain portion thereof has been excluded from their consideration.

For the reasons stated, we are compelled to the conclusion that the judgment below should be reversed, and the case remanded, with directions for a new trial.

(113 Fed. 609.)

SHERMAN V. AMERICAN CONGREGATIONAL ASS'N et al.
(Circuit Court of Appeals, First Circuit. January 24, 1902.)

No. 382. 1. EXECUTORS-PRESUMPTION-PLEADING.

Where the bill, in a suit by an heir to recover a sum given as a legacy and alleged to have been wrongfully paid to defendant as legatee, fails to allege that the payment was not made at the time required by the will, or that an annuity on which such legacy was conditioned was not duly

paid, there is a presumption that such payment was properly made. 2. WILLS-LEGACIES-PLEADING--ConstruCTION.

Where the bill, in a suit involving the construction of a will giving certain property to a beneficiary on condition that the beneficiary should agree to pay an annuity to testator's wife, contains no allegation showing that the annuity is the prir cipal object of the bequest, it will not be held to be either superior or inferior to the other purpose or

the legacy. 3. SAME-COURTS-JURISDICTION.

Where the bill, in a suit which inrolves the construction of a will which was probated in Massachusetts, contains an indirect allegation that all the proceedings referred to have been approved by a Massachusetts probate court, but does not allege that the probate court ou its equity side construed the will, it does not show an adjudication which will defeat the jurisdiction of a federal court to construe the will, as a distinction is preserved in Massachusetts between the jurisdiction of the probate court, acting strictly as such, and having no power to construe wills, and its special equity jurisdiction, conferred by

statute, to construe such instruments. 4. CHARITABLE CORPORATION-POWERS.

The fact that a religious association has by its charter certain enumerated powers does not bar it from complying with the terms of a iegacy requiring it to pay an annuity, when such compliance is only incidental, and tends to the accomplishment of the substantial purposes

of its incorporation. 5. Wills-CONDITION SUBSEQUENT.

Where a will directs the payment of a certain sum to an association on the death of the testator, on condition that the association agrees to pay an annuity, the estate vests in the beneficiary on the death of the testa tor, when the condition imposed on the beneficiary is a' condition

subsequent. 6. SAMF.-CONSTRUCTION OF BEQUEST-CONDITIONS.

A condition in a bequest, requiring the legatee to pay an annuity to the wife of the testator during her life, is shown to be a condition subsequent. Appeal from the Circuit Court of the United States for the District of Massachusetts.

For decision of the circuit court, see 98 Fed. 495.
Roger M. Sherman, for appellant.

Walter Bates Farr (M. F. Dickinson, on the brief), for appellee the American Congregational Ass'n.

Dudley P. Bailey (Ralph W. Foster, on the brief), for appellees Tenney and Cheever.

W. Frederick Kimball (Walter Bates Farr, on the brief), for appellee Burwell.

Before PUTNAM, Circuit Judge, and ALDRICH and LOWELL, District Judges.

PUTNAM, Circuit Judge. This case will be found to concern no question except the construction of the will of Isaac P. Langworthy. It is presented on a demurrer to the bill, which was dismissed in the circuit court. Mr. Langworthy died on January 5, 1888, leaving a widow, Sarah W. Langworthy. She died on April 22, 1893, also leaving a will. The parties made defendants, besides the American Congregational Association, are the executor of the will of Mr. Langworthy and the executors of his widow's will. The complainant claims to hold title under Mrs. Langworthy.

A question is made whether all the parties in interest have been brought into the case; and it is also maintained that the bill should have been brought by the executors of Mrs. Langworthy's will. The first question, if a substantial one, could probably be met by reframing the bill, for which leave would, of course, be granted. Therefore, in view of the conclusion which we have reached, it does not require our attention. As to the second, inasmuch as the bill charges that the executors of the will of Mrs. Langworthy are in collusion with the executor of the will of her husband, so that the case may fall within the usual class entitling a party in interest to proceed without the joinder as a coplaintiff of the person in whom the nominal title vests, it may, perhaps, by amendment, be put in proper form in this respect also, if it is not already.

Mr. Langworthy's will, omitting the formal parts, was as follows:

"First. I direct my executors hereinafter named to pay all my just debts and funeral expenses.

"Second. I devise and bequeath to my dearly beloved wife, Sarah W. Langworthy, all of my real and pers nal estate, wherever the same may he situated, of whatever the same may consist, except as hereinafter provided.

“Third. I direct my executors to pay over to the American Congregational Association, as soon as may be convenient after my decease, the sum of ten thousand dollars (unless previous to my death I shall have deposited said sum with said association), upon condition that said association agrees to pay to my wife, in quarterly payments during her life, the sum of $400, and upon the death of my said wife to pay over semiannually the net income of said $10,000, and any increase thereof, to the library committee of said association; the same to be expended by said committee in the purchase of local histories, genealogies, commentaries of the Bible, and ecclesi. astical histories for said library.

“Fourth. I hereby nominate, as executors of this my will, my said wife, Sarah W. Langwirthy, and my friends Charles H. Trist and Edward L. Burwell, both of said Chelsea, and request that they, and each of them, may be excused from giving any sureties on their official bonds as such executors."

