Connecticut. Supreme Court of Errors.

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bonds held by the company.
The snm to be deducted, npon each share of the stock, in the tax list of a

shareholder, should bear the same proportion to the market value that

the entire investment in taxable real estate bears to the entire surplus of

assets above liabilities.

Appeal from the doings of the board of relief of the
town of Hartford in a matter of taxation ; taken to the
Superior Court in Hartford county. The facts were found
and the cas6 reserv^ed for advice. The case is sufficiently
stated in the opinion.

B. D. Subhard^ for the plaintiff.

S. 0. Prentice^ for the defendant.

Pabdbb, J. On October Ist, 1881, the chartered capital
of the Travelers Insurance Company of Hartford stood at
9600,000, divided into six thousand shares. Not now
regarding this capital as a liability, it had a surplus of assets
beyond debts amounting to $1,435,957^^^, a portion of
which was then invested in real estate in other states than
this, on which it had paid taxes assessed during the pre-
vious year. Another portion waa invested in real estate in
this state. Neither the money paid in as capital nor the
income therefrom can now be distinguished from the accu-
mulated profits of the business, and therefore cannot be
traced into the investment in real estate. Still another por-
tion was invested in bonds of the United States, which were
exempt from taxation. The Session Laws of 1877, chap.
47, § 1, provide that "shares of the capital stock of any
bank, national banking association, or insurance, turnpike,
bridge, or plank road company, owned by any resident of
this state, shall be set in his list at their market value, in
the town in which he may reside ; but so much of the ci^i-
tal of any such company as may be invested in real estate,
on which it is aasessed and pays a tax, the assessed value

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Batterson v. Town of Hartford.

of such real estate shall be deducted from the market value
of its stock, in its returns to the assessors." The plaintiflE
owned fifty shares, and he requested the assessors to allow
such proportionate reduction from the market value as he
might be entitled to upon these facts. The assessors made
a reduction for the investment in real estate in this state,
but refused to make any for that in real estate in other
states or in United States bonds. He appealed to the
Superior Court ; and that court asks our advice.

First, as to the claimed exemption upon bonds of the
United States. The tax is not upon the property of the
corporation ; it is explicitly upon the shares ; that is, upon
the right of the shareholder to receive his proper portion of
net profits earned by the exercise of the corporate fran-
chise, and of assets remaining after payment of debts upon
dissolution. That he is not the owner of any portion of
the government bonds or of any other property held by the
corporation; that his right is a distinct and independent
property in himself, quite separate from the ownership by
the corporation of its assets ; and that the state may assess
a tax against him upon it at its full value, notwithstanding
the fact that the corporation is the owner of untaxable gov-
ernment securities, is so firmly established by judicial
determination that it is not now to be considered an open •
question. Van Allen v. Assessors^ 8 Wallace, 573 ; People
V. Commissioners^ 4 id., 244; National Bank v. Commonr
wealth, 9 id., 359.

Second, as to the exemption of real estate taxed in other
states. The question here is, what is exempted by the
statute? The words are, "so much of the capital of any
such company as may be invested in real estate on which
it is assessed and pays a tax ; " and there is no limitation
as to its location. The defendant insists that whenever the
legislature uses the expression " real estate " in connection
with the subject of taxation, it is by virtue of an unvary-
ing rule of interpretation to be held as if there were added
to it the words, "in this state." But, first, these are not
words of taxation, they are words of exemption; they

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JANUARY TERM, 1888. ««l

Batterson v. Town of HartfOhl.

specify the measure of relief to be giren to the sharehoMkr
paying a tax upon his right to receive dividends from
profits accruing to a corporation when the property which
earns the dividends is otherwise taxed. And again, in the
act of 1872, (Gen. Statutes, p. 170, § 16,) the legislature,
in behalf of mutual insurance companies, exempted the
amount invested in real estate liable to ^^ taxation in tUs
state ; " not deeming the words *' real estate " sufficient to
convey its meaning. The form of this exemption in the
Session Laws of 1872, chap. 88, was this: "Real esta^
which is required to pay town or city taxes in this state ; "
and the revisers brought the limitation " in this state " into
the revision of 1875. The act of 1868, (Session Laws of
1868, chap. 68,) permitted railroads to deduct " real estate
* * not used for railroad purposes, located in this state,'*
from the market value of their stock. In the revision of
1875, p. 168, § 6, the words "located in this state" do not
appear. But we are unable to say whether the legislature
thought them superfluous or intentionally removed a restric-
tion. In the act of 1881, (Session Laws of 1881, chap. 49,
§ 3,) the legislature in behalf of each mutual insurance com-
pany allows an exemption to the extent of the "mark^
value of its real estate liable to taxation in this state,*'
repeating the limitations of 1872 and 1875.

