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if not, we must remand the case for a more specific finding.

There are two considerations which incline us to regard
the finding as sufficient. 1. The case has been heard upon
its merits without objection from either party, or suggestions
from the court. 2. Both parties have assumed that both
facts exist, and have argued the case upon that assumption.

A careful consideration of the facts stated leads us to the
conclusion, if not as a necessary inference, yet as a reasona-
ble and proper one under the circumstances, that the estate
was in peril, and that the plaintiffs at their own expense
rescued it from its liability.

Benedict in his life time assumed a contingent liability
for Mitchell, Vance & Co., a New York corporation, of
which he was a stockholder, to the amount of $600,000;
which liability was on his estate at the time of his decease.
The corporation was unable to meet the paper endorsed by
Benedict as it matured, without renewals, and no renewals
could be had. That finding seems to exclude the supposi-
tion that the corporation could meet its paper, unless aided
by the estate or by some one interested in it. In less than
six years the corporation failed. That it was on the verge
of insolvency, if not actually insolvent, is evident from the
fact that it was unable to meet its maturing liabilities.
Something must be done, or that paper will inevitably be
presented against the estate. It necessarily follows that
the estate was in imminent peril. Presentation meant pay-
ment, and payment by the estate meant insolvency.

Did the plaintiffs relieve it of its peril? In about one
month after Benedict's death the plaintiffs guaranteed bonds
of the corporation to the amount of $144,000. That was


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DECEMBER, 1889. 208

Benedict v. Chase.

done, as it is found, *^ for the purpose of enabling the corpo-
ration to renew its paper without such endorsement and
guarantee." It is also found that " the bonds were used by
said Mitchell, Vance & Co. in taking up their obligations
which said Benedict had endorsed or guaranteed." A por-
tion of the bonds were outstanding when Mitchell, Vance
& Co. failed, and the plaintifiEs were obliged to pay thereon
$47,699. Had they advanced $144,000 in cash instead of
guaranteeing bonds, and the money had been used to take
up the indorsed paper as it matured, it would have conclu-
sively appeared that they relieved the estate. Is the fact
that they accomplished the same result by loaning their
credit any less conclusive? In either case it may be said
that time is of some importance ; that insolvency may have
overtaken the corporation after the death of Benedict ; so
that it is uncertain whether the plaintiffs in fact benefited
the estate. The reply is that there is no presumption to
that effect ; on the contrary, if insolvency originated subse-
quently, the presumption is that the defendants by an ap-
propriate plea would have called the attention of the court
to that fact. In the absence of any claim on that subject,
the court is not bound to take into consideration mere possi-
bilities. It is possible that the property of the corporation
may have been destroyed by fire with no insurance ; that
they met with heavy losses otherwise, and the like; but
these are not subjects for conjecture, but are matters to be
proved. The court is not bound to inquire whether the de-
fendants have a defense which they have not chosen to in-
terpose. It is proper and according to the usual course for
us to take the fa^ts as the parties present them to us; and
we can safely interpret them as both parties do, more espe-
cially if they are hardly surceptible of any other rational
interpretation. We conclude therefore that the estate was
in great peril and that the plaintiffs rescued it.

The time had come when something must be done. The
estate could not legally take the risk. The administrators
personally might do so, but they were not bound to, and
could not be expected to. Two thirds in interest of the


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204 DECEMBER, 1889.

Benedict v. Chase.

heirs could and did lend their aid ; the remaining third, be-
ing minors, did not. The plaintiffs did not act officiously or
unreasonably. On the contrary, it may be characterized as
good business management. The result proved that while
there was a loss, yet that it was doubtless much less than
the estate would have suffered had nothing been done. This
is a suit to reimburse the plaintiffs fi-om the assets of the
estate. The minor heirs defend. The case is reserved for
the advice of this court.

What is it that the plaintiffs ask ? They do not ask, as
may be supposed from the defendants' brief, that the de-
fendants may be compelled to pay a part of the expenses of
a losing venture ; neither do they ask any compensation for
the risk assumed. They simply ask that the fund which
they have saved by a successful venture may refund to them
the expense before distribution.