Although Mr. Langworthy died in January, 1888, and Mrs. Lang; worthy in April, 1893, the legacy to the American Congregational Association was not paid until April 1, 1898. The bill gives explanation of the delay, and it charges no one with laches in that connection. It does not even allege when the association was advised of the fact of the legacy, or that it was ever so advised until payment was made to it. It is to be observed that the third clause of the will directed that payment be made as soon as might be convenient. The bill fails to show what was the condition of the estate, and whether, with reasonable efforts on the

no

part of the executor, it was convenient to make earlier payment. The ordinary presumption is that the executor properly performed his duty, and, in view of the absence of any allegation to the contrary, the presumption accordingly is conclusive on this record.

Neither does the bill state whether Mr. Langworthy's executor paid Mrs. Langworthy during her lifetime the annuity contemplated by the third paragraph of his will, but, as it was his duty to do so, the presumption is that the payments were made. Moreover, the failure of the bill to allege to the contrary requires us to so assume.

Veither does the bill contain any allegations from which we can ascertain whether the annuity to Mrs. Langworthy was the principal purpose of its third paragraph. As the matter stands, we must refrain from any construction based, in whole or in part, on any hypothesis subordinating either object to the other. Neither can we give a construction which would make the annual payment of $400 a mere charge on the legacy in the third paragraph. The purpose was to support the annuity by a valid agreement by the association for its payment, made either formally, informally, or by implication, so that it would be received by Mrs. Langworthy whether it exhausted the principal sum, or though the principal sum were lost.

The allegations of the bill fail to set out with proper details, or in the exact language known to the law, or in orderly sequence, the facts of the case. It is not easy to ascertain from the pleadings the grounds of the complaint, or what relief is intended to be asked. The bill shows enough to make it plain that it is claimed that the legacy to the American Congregational Association failed, because–First, it made no formal agreement to pay the annuity; and, second, because it had no power under its charter to give such an agreement. Making so much clear, it then alleges that the executor of Mr. Langworthy's will “assumed to sell the estate, real and personal," "in accordance with a pretended trust to apply the proceeds to pay” the legacy to the association. Inasmuch as the will establishes no trust, and gives the executor no authority to dispose of Mr. Langworthy's real estate in order to effectuate its purposes, and inasmuch as the bill fails to allege in a proper way that Mr. Langworthy left real estate, or left personal property, or how much he left of each, this portion of the bill is not intelligible, and must be disregarded.

It next alleges that the executor "sold property of great value, being personalty and land, which descended and passed under the will of Mr. Langworthy to Mrs. Langworthy, and other property, at a price far below its real value.” Here, again, comes the same want of sufficient allegations. So far as realty is concerned, for aught the bill properly shows the title passed to Mrs. Langworthy, and remains in her devisees or heirs, whichever the case may be; and the coniplainant, together with those, if any, interested with him in the estate of Mrs. Langworthy, have a full remedy at law by writ of entry, thus barring any jurisdiction in equity.

The bill next aileges that the executor “wasted said estate," without further explanation thereof, and without any details whatever; so that here, again, it is insufficient to call on any chancery court to exercise its jurisdiction. Again, it alleges that the executor "placed a cloud upon the title thereto"; meaning, probably, the real estate. If this expression were accompanied with sufficient details to enable a chancellor to perceive what was the nature of the cioud, and how it was placed on the estate, and, indeed, how an executor, without some colorable authority given him by the will, or without some alleged action of a probate court, could have accomplished this, it would, perhaps, have afforded a basis for jurisdiction in equity; but the bare statement here found fails to do so.

Consequently, all the allegations of the bill to which we have referred are useless for the purposes of this suit; and we are left to the remaining allegation, in connection with what we have already said, as to the claim that the American Congregational Association never agreed to the payment of the annuity, and had no power to make such an agreement. This allegation is as follows: “And paid over to said defendant the American Congregational Association the proceeds, to the amount of ten thousand dollars and upward." The effect is to limit the complainant's relief to the reclamation of this sum.

The bill contains an indirect allegation that all the proceedings referred to had been approved by the probate court for the county of Suffolk. If it had properly shown that the real estate of Mr. Langworthy had been sold by his executor under a license from the probate court, or that any personal property had been disposed of wrongfully, for an inadequate value, and if, also, it admitted that the proceedings of the executor in those respects had been approved by the probate court, it would follow that, as that court has normal jurisdiction over such proceedings, and over the executor's accounts growing out of the same, its action would have been res adjudicata. It would, therefore, be clear, whatever might be the jurisdiction of a federal court in the event there had been no action by the probate court, that such action having been taken, and the probate court having jurisdiction, its proceedings would have resulted in a full bar to the present bill, so far as such matters are concerned. The respondents, however, maintain that inasmuch as the bill alleges, although incidentally, that all the transactions to which it relates have been approved by the probate court, the questions of the construction of Mr. Langworthy's will, and of the validity of the payment of the legacy to the American Congregational Association, are likewise res adjudicata. It is, however, true that questions of the construction and effect of a will, or of any particular clause therein, stand, so far as the probate courts of Massachusetts are concerned, on an entirely peculiar basis. Under late statutes, on a special proceeding, the probate court, acting as an equity court, has jurisdiction to determine them; but the distinction between probate courts proceeding as such, and the same courts when exercising the statutory jurisdiction in equity, is a broad one, and is carefully preserved. Bennett v. Kimball

, 175 Mass. 199, 200, 55 N. E. 893; Green v. Gaskill, 175 Mass. 265, 56 N. E. 56). It

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