Therefore, in this matter of granting exemption, the leg-
islature has not so long, so often, and so invariably, used
the words "real estate" in instances in which we have
been made judicially to know that it intended only real
estate in this state, as that the suggested rule of interpreta-
tion has the force of a statute. We think that the plaintiff
is entitled to the exemption precisely as the legislature has
written it.

The corporation had assets beyond debts to a certain
amount. This surplus stands as its capital in the sense in
which that word is used in the statute under consideration ;
presumably the market value of its shares rests upon it ; a
portion of it is invested in real estate paying taxes in this
state and in other states. The legislature intended to
Vol. l.— 36

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Peek's Appeal from Probate.

relieve the shareholder from the assessment upon the yalue
of his right, so far as any portion of that surplus of corpo-
rate property which was the foundation of the market value
wa« invested in real estate and had paid a tax. Therefore
the Superior Court is advised that the deduction to be
»ade in beh^ of the plaintiff upon each share of his stock
fihould bear the proportion to the market value, which the
investment in real estate bears to the surplus of assets ; and
that the investment in government bonds does not entitle
him to any deduction.

la this opinion the other judges concurred.

Wallace E. Peck's Appeal fbom Probate.

The reyoeation of a former will by the mere execution of a later one, is
ambulatory^ and does not take effect till the second will becomes opem-
tive by the death of the testator.

And the revocation of the second will will revive the former.

How it would be where the second will in express terms revokes the former;
Q^osre. The weight of authority is in favor of the doctrine that the re-
voking clause does not. take effect till the will becomes operative by the
death of the testator.

^^e question is materiaUy affected by the statute of 1821 with regard to the
revocation of wills, which was passed since the decision of this court in
James v. Marvin, 3 Conn., 576.

ITbat statute has been somewhat changed in* its phraseology, in the later
jrevisions, but without essentially changing its meaning.

Appeal from a decree of a court of probate disallowing a
^ecument oflfered as the will of Lucy A. Peck ; taken to
the Superior Court in Hartford County, and tried to the
court before Hovey^ J. Facts found and probate decree
affirmed, and motion in error by the appellant. The case is
suifi^atly stated in the opinion.

H. 'S. Barbour and C. W. CHUette^ for the plaintiff in
^errofy-cited 1 Wms. on Exrs., 197 ; 1 Jarm. on Wills, 186 ;

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JANUARY TERM, 1888. 568

Peck's Appeal from Probate.

2 Am. Lead. Cas., 482; 1 Redf. on Wills, 808, 328, 830, 875;
4 Kent Com., 581; G-oodright v. Glazier, 4 Burr., 2612;
Harwood v. Goodright, Cowp., 87, ^; Welch v. Phillips,

1 Moore P. C. C, 299, 802; Outto v. Gilbert, 9 id., 181;
Brown v. Brown, 8 El. & Blackb., 875 ; In re Brown, 4 Jur.
N. S., 244 ; Belden v. Carter, 4 Day, 66 ; Witter v. Matt,

2 Conn., 67 ; James v. Marvin, 3 id., 576 ; Card v. Grinman,
6 id., 164, 168 ; Boudinot v. Bradford, 2 Dall., 266 ; Lawson
V. Morrison, id., 286; (7oZtnw v. Warford, 20 MaryL, 857;
Marsh v. Marsh, 8 Jones Law, 77 ; Flintham v. Bradford,
10 Penn. St., 82, 90; Randalls. BeaUy, 81 N. J6r. Eq.,
648 ; Jfatter (?/ Simpson, 56 How. Pr. R., 125 ; Conn. Civil
Officer, (ed. 1880,) 400.

