(113 A.) bank in the testator's necessary support. The Wills, p. 532. The authority cited in support balance of the estate in the hands of the of this statement (Shaftsbury v. Shaftsbury, conservator consisted of railroad stocks and 2 Vern. 747) does not, however, go farther bonds. The executor now has the Liberty than to suggest that, if the change be wrongBond bought by him as conservator. The fully or fraudulently made without the question submitted is whether the legatees knowledge or approval of the testator, there of the savings bank deposits take anything would be no ademption. by the bequests to them. "A legacy is specific when it is a bequest of a specific article of the testator's personal estate, distinguished from all others of the same kind; as, for instance, of a particular horse, or piece of plate, money in a purse or chest, a particular stock in the public funds, or a bond or other security for money." Loring v. Woodward, 41 N. H. 391, 394; Ford v. Ford, 23 N. H. 212. In Ford v. Ford, supra, conflict in the authorities is suggested as to whether the presumption in favor of ademption might be rebutted by evidence of a contrary intention, but the opinion approves the English rule that the only question is whether the specific thing remains or not at the death of the testator, and that the presumption of ademption is not to be rebutted by evidence of a contrary intention. The case, however, holds that, though certain changes were made by the testator in the form of the securities bequeathed, the change was not sufficient to require a holding that the legacy was adeemed. In short, the evidence did not satisfy the court the testator intended to revoke the gift made by the will. Chase v. Moore, 73 N. H. 553, 64 Atl. 21; Gardner v. Gardner, 72 N. H. 257, 56 Atl. 316; Spinney v. Eaton, 111 Me. 1, 87 Atl. 378, 46 L. R. A. (N. S.) 535. Whether the evidence of revocation furnished by a change in form of securities bequeathed can be rebutted by evidence as to the testator's intention in making the change or not, it is clear that there can logically be no ademption of the legacy unless the change is itself of such a character as to establish a change in testamentary intention. quently a change of which the testator was ignorant and which he did not authorize is not evidence of a change in such intent. See Wilmerton v. Wilmerton, 176 Fed. 896, 100 C. C. A. 366, 28 L. R. A. (N. S.) 401; Jenkins v. Jones, L. R. 2 Eq. Cas. 323. Conse [1] "Legacies which are specific are said to be adeemed, when the particular thing given is either wholly lost, destroyed, or disposed of by the testator during his life, or its form so changed as not to remain in specie. Thus, if the thing given as a specific legacy be sold by the testator, or otherwise disposed of during his lifetime, or its form be changed, it is lost or destroyed. So that, if the subject-matter of the legacy either ceases to be the property of the testator, or is so changed during his life as no longer to be susceptible of identification, the legacy is said to be adeemed or gone." 2 Red. Wills, P. 528; Gardner v. Gardner, 72 N. H. 257, 56 Atl. 316; Drake v. True, 72 N. H. 322, 56 Atl. 749. "It is well settled that, if a debt [2] In this case the testator voluntarily specifically bequeathed be received by the tes- put her property into the hands of a conservtator, it will be adeemed; for then there will ator to care for and use for her support. exist nothing for the will to operate upon." There is no suggestion that what the conFord v. Ford, 23 N. H. 212, 218. If the tes- servator did in the use of the money on detator in her lifetime had withdrawn the bank posit was not reasonable and done in good deposits and used or reinvested the fund, faith. As to the portion of the fund consumthere can be little doubt upon the authorities ed the legacy is adeemed both because what that the legacies would be by her action de- was done being reasonable was authorized by stroyed. A legacy is adeemed by the destruc- the testator and because nothing has come to tion of the thing itself so that there is noth- the executor's hands upon which the will ing upon which the will can operate or by can operate. The investment in the Liberty such change in its character voluntarily made Bond was not made to advantage the estate, by the testator as indicates a change of tes- was not known to or authorized by the testamentary purpose, an intentional partial tator. The change therefore furnishes no evirevocation of the will. Hoitt v. Hoitt, 63 N. dence of an intentional revocation by her. H. 475, 497, 3 Atl. 604, 56 Am. Rep. 530. As so much of the fund as was invested in "But no ademption will take place where the the bond is identified as a part of the bechange in the thing bequeathed is effected by quests to the legatees of the bank deposits, operation of law, as where a fund is convert- the executor is advised that the persons now ed into one of a different description by act entitled as legatees to such deposits are enof parliament. Nor will it operate to adeem titled to the Liberty Bond now in his hands the legacy, where the fund has been transfer- in proportion to the investment from each red into another fund by the trustee without fund. As the same amount was drawn from the concurrence of the testator." 2 Red. each bank for the purchase of the bond, the persons who would have received each deposit | missed the petition, subject to exception by except for the change are equal owners of the the plaintiff. Order of dismissal set aside. bond. Case discharged. All concurred. ATTORNEY GENERAL ex rel. HIGHWAY (No. 1717.) 1 George W. Pike, of Lisbon, for relators. Raymond U. Smith, of Woodsville, for defendant. Oscar L. Young, Atty. Gen., for State Highway Department. PARSONS, C. J. Chapter 29, Laws 1893, abolished the existing subdivision of towns into highway districts and made the town the (Supreme Court of New Hampshire. Grafton. unit for the performance of the highway conFeb. 1, 1921.) 2. Highways 105(1)-Two highway systems exist, one including state highways and stateaided highways, and the other including remaining highways. Two highway systems have existed in the state since 1905, one the so-called state highway system, which includes state highways and state-aided highways, and the other such highways as are not state highways or state-aided highways (Laws 1915, c. 48, § 2). 