The first defense interposed, is a demurrer, raising the
claim that the Superior Court has no jurisdiction ; that it
is one of those matters within the jurisdiction of the court
of probate. Without saying that the court of probate could
not have passed upon this matter, we are inclined to regard
it as a disputed claim against the estate, not, it is true, an
ordinary claim, but still a claim on which a suit may properly
be brought to the Superior Court, especially as it is claimed
that the administrators are liable at law. Whether an es-
tate being settled as a solvent estate is indebted or not,
legally or equitably, when it is disputed, is a question for
the courts. If an administrator incurs expense in the course
of his duty, the question whether he is to be repaid from the
estate is a question for the court of probate. If, in this
case, the administrators had done what the plaintiffs did, the
question whether they should be reimbursed would be a ques-
tion for the court of probate. Other parties having volun-
teered, they bring a suit claiming that the administrators are
liable at law, and if not, then in equity. The question of
legal liability seems clearly to be a question for the Superior
Court. We think that the question of liability in equity is
also within the jurisdiction of that court.


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DECEMBER, 1889. 205

Benedict v. Chase.

The next question is — are the administrators liable at law ?
They had no power to bind the estate in a matter of this
kind. Any previous request, or subsequent promise, would
have been of no avail. What they could not do they could
not authorize others to do ; and it is not claimed that they
have made themselves personally liable.

There can be no remedy at law against the defendant
heirs, for they were incapable of contracting, and made no
contract in fact. No legal duty rested upon them, so that
there is no ground on which a request can be implied. For
the same reason they are not liable to a contribution at law.

Have the plaintiffs any equitable remedy? It will be
noticed that the defendants' brief deals almost exclusively
with a contract liability, or a personal liability on some other
ground. An equitable claim upon the fund, as distinguished
from a claim against the defendants personally, is hardly al-
luded to. We agree with them that no judgment against
them in personam should be rendered ; but whether the
plaintiffs are not entitled to be reimbursed from the fund
which they have saved is quite a different question. No
case has been referred to, and we are unable to find any
directly in point. A simple statement of the case shows
such strong equities that authorities are hardly needed, and
little else need be said by way of argument.

There are analogous cases however, which in principle
strongly support the plaintiffs' claim. When a cargo at sea
is in peril a portion of it is frequently sacrificed to save the
balance. In such cases the doctrine of general average com-
pels the freight that is saved to contribute towards making
good the loss. Here the whole estate was in peril. The
plaintiffs voluntarily sacrificed their own private funds to
save it. They in fact saved it. Why should the defendants
share in the whole estate as though it had never been in
peril, and compel the plaintiffs to bear the whole burden ?

So also with the doctrines of apportionment and contribu-
tion. They are often applied, especially in cases of burdens
upon real estate, where, ex oeqao et bono^ the party is entitled
to relief. See Story's Equity Jurisprudence, §§ 477, 478,


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206 DECEMBER, 1889.

Benedict v. Chase.

479, and 488. Few cases can be supposed in which the equi-
ties are stronger than in the present. Take another class of
cases ; a fund, in which several persons are interested, is at-
tached, or involved in litigation, requiring a heavy expense
to defend it, or settle its status^ and the like. Usually the
fund is charged with the expenses, and the balance only is
distributed. ThesQ cases and others that might be men-
tioned are decided upon principles that are fairly applicable
to the present case. We do not believe it will be unjust to
apply them to this case.

Once more. Suppose these administrators, as they might,
although not bound to, had risked their private fortunes in
doing precisely what these plaintiffs did, and had thereby
saved the estate at an expense to themselves of $50,000 ;
would these heirs — plaintiffs and defendants — have been
hearc^to say — "You did it voluntarily, no law required it;
therefore you must bear the loss while we will enjoy the es-
tate ? " Is it so that an administrator, prompted by no duty,
but simply by a desire to benefit the estate, incurs an ex-
pense whereby it is in fact benefited, may not be reim-
bursed ? The case before us can hardly be distinguished in
principle from the case supposed. The administrators did
not act, but with their approval the plaintiffs did, and jus-
tice requires that they should be reimburaed.