B. JD. Hubbard and F. L. Hwngerford, for the' appellees,
cited Gen. Statutes, p. 870, § 7 ; 1 Jarman on Wills, (5th
ed.,) 386; Powell on Devises, 585; 2 Archb. N. P., 441;
1 Redf. on WUls, 850, 851, 861, 864; 2 Greenl. Ev., §§ 681,
688 ; 4 Kent Com., 650 ; Brotm v. Brown, 8 El. & Blackb.,
885 ; Moore v. Moore, 1 Phill. Eccl. R., 406, 412 ; Powell v.
Powell, L. Rep., 1 Prob. &Div., 209; Wood v. Wood, id.,
809 ; Dempsey v. Lawson, L. Rep., 2 Prob. Div., 98 ; Bel-
den V. Carter, 4 Day, 75 ; Witter v. Mott, 2 Conn., 67 ; In re
Johnson^ s Will, 40 id., 588 ; Laughton v. Atkins, 1 Pick., 545 ;
Jovies v. Murphy, 8 Watts & Serg., 275, 295 ; Rvdy v. Ulrich,
69 Penn. St., 177, 188; Walton v. Walton, 7 Johns. Ch.,
269; Ludlum v. Otis, 15 Hun, 418; Bohanon v. Walcott,
1 How. (Miss.), 886 ; Smith v. McChesney, 15 N. Jer. Eq.,
859 ; Exr. of Larrabee v. Larrahee , 28 Venn., 274 ; State ex
rel Brown v. Crossley, 69 Ind., 208, 211.

Caepentbr, J. In 1875 Lucy A. Peck made a will,
which was duly executed. In 1880 she made another,
which was inconsistent with the former. Not long after-
wards she died. The later will has never been found;
the former was carefully preserved by her and found among
her valuable papers after her death. The new will did not
expressly revoke the old. The testatrix was advised by the
scrivener who wrote the last will to destroy the first ; but it

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Peek's Appeal from Probate.

was not done, and when he left the room the two wills were
lying npon the table. No one now living knows of the exist-
ence of the last will after that time.

Upon these facts the Superior Court, as a conclusion
of law, found the issue for the appellees, and affirmed the
judgment of the c6urt of probate rejecting the first will.
The case is before us on a motion in error.

The defendants in error contend that the execution of
the latter will operated immediately as a revocation of the
former, and that the former was not revived by the destruo-
tion of the latter. The Superior Court sustained this claim.

Prior to 1821 any will might be revoked in writing, and
it was not necessary that the writing should be executed
with every particular formality. It was then held that a
revocation contained in another will was not ambulatory,
but took efiFect immediately, and that the will revoked could
not be revived without a re-publication. Javie% v. Maroin^
3 Conn., 676. In 1821 a statute enacted that ^^ no devise of
real estate shall be revoked otherwise than by burning,

* * or by some other will or codicil in writing, declaring
the same, signed by the testator in the presence of three or
more witnesses, and by them attested in his presence.'*
That section required that a written revocation should be
in another will ; and so the law continued until the revision
of 1849, in which the words "declaring the same" were
omitted and have not since appeared in the statute. In that
revision the section concluded as follows — "or by some
other will or codidl duly executed according to this act."

In 1875 the phraseology was further changed, so that the
whole section now reads — "No will or codicil shall be
revoked, except by burning, canceling, tearing, or obliter-
ating it by the testator, or by some person in his presence,
by his direction ; or by a later will or codicil." The change
in the words however did not change its meaning, so far as
it relates to the question now under consideration.

Prior to 1821, as well as since, the law was so that a later
will when it took effect by the death of the testator revoked
a prior inconsistent one. That proposition ia not quee-

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JANUARY TERM, 1888. 5<^

Peck^s Api>eal from Probate.

tioned. If Jamen y. Marvin is an authority before the
statute, a subsequent will, containing no revocatory clause^
did not, during the life time of the testator, revoke a prior
will. In respect to that point we do not think the statute
was intended to make any change.

'^In the case cited the court in fact decided two questions:
— ^Ist, that a clause in a will revoking former wills toolf
effect immediately ; -and 2d, that if the subsequent will con-
tained no such clause it did not affect former wills until it
became operative.' The first question was directly before
the court, the second was only incidentally involved.

