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convert it from a note payable on demand to a note payable
on time. It was still a note due presently, and might be
sued at once by the payee, and the indorser of the prior
note might at any moment have placed himself in a position
to sue it.

The supposed analogy to notes ordinarily taken by savings
banks, insurance companies, &c., does not hold good. The
object in those cases is to loan money, to make investments ;
the object here was to give additional security to a loan
previously made and long since overdue, and which, we may
add, was of a doubtful character. In the former cases the
payee contemplates a present loan of money to continue for
an indefinite time in the future ; in the latter he is endeavor-
ing to collect a loan previously made. It may be a breach
of fair dealing to attempt to collect a note of the former
description at once, but it by no means follows that it
would be such a breach to attempt to collect one of the latter
description. Moreover, the very object of making a note
payable on demand is that the holder may collect it at any
time if he sees good reason for doing so ; and, legally speak-
ing, he is the sole judge of the sufficiency of the reason ;
and that applies to the- notes referred to as well as to the
note in this case ; so that the analogy, even if it exists, or
so far as it does exist, does*not avail the defendants.

2. The defendants' intestate, when he indorsed the note,
wrote over his signature the following words — ^*' Notice of



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JANUARY TERM, 1888. 671

Continental Life Ins. Co. v. Barber.

protest waived." The defendants contend that the waiver
does not dispense with presentment for payment and a
demand therefor. This may be conceded for the purposes
of this case, for the court below has found that when the
note became due " it was presented for payment at the office
of the plaintiffs in Hartford, where the same was payable,
and payment was then and there required and refused."

The claim that the indoi-ser, notwithstanding the waiver,
was entitled to notice of non-payment, cannot be sustained.
A protest, being evidence of presentment for payment and
a demand and refusal, in mercantile languslge stands for the
thing which it proves ; so that when notice of protest is
waived notice, of that which a protest signifies is waived.

3. It is insisted that the plaintifiCs' claim is ban*ed by the
statute of limitations. Within six years after the right of
action accrued the indorser died. The court of probate,
pursuant to the statute, allowed six months for the presenta-
tion of claims. Within that time this claim was presented.
Another statute requires a creditor to commence a suit
against the estate within four months after notice that his
claim is disallowed. This suit was commenced within that
time, but when it was commenced more than six years had
elapsed from the time the right of action first accrued.

We think the claim is not barred. The statutes relating
to the settlement of estates were manifestly designed to put
all claims upon an equal footing. Their practical effect is
to bar some claims in a much less time than the general
statute does, and in other cases, as in this case, the time may
be somewhat extended. The extension of time however
can do no injustice, and is not a sufficient reason for having
different claims against the same estate governed by differ-
ent statutes. It is much better that the same statute and
the same principles should govern all alike.

This question was determined by this court adversely to
the defendants in Bradley v. Fai7, 48 Conn., 375. We refer
to the reasons there given without repeating them here.

There is no error in the judgment of the court below.

In this opinion the other judges concurred.

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672 HARTFORD DISTRICT.



Barnes v. Barnes.



Jambs Babnbs vs. Geobob A. Babnes.

A j^her has the right to dispose of the services of his minor son daring
his minority; hut this right is not absolute. His own right to his services
being limited and qualified he can convey only a limited and qnalified
right.

One qualification of this right is, that it dies with the death ol the father.
, The son being emancipated by the death of the father, his obligation to
perform the contract made for him by the father is at an end; certainly
after he has arrived at years of discretion.

A father made an agreement with B that his son, then four months old,
should live with and serve him till he was twenty-one years old, and that
B during that time should provide him with food, clothing and schooling
as if he were his own child. The boy's mother was then dead and his
father died four years later. When the boy was nineteen years of age he
made an agreement with B that the latter should relinquish his rights
under the contract with the father, and should be released from the duty
of further supporting him, and that he would thereafter pay B three dol-
lars a week for his board while he remained with him. Held— 1. That
this agreement was a repudiation by the minor of the contract made be-
tween the father and B, — 2, That the board furnished the minor by B
being a necessary, he could recover reasonable compensation for it.

