and four daughters, Catherine E., then the wife of Samuel Owen, Susan, Ann (appellant) and Louisa. The widow of the deceased died May 13, 1876; Louisa died January 2, 1876; Susan died December 31, 1900, and Catherine E. Owen died May 14, 1901. Susan and Louisa never married, nor has Ann up to the present time. Catherine E. Owen left surviving her three daughters, Evania F. Mackall and the appellees, Kate D. Owen and Jessie Owen Cugle. The property produces an income of $11,000 or $12,000.

The question in the case is whether appellant succeeded to the whole estate upon the death of Catherine E. Owen, or whether the children of the latter, appellees, were the successors of their mother.

The will gives small legacies to two nephews, and disposes of "all the rest and residue and remainder of the testator's estate to Susan Cruit in trust (1) for his wife for and during her life, and to permit her to take and receive the whole income thereof; (2) in trust, as to testator's real estate, to his daughters equally, share and share alike, for and during their respective lives, and from and after their death in trust for the child or children of each of my said daughters, then alive, in fee simple, such child or children, respectively, to take the share to which his, her or their parent was entitled. And if any of my said daughters shall die without having been married, her share shall pass to her or their surviving sisters or sister for life equally, and upon her or their death the same shall vest in her or their child or children in the same manner and for the same estate and pass on her or their death, as her or their original share or shares."

We do not think it is difficult to discern the intention of the testator. There is very little ambiguity in the will. If ambiguity exist it is in the pronoun "their" in the provision "and from and after their death in trust for the child or children of each of my said daughters then living in fee simple, such

shall be appointed by the Circuit Court so that the trusts hereby created shall be at all times preserved and carried into effect.

child or children respectively to take the share to which his, her or their parent was entitled." It is contended by appellant that it is manifest from these words and others in the will that it was drawn by a skillful hand to create a joint tenancy in the daughters of the testator, and cases are cited in which wills containing such words have been construed, it is contended, as giving such effect. We might review these cases and those cited in opposition by appellees if the will in controversy were less clear in its meaning. Provision for his daughters and equality between them were clear and definite in the mind of the testator. One daughter was married and that the others might be was contemplated, and that children might result therefrom. This idea is especially prominent and is carefully expressed and provision is made for such children. The contention of appellant militates against this idea. It would leave grandchildren unprovided for. If such had been the intention of the testator, we think, he would have explicitly expressed it. It was not so natural an intention as the other. It is not the first impression of the will, and can only be made out by rigidly giving plurality to the pronoun "their" in the provision "and from and after their death in trust for the child or children of each of my said daughters, then living, in fee simple." But the word is qualified and made several by what precedes it. The devise is to his daughters "for and during their respective lives." It is qualified also by what follows it. One of the daughters of the testator was married, the others were not, and might not be, and anticipating this possibility the testator provided that if any of his daughters should die without having been married her share should pass to the survivors. In other words, it was only upon the death of a daughter "without having been married" (and without issue possibly), that her share was to pass to her sisters or sister. We also agree with the courts below that the trust continues.

The concluding paragraph of the will is:

"And lastly I appoint my said daughter Susan Cruit sole

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executrix of this my last will and testament. And if my said daughter shall die or from any cause should become unable to act in the trust, I direct that a trustee shall be appointed by the Circuit Court so that the trusts hereby created shall be at all times preserved and carried into effect."

Decree affirmed.

OFFIELD v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

ERROR TO THE SUPREME COURT OF ERRORS OF THE STATE OF CONNECTICUT.

No. 59. Argued October 25, 1906.-Decided December 3, 1906.

Where plaintiff in error contends that the purpose for which his property has been condemned is not a public use; that the condemnation is unnecessary in order to obtain the desired end; and that the proceedings and state statute on which they are based violate the due process clause of the Fourteenth Amendment and impair contract rights, Federal questions are involved and, if not frivolous, the writ of error will not be dismissed. It is within the power of a State to provide for condemnation of minority shares of stock in railroad and other corporations where the majority of the shares are held by another railroad corporation if public interest demands; and the improvement of the railroad owning the majority of stock of another corporation may be a public use if the state courts so declare, and the condemnation under §§ 3694, 3695, Public Laws of Connecticut, of such minority shares of a corporation is not void under the impairment clause of the Constitution either because it impairs the obligation of a lease made by the corporation to the corporation obtaining the shares by condemnation, or because it impairs the contract rights of the stockholder.