Now the second question is directly raised and the first is
incidentally involved. In the former case the statute was
not in force, now it is. The statute comes before us now
for the first time for a construction. And "it must be
remembered that the statute changes the aspect of the first
question. It is not now what it was when Jame% v. Marmn
was decided. Then any written declaration to that effect
revoked a will irrespective of any statute and without
regard to the death of the testator. Now the statute
requires that the writing, in order to have that effect, must
itoelf be a will or codicil, and executed with all the formal-
ities required for such instruments. Under the statute it
may be claimed, and the claim sustained by very respecta-
ble authorities, and supported by reasoning of considerable
£E>rce, that the will, even though it contain a clause ex-
pressly revoking former wills, must take effect as a will
before the revoking clause will be operative. Thus it will
be seen that this precise question as it now presents itself
was not decided in James v. Marvin^ and has never beej^
decided by this court. We do not propose to decide it now,
but as it is very difficult to consider fully and satisfactorily*
the real question in this case without diseasing to some
extent the other question, we will briefly refer to the state
of the law on that question.

The law as laid down by Hoshb^, C. J., relating to
the effect of a revoking clause in a subsequent will, is
questioned by an eminent writer on the law of wilto.

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Peck's Appeal from Probate.

1 Redfield on WiUs, 828. After referring to the Connecti-
cut case he says — " This doctrine has an air of plausibility*
from the fact that an instrument of revocation alone would
unquestionably have this effect. But that would show
a present purpose of becoming intestate, carried into effect
as far as practicable before death. But the making of a
will, with a revocatory clause, is made dependent, in some
sense, upon the subsequent will going into operation. And
there is ordinarily no purpose of having the revocatory
clause operate except upon that condition. The whole in^
stoiment is, therefore, ambulatory, and when destroyed it
all ceases to have any operation." And such seems to be the
doctrine of Laughton v. Atki'M^ 1 Pick., 585, Reid v. Bor-
land^ 14 Mass, 208, Simhery v. Mason ^ Myde^ Comyns,
461, Hyde v. ^de^ 8 Chan. Rep., 155, and Onions v. Tyrer^

2 Vern., 742.

On the other hand James v. Marvin^ we are inclined to
think, has been regarded as law by the profession under the
statute for more than sixty years. And there are many
other cases which seem to assume that such is the law with-
out directly deciding the point.

The weight of authority seems to be in harmony with tht
views expressed by Mr. Redfield. We refer to it not for
the purpose of deciding the point, but for the purpose of
applying the reasoning and the authorities cited to the
point we are now considering; and we think they apply with
much greater force to a will not containing the revocatory
clause. We are decidedly of the opinion that if we hold
that the execution of the second will operated to revoke the
first, we shall go counter to the prevailing current of author-
ity, and produce a greater discordance between our own law
and the laws of other jurisdictions than now exists ; a result
certainly which it is desirable to avoid.

We jjso think that to. be the most reasonable view. The
testatrix by executing the second will evinced no intention
to become intestate, but rather a contrary intention. By
destroying the last will and carefully preserving the first'
she affords satisfactory evidence that she intended until the

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Continental Life Ins. Co. v. Barber.

very last to die testate, and that that should be her will.
In the absence of an express provision to that effect we
cannot presume that the legislature intended that the
mere execution of a will should in all cases revoke a prior
will. Such a construction would in many cases defeat the
manifest intention of the testator. The statute requires a
" later will or codicil." We think that means an operative
will or codicil.

In Jame% v. Marmn Hosmeb, C. J., says: — "The revo-
cation effected by a will merely is not instantaneous, but
ambulatory until the death of the testator; for although
by making a second will the testator intends to revoke the
former, yet he may change his intention at any time before
his death." This doctrine is consistent with the statute;
and although the case did not call for it, yet it has been
understood to be the law of this state for more than sixty
years. We see no reason for changing it, even if the law
in some jurisdictions is different.

We would say however that we have carefully examined
the cases cited by the counsel for the appellees, and find
that many of them are cases in which the later wills became
operative as wills ; and of course the language of the courts
must be interpreted with reference to that circumstance,
and cannot properly be applied to a case like this.

The judgment of the Superior Court was erroneous and
is reversed.

In this opinion the other judges concurred.

The Continental Lifb Insitbancb Company vs. Abbib
H. Barbeb and another. Executors.