CrviL ACTION to recover for board furnished the defend-
ant, a minor; brought to the Court of Common Pleas of
Hartford County, and tried to the court before Bennett, J.
Facts found and judgment rendered for the plaintiff, and
appeal to this court by the defendant. The case is suffi-
ciently stated in the opinion.

0. JE. Perkins and N. E, Pierce^ for the apnellaat.

J". P. Andrews^ for the appellee.

Cabpbnteb, J. When the defendant, George A. Barnes,
was about four months old, his father and the plaintiff en-
tered into a contract in writing in which the father agreed
that George A. should serve the plaintiff faithfully during
his minority — the plaintiff agreeing to provide for him dur-
ing that time suitable food, clothing and schooling. Pursu-
ant to this agreement the defendant lived with the plaintiff



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JANUARY TERM, 1883. 678

Barnes v. Barnes.

until he was about nineteen years old, when he and the
plaintiff agreed that the contract should not be binding,
that he should thereafter be entitled to his earnings, and
that the plaintiff should be entitled to receive three dollars
per week for his board while boarding with him. Of this
agreement due notice was given to Fenn, the other defend-
ant, who had been appointed guardian to the said George
A., the father having died when he was about four years
old.

The court below found that the defendant was indebted
to the plaintiff in the sum of $297, and rendered judgment
for that sum.

On the trial the defendant claimed, as matter of law, that
the contract between the plaintiff and the father of the de-
fendant was a valid contract and could not be abandoned by
the agreement between the plaintiff and George A. Barnes.
The court ruled otherwise and the defendant appealed.

That a father has a right to dispose of the services of his
minor son during minority is not disputed ; but this right
is not absolute. As his right to the services of his son is
limited and qualified, it necessarily follows that he conveys
only a qualified right. The more important qualification,
and the only one we need now to refer to, is, that the
father's right to the services of his son dies with the
father. That event emancipates the sou, and his obliga-
tion to perform the contract made for him by the father
is at an end. In this case, the father being dead, the son
was at liberty to repudiate the contract, certainly after
arriving at years of discretion.

The question is not whether the minor was legally capa-
ble of making a valid contract with the plaintiff, but it is
rather whether that agreement amounted to a repudiation of
the contract made with the father. We are clearly of the
opinion that it did.

It will be observed also that this caae differs from those
cases, cited by the defendant's counsel, in which the minor
during the lifetime of the father attempted to repudiate the
contract made by the father. Hence those cases have no
application.



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674 HARTFORD DISTRICT.

Simmons v. Hubbard.

The contract having been repudiated by the minor ceased
to be of obligation on either party, and the plaintiff was no
longer liable to furnish support to the minor. He therefore
has a right to recover for the board furnished, that being a
necessary which the minor could lawfully bind himself to
pay for. It does not follow that any contract which the
minor might have made for his board would be enforced by
the court, as he might have made an improvident one ; but
in this case it is clear that the amount which he agreed to
pay was only a reasonable one, and we must assume that
the court below so regarded it.

There is no error in the judgment.

In this opinion the other judges concurred.



Mabt L. Simmons vs. Chablbs H. Hxtbbabd and

OTHBBS, EXECTJTOBS AND TbUSTEBS.

A testator, leaving a large estate and no chUdren, gave to a sister all the
income of the property during her life, and after her death an annuity of
$1,400 a year with the use of his dwelling house to a niece, and after
some further small bequests the residue of his estate for the establish-
ment of a school. By a codicil made later on the same day that the will
was made, he gave to 8 for her life f350 a year. Held, that this annuity
began to run from the death of the testator, and not from the death of
the sister to whom he had given the whole income for life.

Held also, that the deferred payments would draw interest.

And held that, in a suit brought by 8 against the trustees, in which the
plaintiff asked for a judgment giving a construction to the will, and for
a recovery of the amount due to her imder it, the expenses of the litiga-
tion were not to be taken out of the estate, but only ordinary costs taxed.

Civil action against the executors of and trustees
under the will of Isaiah Pratt, to recover the amount of an
annuity given the plaintiff, and praying for a construction of
the will and an allowance of all the costs of the litigation
out of the estate ; brought to the Superior Court in Middle-
sex County. Facts found and case reserved for advice.
The case is sufi&ciently stated in the opinion.