The Superior Court is advised to render judgment for the
plaintiffs, to be paid from the estate.

In this opinion LooMis, Prentice and J. M. Hall, Js.,
concurred ; Beardsley, J., dissented.


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DECEMBER, 1889. 207

Clai'k'8 Appeal from Probate.

Ida E. Clark and another's Appeal erom Probate.

New Haven and Fairfield Cos., Oct. T., 1889. Andrews, 0. J., Carpbm-
TBB, Looms, J. M. Hall and Thayer, Js.

Gen. Statutes, § 632, provides that the real estate of an intestate which
came to him by descent or devise from any kinsman, shall, if there be
no brothers or sisters of the blood of the ancestor from whom the es-
tate came, nor their representatives, go equally to the children, if any,
of such ancestor and those who legally represent them, with a proviso
that if the intestate be a minor and '* shall not leave any lineal descend-
ants, or brother or sister of the whole blood, or any descendants of such
brother or sister, or any parent* such estate shall be distributed
equally to the next of kin of the blood of the ancestor from whom it
came. A minor died intestate seised of real estate which came to her
by devise from her maternal grandfather, and left no husband, child,
mother, brother or sister, nor any descendant of a brother or sister,
but left a father, and a maternal aunt, daughter of the maternal grand-
father. Held—

1. That the father did not take by implication under the proviso.

2. That the case did not come within the proviso, inasmuch as the intestate

left a father, and was therefore not within the class of minors de-
scribed in it.

8. That the estate went to the maternal aunt under the provisions of the
body of the statute.

A proviso in a statute is to be constnied strictly, and takes no case out of
the enacting clause which is not fairly within Its terms.

[Argued October 30th— decided December 30th, 1889.]

Appeal from a probate decree distributing tlie intestate
estate of Lina A. Hawes, deceased ; taken to the Superior
Court in Fairfield County, and heard before Torrance^ J.
Facts found, and judgment rendered for the appellee, and
appeal by the original appellants.

F. W. Marshy for the appellants.

L. D. Brewster and JBT. B. Scotty for the appellee.

Thayer, J. Lina A, Hawes, a minor, died intestate,
seised of certain real estate which came to her by devise


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208 DECEMBER, 1889.

Clark's Appeal from Probate.

from her maternal grandfather. She left surviving her no
husband, no children or descendant of any child, no mother,
and no brother or sister or any descendant of any brother or
sister. The appellee is her father and the appellant is her
maternal aunt, the daughter of the grandfather. The Supe-
rior Court decided that the father is the proper distributee
of the real estate. Whether that decision is correct is the
question presented by this appeal.

Section 632 of the General Statutes, by which this ques-
tion is to be determined, after providing for the distribution
of all the real and personal estate of all intestates who leave
no children or any legal representatives of them, proceeds
as follows : " but all the real estate of the intestate which
came to him by descent, gift or devise from any kinsman,
shall belong equally to the brothers and sisters of the intes-
tate and those who legally represent them, of the blood of
the ancestor from whom such estate came or descended,
and in case there be no brothers and sisters or legal repre-
sentatives as aforesaid, then equally to the children of such
person or ancestor and those who legally represent them,
and if there be no such children or their representatives,
then equally to the brothers and sisters of such person or
ancestor and those who legally represent them, and if there
be none such, then it shall be divided in the same manner
as other real estate ; provided that when such intestate shall
be a minor and shall not leave any lineal descendants or
brother or sister of the whole blood, or any descendants of
such brother or sister, or any parent, such estate shall be
distributed equally to the next of kin to the intestate of the
blood of the person or ancestor from whom such estate came
or descended; and if there be no such kindred, then to the
next of kin of the intestate generally," etc.