To discharge a surety by giving time to the principal, the creditor must

« have put It out of his power for the time to proceed against the prlndpaL

A note of $8,000, which was Indorsed by B for the accommodation of th«

maker, with waiver of notice, fell due and was not paid. The maker

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Continental Life Ins. Co. v. Barber.

soon after paid $4,000, and gave his note on demand for $4,000, payable to
the order of the holder of the original note, with interest payable semi-
annually, and secured it by a mortgage, the indorser having no knowledge
ci the transaction. This note and mortgage the holder accepted as addi-
tional security for the balance of the original note. Held not to discharge
the indorser.

The facts that the collateral note was secured by a mortgage, and that H
was on interest payable semi-annually, did not affect the case. There
still existed the right to sue at any time on the original note.

Where an indorsement is made with ** notice of protest waived," it is a
waiver of notice of non-payment

Tbe statute of limitations bars a suit upon a promissory note unless
iMOUght within six years. Another statute requires that a suit be brou^t
by a creditor of a solvent estate within four months after a refusal of
pa3rment by the executor or administrator. A note was presented to the
executors of a deceased person, the estate being solvent, within six
months limited by the probate court for the presentation of claims, and
on refusal of payment by the executors suit was brought against them
upon it within four months after such refusal. At this time more than
six years had elai>sed since the right of action first accrued. Held that
tlie suit was not barred.

Action upon a promissory note ; brought to the Superior
Court in Hartford County. The defendants pleaded the
statute of limitations, and that the indorser (of whom they
were executors) had been discharged by time given the
maker. The case was tried to the court before Hovfy^ «/.
Facts found and judgment rendered for the plainti&. The
defendants appealed. The case is sufficiently stated in the

T. M. Malibiey for the piaintifib.

(7. (7. Sill^ for the defendants.

Cabpenteb, J. This is an action against the executors
of the estate of the late Gardner P. Barber, deceased, who,
when in life, indorsed a note for $8,000. The Superior
Court found the facts and rendered judgment for the plain-
tiff. The defendants appealed. The record presents three

1. Was the indorser discharged by the act of the plaintiff?

The note fell due July 20th, 1874. On the 22d of October,

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JANUARY TERM, 1888. 569

Ck)ntinental Life Ins. Co. v. Barber,

1874, the maker paid $4,000, which was duly indorsed on
the note. In December following, being urged to pay thei
balance, and not being able to do so, he executed another
note for the sum of $4,000, payable to the order of the
plaintiff, on demand with interest semi-annually, and exe-
cuted a mortgage of certain real estate to secure the payment
thereof; and, having caused the same to be recorded,
delivered it with the note to the plaintiff, without the
knowledge of Barber. The plaintiff accepted the note and
mortgage as additional security, but not in payment or
satisfaction of the original note or any part thereof.

The claim is that the legal effect of accepting the note
and mortgage was to give time to the maker of the note for
$8,000, and so discharge the indorser.

The law is well settled, hardly requiring repetition, much
less the citation of authorities, that in order to discharge the
indorser by giving, time to the maker there must be a con-
tract to that effect, express or implied ; that is, the holder
must have put it out of his power for the time being to pro-
ceed against the maker. The indorser cannot be deprived,
of the right, even for a short time, to pay the holder and
proceed forthwith against the maker for his indemnity. The
holder may not, during the time for which he has agreed to
extend credit, bring a suit, for that would be a breach of his
contract. He may not accept payment from the indorser
and thereby subject the maker to an immediate suit by the
indorser, for that would violate, if not the letter, certainly
the spirit of his contract. Hence such a contract operates
to discharge the indorser.

But here is no express contract, and we think none can
be implied. It is expressly found that the second note waa
taken as additional security for the balance due on the
original note and not in satisfaction of it nor as a substitute
for it. Both notes were liable to be sued at any time, the
one being overdue and the other on demand. Of course the
indorser could have paid the £rst note and could at once
have brought a suit against the maker. He was also enti-
tled to the additional security, and could at once hay&

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Continental Life Ins. Co. v. Barber.

brought a suit on that note, and could also have proceeded
to foreclose the mortgage. Instead of being prejudiced by
the transaction it was, in theory at least, a benefit to him.

The only features of the transaction which give any color
to the defendants' claim are the facts that the collateral
note, although on demand, was on interest payable semi-
annually, and was secured by a mortgage ; and it is urged
with considerable force that these circumstances indicate an
understanding between the parties that that note was to
run at least for six months. They certainly indicate that
the parties contemplated that it might run six months, but
that possibility does not change the character of the note and

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