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JANUARY TERM, 1888. 676

Simmons v. Hubbard.
X. E. Stanton^ for the plaintiff.

J. Phelps^ for the defendants,

Paedbe, J. Isaiah Pratt of Essex died in 1879, aged
sixty-five, childless and unmarried, disposing of an estate
amounting to about $98,000 by a will dated in 1875. Of
the legatees named therein Mary Pratt is his sister, a widow
and about seventy-eight years of age ; Mary L. Simmons
and Mary Simmons were friends.

By the second and third clauses of the will the testator
bequeathed his entire estate to trustees, who are directed to
pay the income therefrom to his sister Mary Pratt, semi-
annually during her life ; by the fourth and fifth, after her
death to pay an annuity of fourteen hundred dollars to his
niece Mary P. Nott, with the use of his dwelling house
while she remains unmarried ; by the sixth to expend five
hundred dollars in fencing a burial lot and thirty-five dol-
lars annually upon the lot and fence ; by the seventh to
insure and repair the dwelling house; by the eighth to
expend three hundred dollars annually for instruction in
singing ; by the ninth to expend annually the remainder of
the income for the support of a school. By a codicil exe-
cuted upon the same day he directs the payment of three
hundred and fifty dollars annually to the plaintiff, Mary
L. Simmons, during life.

She asks the court to compel the trustees to pay the
annuity from the death of the testator; and the case is
reserved for the advice of this court.

The defendants insist that the will and codicil are to be
construed as one instrument ; that if possible all provisions
shall be operative ; that a clearly expressed intention is not
to yield to an ambiguous one ; that the next of kin are not
to be disinherited without an express devise or necessary
implication ; that when the general intent is clear and it is
impracticable to give effect to all of the language of the
will expressive of some special intent, the latter must yield
to the former ; that when the intention of the testator is



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676 HARTFORD DISTRICT.

Simmons v, Hubbard.

ascertained with reasonable certainty, it shall absolutely
govern ; and that the bequest to the plaintiff, read in the
light of these rules, is not to take effect until the death of
Mary Pratt.

The bequest ib of an annuity ; of a payment for every year
of the annuitant's life, reckoning from the day of the cre-
ation of the annuity, thei^e being no postponing clause.
The will speaks from the death of the testator ; that event
brings the annuity into existence. It is expressed to be for
the life, and therefore for every year of the life, of the
donee. It is conceded by the defendants that the annuity
will be payable after the death of Mary Pratt. But in the
will proper the income from the entire estate is after that
event appropriated to other uses; and this supposes the
preservation of the capital intact ; therefore the bequest of
the annuity by the codicil is in direct conflict with that for
the school. Both cannot stand ; whatever shall be paid to
the annuitant must be taken from a fund previously devoted
to some other use ; it is to be taken either from Mary Pratt,
or from the school, or from both. The rules of construc-
tion brought to our notice are as appropriately and as com-
pletely the defence of the school against the annuitant as
they are of Mary Pratt ; and yet it is admitted that they
are no defence at all for the school.

It is quite certain that, immediately upon the execution
of the will, it came to the mind of the testator that he had
disposed of his whole estate in forgetf ulness of two friends ;
of two women ; one of whom he had habitually spoken of
as his niece and whom he had from time to time pecunia-
rily assisted, and for both of whom he desired to make
provision after his death ; that he determined so to modify
the will at once as to make it express his intention in their
behalf; that he adopted the easy method of the codicil;
that he did not intend to write anything which could
stand in the presence of his gift to Mary Pratt and of that
to the school ; that he did intend to write something
directly in conflict with one or both — ^to diminish one op
both in behalf of the annuitant ; in short, that he intended



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JANUARY TERM, 1883. 67T

Simmons v. Hubbard.

to put the codicil to its appropriate use, namely, to change
some provision in the will. The bequest to the annuitant
stands neither upon inference nor construction ; it is &amed
of words as positive and unambiguous as is that to Mary
Pratt ; and it is no more certain that the testator intended
to give to the latter merely the entire income than it is that
he intended to make a small gift to the former ; in this
respect neither bequest takes precedence of the other.