78 Connecticut, 1, affirmed.

THE facts are stated in the opinion.

Mr. Edward H. Rogers and Mr. W. H. H. Miller, with whom Mr. Charles K. Bush was on the brief, for plaintiff in error: The statute is based upon the principle of eminent domain,

203 U. S.

Argument for Plaintiff in Error.

and the real, and indeed the only, reason which the state court had to justify its decision was that every railroad is a public trust, and that the State can exercise the power of eminent domain so far as may be necessary to secure the property taken being put to the best use in fulfilment of the trust for a public use.

The right of eminent domain can only be legally exercised when the property taken is taken for a public use. The right is not a creature of grant. It is one of the inherent powers of sovereignty. In some States, as in Connecticut, it is recognized by the constitution, § 11, art. I, const. of Connecticut; Farist Steel Co. v. Bridgeport Co., 60 Connecticut, 278, 291.

The condemnation of the stock is not a taking for a public use. The question of what is a public use is always one of law. Cooley's Const. Lim., 774; Re Niagara Falls v. Whirlpool R. W. Co., 108 N. Y. 375; In re Split Rock Cable Road Co., 128 N. Y. 408; 1 Lewis on Em. Domain, § 163.

The use of a thing is strictly and properly the employment of the thing in some manner, and this employment must be something more than a merely incidental public benefit. Cases supra and Re Eureka Basin Warehouse Co., 96 N. Y. 42; Varner v. Martin, 21 West Va. 534, 552.

Unless it be proposed to subject the property taken to a use public in its nature not already within the charter powers of the New Haven and Derby Railroad Company, the power of eminent domain should not be exercised. There can be no necessity for or propriety in the taking unless the rights of the public with reference to the property taken are to be enlarged, and that directly and actually, and not indirectly and constructively. For definitions of public use see Evergreen Cemetery Association v. Beecher, 53 Connecticut, 551; Avery v. Vermont Electric Co., 75 Vermont, 235; Re Rhode Island Suburban Ry. Co., 28 R. I. 457, 461; Berrien Springs Water Co. v. Berrien, 133 Michigan, 48. Black v. Delaware & Raritan R. R. Co., 24 N. J. Eq. 455, distinguished.

There is no right in the majority holders of a corporation

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to extinguish the rights and stock of a dissenting minority by taking their shares at a valuation. If a majority of the stockholders of the New Haven and Derby Railroad Company had undertaken to transfer the defendant's stock against his wishes, they could have been enjoined by him. Clearwater v. Meredith, 1 Wall. 25; Stevens v. Rutland & B. R. R. Co., 29 Vermont, 545.

The actual taking was dependent upon a finding by a judge of the state court that the purchase would be for the public interest, which finding is an exercise of the judicial power which is vested in the Superior Court of the State of Connecticut, or a judge thereof, by the constitution of that State. New Milford Water Co. v. Watson, 75 Connecticut, 237; Norwalk Street Ry. Co.'s Appeal, 69 Connecticut, 576, 601, 608; Betts v. Connecticut Indemnity Association, 71 Connecticut, 751, 755.

Neither can the decision of the Connecticut court be justified on the ground that the proceeding is a dissolution proceeding. A taking for a private use is unlawful, and even if there can be any lawful taking under the statute, it is inseparably blended in the application with the unlawful one; where the proceeding shows upon its face, as this does, two distinct uses or purposes, one lawful and the other not, which are so inseparably blended as not to be separable, it cannot be sustained. 7 Ency. of Pl. & Pr., 527; Chicago & N. W. R. R. Co. v. Galt, 133 Illinois, 657.

The statute as applied in this case impairs a contract.

The statute being an invalid enactment under the Constitution of the United States, this court has jurisdiction of this writ of error.

It is a taking for a private purpose. Traction Co. v. Mining Co., 196 U. S. 239; C., B. & Q. R. R. Co. v. Chicago, 106 U. S. 226, 241; Missouri R. R. Co. v. Nebraska, 164 U. S. 403, 417.

A State has no constitutional right to say that a private use is a public use, or to pervert the doctrine of eminent