It is clear that the real estate in question belongs to the
appellant, as the child of the ancestor from whom it came to
the intestate, unless there is something in the proviso to
give it a different direction. In Austin v. Wight^ 88 Conn.,
405, it was held that the act of 1866, which was embodied
in the revision of 1875 in the form of this proviso, did not


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DECEMBER, 1889. 209

Clark's Appeal from Probate.

affect the distribution of ancestral real estate of an intestate
minor who left a parent. That act, in terms, referred to
both ancestral real estate and ancestral personal estate, and
it is conceded that if the proviso now refers to both it does
not affect the distribution of the estate in controversy. But
it is claimed in behalf of the appellee that it refers to ances^
tral real estate only, and that as a consequence the parent
becomes the distributee of such estate. There is nothing in
the language to warrant this conclusion. The purpose of
the proviso manifestly is to take the ancestral estate of a
certain class of intestates out of the operation of the preced-
ing provisions of the statute, and to give to that estate,
whether it be real or real and personal estate which is re-
ferred to, a different direction from that it would take but
for the proviso. The class of intestates to whose estates di-
rection is thus given are not minors generally, but those
only who do not " leave any lineal descendants, or brothers
or sisters of the whole blood, or any descendants of such
brother or sister or any parent.'* An intestate minor who
leaves a parent is not within the class. His ancestral estate
therefore does not take the same direction as that of intes-
tates within the class, nor is it diverted from the kin of the
ancestor to the parent by the express language of the pro-
viso. If the parent takes therefore it must be by implica-
tion. In the case of Austin v. Wiffhtj already referred to,
it was claimed that by including the parent among those
whose non-existence was to divert the estate, there was a
necessary implication that the parent, if in existence, would
inherit ancestral real estate ; but the court said that while
there was some ground for the implication claimed, it was
not a necessary implication, because the statute embraced
ancestral jt?er«cmaZ estate as well eisreal. Attention has been
called to this language, and it seems to be a part of the ap-
pellee's claim that the parent now takes by necessary impli-
cation if real estate only is embraced in the proviso. It is a
sufficient answer to this claim to say that a proviso in a
statute is to be construed strictly and takes no case out of
the enacting clause which is not fairly within its terms.
Vol. liVin.— 14


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( 58 210
I 08 iU

_67 394,

210 DECEMBER, 1889.

Hull V, Holloway.

United State% v. Dickson^ 15 Pet,, 141. There is no necessity
for such an implication. By the statute, excluding the
proviso, the parent would take the ancestral real estate be-
fore all kindred of the ancestor more remote than his brothers
and sisters and their representatives. By the proviso the
more remote kindred of the ancestor, being kin to the intes-
tate of the blood of such ancestor, would take before the
parent, had there been no exemption made in the parent's
favor by naming him. There was a reason therefore, if real
estate only is referred to, for naming the parent among those
whose non-existence changes the order of distribution.

It follows that the appellant, and not the appellee, is the
proper distributee of the real estate in question.

There is error in the judgment complained of.

In this opinion the other judges concui-red.

Hadlai a. Hull, Tbiisteb, vs. Gideon E. Holloway
and others,

New London Co., Oct. T., 18S9. Andrews, 0. J. Carpenter, Loomis,
Beabdsley and J. M. Hall, Js.

A testatrix gave her estate to a trustee to hold and manage daring the lives
of her husband and son and the minority of the children of the latter,
and directed that he should from time to time pay to her husband " so
much of the income and principal as he might require for his personal
use, upon his written request;'' and that after his death so much of
the income as was necessary should be expended for the maintenance
of her son and his children, the property upon the termination of the
trust to be divided among her heirs at law according to the statute
with regard to intestate estates. Held —

1. That the life estate given the husband was not enlarged to a fee by the

provision for the payment to him of '* so much of the Income and prin-
cipal as he might require for his personal use."

2. That it was not intended by this provision to give the husband whatever

he might demand, but only what was needed for his support, after he
had used whatever other means of support he might have.


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DECEMBER, 1889. 211

Hull V* Holloway.

8. That the trustee was to use his judgment as to what should be paid to
the husband, and the payment was to be made only on a concurrence
of his judgment with that of the husband. If they differed as to the
necessity, or the property should be wrongfully applied to the hus-
band's use, the court would on application protect the rights of all
parties interested.

4. That it was the duty of the trustee to allow the fund, so far as not

needed for the support of the husband, to accumulate during the life
of the latter.