There is no disinheritance of the heir in behalf of strang-
ers in a sense and to a degree offensive to the law, for the
estate exceeds $90,000 ; the testator is childless ; the annual
income of a sister is in a small measure reduced in behalf
of a friend. We are forced, therefore, to give the annuity
place in the testator's plan for the distribution of his estate ;
to diminish either the absolute gift to Mary Pratt, or the
absolute gift to the school, or both. The testator has sug-
gested no distinction ; on the contrary, he has used clear
words, the legal effect of which is to diminish both ; and it
is to be noticed that he well knew how to protect the be-
quest to his sister from the effect of any other which he
might make, when such was his desire ; for he was careful
to provide explicitly that the annuity to Mary P. Nott
should not take effect until after the death of his. sister. In
expounding a will the meaning of plain words is the testa-
tor's intention ; and that intention must be the law of the
case.

There is no propriety in allowing the expenses of the
litigation to be taken out of the estate.

The Superior Court is advised that the annuity became
payable to the plaintiff during each year of her life subse-
quent to the death of the testator ; that deferred payments
draw interest ; and that costs are to be taxed only as in aa
ordinary action at law.

In this opinion the other judges conourred.
Vol. l.— 87



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6T8 FAIRFIELD COUNTY.



State «. OwiL



SUPEEME COURT OF ERRORS.

HELD AT BRIDGEPORT, FOR THE COUNTY OF
FAIRFIELD,

ON THE SBOOKD TUESDAY OF MARCH, 1883.

Present,

Park, C. J., Carpenter, Pardee, Loomis ajsd Gsan^

OER, Js. ,



The State w. Isaac Gaul.

'nieact of 1879, (Session Laws, 1879, ch. 44,) provides that <*any person
• who shidl ravish and carnally know any female of the age of ten years
or more against her will and consent, or who shall carnally know and
abuse any female child under the age of ten years, shall be imprisoned
in the state prison, Ac*' Held, that in an indictment charging a rape, it
is not necessary tliat it be alleged that the person on whom it was com-
mitted was of ten or more years of age.
And that it is sufficient to allege that it was ** against her will," that alle-
gation being equivalent to '* against her will and consent.

Indictment for rape ; m the Superior Court. Tried to
fte jury before Beaird%Uy^ J. Verdict guilty; motion in
*n:efl* of judgment for the insufficiency of the indictment;
motion overruled, and appeal by the defendant to this
court. The case is fully stated in the opinion.

J. C. Chamberlain^ for the plaintiff in error.

F. L. Holt, for the State.



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MARCH TERM, 1888. 6T»

state V. Gmol.

Granger, J. The defendant wae convicted in the Supe-
rior Court of a rape upon the person of one Lucy Bates,
and after a motion in arrest for the insufficiency of the in^
dictment had been overruled, he appealed to this court on
tiie same ground.

The indictment is in the usual form for that offense at
common law as well as under our statute, except in that it
alleges that the act was done ^'c^inst her will," instead of
** against her will and consent," which the defendant con-
tends are not equivalent, and that a distinct allegation of
the want of consent is indispensable. But we cannot
regard this fuller allegation as expressing anything more
than the allegation "against her will." Surely if it was
against her will it was against her consent, and if done
against her consent was presumably against her will. The
two words are substantially synonymous when used in this
connection, and either wiUiout the other is sufficient. In-
deed the word "consent" is spoken of by some legal
writers as the less comprehensive of the two. Wharton's
Am. Crim. Law, § 1141. The form in Swift's Digest con-
tains only the word " will." 2 Swift's Dig., 826.

But the defendant contends that the act of 1879, (Ses-
sion Laws, ch. 44,) which changes the range of punishment
which may be inflicted for the crime, and makes a distinc-
tion in the matter of consent between the case of a female
of the age of ten years or more, and that of a female child
under ten years, makes it necessary that the i|idictment
should state whether the person on whom the offense has
been committed is of ten years or more of age, or is under
that age. But this allegation can not be important where,
as here, the act is charged to have been done against the
will of the person. If she had been under ten years of age
that fact would make it unnecessary to prove that the act
was against her consent, and it might witB more reason be
claimed ihsA the indictment should in that case allege the
fact that she was under ten that the defendant might know
that the state would not take upon itself the burden of
proving the want of consent; but where the indictment



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580 FAIRFIELD COUNTY.

state of Connecticut v. Wright.

alleges that the act was done against her will the state
gives notice by the allegation that it takes upon itself the
proof of that fact. There has always been a distinction
made between persons of the age of consent and those not
80, and while ten years of age has generally been treated as
marking the lowest limit of the age of consent, yet the
common law nile includes persons of greater age where
from special immaturity or incapacity they were still unable
to give what the law would regard as consent. Our statute
merely fixes definitely the age of ten as that of capacity to
consent. The statute may be regarded as substantially in
affirmance of the common law, simply appljring in a definite
way a well-settled common law principle as to the applicar
tion of which in particular cases there was room for uncer-
tainty. This being so, there is no reason why an indict-
ment for rape at common law should not be good for an in-
dictment under our statute, where the offense has been
committed on a person of ten or more years of age.
The indictment is sufficient and there is no error.

In this opinion the other judges concurred.



The Statb of Connbotioxtt vs. Edward T. Wright

Ain> ANOTHBR.

The defendants, TTand Jf, one as principal and the other as surety, gaf«
bond to the state in $6,000 that TT should faithfully discharge the duties
of county commissioner. By statute it was a part of the duties of the
board of county commissioners, which consisted of three members, to act
upon the granting of licenses for the sale of liquors in the several towns
of the county, and to receive and pay over to the towns the fees paid
upon the granting of such licenses. After W had assumed the office his
associates made him treasurer of the board, and as such he received
money paid for licenses, and appropriated to his own use over $5,000 of
it In a suit brought by the state on the bond it was held —

1. That IPs acts as treasurer were covered by the bond.

2. That, the statute (Acts of 18T7, ch. 129,) requiring the bond to be given
to the state, the action could be maintained by the state.



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MARCH TERM, 1888. ^ 581

State of Connecticnt v. Wright

Mf the surety, filed a cross-complaint asking that the other commissionen
be made parties defendant, and that, if a judgment was rendered against
him, he might have judgment against them for their proportionate share
of the damages. Held that it could not be entertained.

The Practice Act does not permit a defendant to bring in as co-defendants
parties whose legal relation is only to himself, and whose presence or
absence can not affect the judgment to be rendered as between himself
and the plaintiff.

Civil action on a bond given to the state for the faith-
ful discharge by the defendant Wright of his duties as
county commissioner; brought to the Superior Court.
Cross-complaint filed by the defendant Mead, surety on
the bond. Demurrer to cross-complaint by plaintiff. De-
murrer sustained, and cross-complaint dismissed. Facts
found and judgment rendered by the court (^Beardsley^ t7.,)
for the plaintiff. Appeal to this court by the defendant
Mead. The case is sufficiently stated in the opinion.

J. B. Curtis and L. Warner^ for the appellant.
L. D. Brewtter and S, Tweedy^ for the appellee.

E. W. Seymour^ for certain parties cited in on the crosa-
oomplaint.

Pardee, J.— On June 29th, 1878, the defendants, E. T.
Wright as principal and Thomas A, Mead as surety, exe-
cuted their bond to the State of Connecticut in the penal
sura of $5,000, upon condition that the said Wright should
faithfully discharge the duties of the office of county com-
missioner for Fairfield County for the period of three years
from July 1st, 1878. In the last nttmed month Wright was
by his two associate commissioners made custodian of the
money paid to them under the statute for licenses to sell
spirituous liquors. Of such money during the year next
ensuing he received and misappropriated more than $5,000.
The state instituted this suit upon the bond and had judg^
ment for the sum named therein. The defendant Mead
appealed.



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£82 ^ FAIRFIELD COUNTY.

State of Connecticut v, Wright.

It is hk elaim that the commissioners acted in two dw-
tinct spheres, one public and general, the other incidental ;
and that the default of his principal is in the latter and not



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