5. That after the death of the husband the trustee was to apply so much

of the income as was necessary for the support of the son and his chil-
dren during the life of the son and the minority of the children, at the
end of which time it was to be distributed according to the will.

[Argued October 15th— decided October 30th, 1889.]

SXTIT fof the construction of the will of Mary E. Hollo-
way; brought to the Superior Court for New London
County, and reserved for the advice of this court. The case
is fully stated in the opinion.

jBT. -4. JSmH, for the plaintiff.

B. Wheelerj for the defendant G. E. Holloway.

A. Brandegee, for the defendants G. E. Holloway, Jr., and
Vera G. Holloway.

J. M, Hall, J. This action is brought by the trustee
under the will of Mary E. Holloway, deceased, to obtain^
for his guidance a construction of certain clauses of the will.
The part of the will giving rise to the questions in the case
is as follows : —

"AH the real estate of which I die possessed, and all my
personal property, except such as is hereinafter named and
specially bequeathed, I give, devise and bequeath to Patrick
H. Hutchinson, of the city of Boston, within the county of
Suffolk and Commonwealth of Massachusetts, in trust for
the following uses and purposes, namely ; to be by him held,
managed, invested, re-invested and expended for the benefit,
maintenance and support of my husband, Gideon E. HoUo-


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212 DECEMBER, 1889-

Hull V, HoUoway.

way, during his life, and, after his death, for the benefit,
maintenance and support of my son, Gideon E. HoUoway,
Junior, and of any child or children of my said son, which
may be born hereafter, as the fruit of any marriage by him
hereafter contracted.

"This trust is to continue during the lives of my said
husband and my said son, and during the life and minority
of any of my said son's children, born as aforesaid. I here-
by give said trustee full power and authority to mortgage,
sell and convey any and all of my said real estate, whenever
in his judgment it shall be for the advantage of the benefi-
ciaries under this trust; but he may so mortgage or sell
said real estate during the lifetime of my said husband only
with his written consent, I direct that said trustee shall
from time to time pay and transfer and convey to my said
husband, for his use and benefit, so much of the income and
principal of the above named property as my said husband
may require for his own personal use, the same to be paid,
transferred and conveyed to my said husband upon his
written request.

" I direct that no part of said trust fund shall be used to
pay any existing or future indebtedness of my said husband
or of my said son, neither shall said trust fund be liable in
any way for any debts of my said husband or son now out-
standing, if any, or for any that hereafter may be contracted
by either of them.

" And it is my will that after the death of my said hus-
band, the income of property then remaining in the hands
of said trustee and belonging to said trust funds, or so much
of said income as said trustee may deem necessary, shall be
expended by him for the benefit, maintenance and support
of my said son, and of his child or children of any marriage
to be by him hereafter contracted, if any.

" Any portion of said income not so expended may, at the
discretion of said trustee, be added to the principal of said
fund, or be reserved to meet any extraordinary require-
ments of those for whose benefit said trust is created.

" I direct that upon the termination of said trust by the


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DECEMBER, 1889. 218

Hull «. HoUoway.

death of my husband and son and the death or majority of
my son's child or children as aforesaid, the property held
under the provisions of said trust be divided among my
heirs-at-law, according to the statutes of the state of Con-
necticut for the distribution of intestate property, excluding
therefrom the issue of my son's first marriage."

The property covered by the trust is a piece of real estate
situated in the city of New London, and subject to a mort-
gage. The beneficiaries under the trust are Gideon E. Hol-
loway, husband of the testatrix, Gideon E. Holloway, Jr.,
her son, and Vera G. Holloway, her granddaughter.

The trustee, in his complaint, propounds the following
questions : —

1st. What authority said trustee has to sell said real estate
and under what restrictions he must act ?

2d. What money or proceeds of said sale said trustee can
lawfully pay to said Gideon E. Holloway under said will ?

Sd. Whether said Gideon E. Holloway has the unqualified
right to demand of said trustee a sale, and the payment to
him of the whole or any part of the proceeds of said sale, or

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