3. Towns 30, 31-Presumed that duty or authority imposed on town is to be performed or exercised by officers to whom like duties or authority appertain. When the Legislature imposes a duty or authority on a town without special provision as to manner of execution, the presumption is it was intended the duty should be performed or the authority exercised by the officers to whom duties or authority of the same character by law appertain. 4. Highways 93-Town selectmen cannot arbitrarily appoint highway agent for certain roads. Under Laws 1893, c. 29, as amended by Laws 1915, c. 171, and Laws 1905, c. 35, town selectmen have no authority without instructions to appoint a highway agent to take charge of certain highways, "state-aided" or not, so as to deprive the duly elected highway agents of the town of the entire authority vested in them by the town. structing and maintaining duty imposed upon the town. In place of highway surveyors, highway agents elected by the town were provided. In case of a failure to elect by the town or of a vacancy in the office the selectmen were authorized to appoint, but no person could at the same time hold the offices of highway agent and selectman. Id. §§ 4, 5. Section 3 of the act which provided for the election of such officers and defined their powers and duties was amended and re-enacted in 1897 (Laws 1897, c. 67), 1913, (Laws 1913, c. 14), 1915 (Laws 1915, c. 171) and 1917 (Laws 1917, c. 49). The amendment of 1917 is not material, but in 1915 (c. 171) the whole section was devised, rearranged, and errors in former amendments corrected. The section was then re-enacted; all former legislation relating thereto being repealed. The material part of this act, the existing law on the subject, is: "At the annual election, each town shall elect by ballot one or more, not exceeding three, highway agents, who, under the direction of the selectmen, shall have charge of the construction and repair of all highways and bridges within the town, and shall have authority to employ the necessary men and teams, and purchase timber, planks, and other material for construction and repair of highways and bridgannual election to instruct its selectmen to or the town may vote at the appoint an expert highway agent, who, under direction of the selectmen, shall have the same power and perform the same duties as a highway agent if elected by the town." es, * * If the defendant, Brooks, can qualify as an "expert highway agent," the town have not instructed the selectmen to appoint one. The relators were duly elected by ballot by Quo warranto by the Attorney General at the town and there is no vacancy. If the the relation of the Highway Agents of Easton selectmen can remove certain highways from against the defendant Brooks, appointed by the jurisdiction of the agents in the absence the selectmen of Easton, with the consent of special authority as to such highways, and approval of the State Highway Commis- they could in the same way treat all the sioner, to take charge of and to do the work highways in the town. They could arbitrarily of improving and maintaining certain state-deprive the duly elected officers of the town aided highways in the town. The parties of the entire authority vested in them by agree to any change in the form of action the town. " which may be necessary. The court ruled the defendant's appointment valid and dis [1] Occasion has not arisen to define the division of power between selectmen and (113 A.) highway agents in the performance of the the power arbitrarily to remove him from made. [2] It is said that "two highway systems have existed in New Hampshire since 1905, one the so-called state highway system, which state-aided includes state highways and highways, and the other such highways as are not state highways or state-aided highways." This claim is well supported. Laws 1915, c. 48, § 2; Kelsea v. Stratford, 79 N. H. 273, 108 Atl. 298; Tilton v. Sanbornton, 78 N. H. 389, 100 Atl. 981; Grace v. Belmont, 78 N. H. 112, 97 Atl. 221; Opinion of Justices, 77 N. H. 606, 92 Atl. 550. The question is whether the construction and repair of "stateaided" highways has by the road improvement legislation been placed in the immediate charge of the selectmen instead of the highway agents. The object of the act of 1905 (c. 35) was stated in section 1 to be "to "All highways in any city or town improved by the expenditure of said joint fund shall thereafter be maintained by the city, town or place within which it is located at the expense of the town." This duty of maintenance being placed upon the town, it must have been understood, in the absence of provision to the contrary, that the town would perform the duty through the agencies provided by general law for the execution of such work, the highway agents under the direction of the selectmen. The section further provided that "In case any town or place shall neglect to make repairs ordered by the Governor and council, such repairs shall be made under the direction of the Governor and council, at the expense of the state and the cost thereof shall be added to the state tax for that town, or place for the next year." It is assumed that the state-aided roads in Easton are non-trunk lines, and it may be assumed that under this section assistance has been granted the town by the Commissioner of Highways, who in the first instance has succeeded to the powers and duties of the Governor and council in the state's scheme of road improvement. Laws 1915, c. 103. Under these assumptions the question is as to the expenditure of a fund for road maintesecure a more uniform system for the imnance provided in part at least by the state. provement of main highways throughout the But this is not the joint fund for road imstate, by the co-operation of the municipali-provement created by special action of the ties and the state." "The general supervi- towns under sections 3, 4, 5, 6, c. 35, Laws sion, control, and direction of said business 1905, the expenditure of which is regulated by so far as the different municipalities are section 7 of the act amended and re-enacted. concerned" was committed "to the selectmen Laws 1907, c. 60, § 1. The duty of mainte of organized towns." Id. § 2. This apparent-nance by the town to the satisfaction of the ly gave to selectmen as to the proposed im- Governor and council still remained with the provements precisely the same control that town to be performed by the officers by law The effect of special they had under chapter 67, Laws 1897, over intrusted therewith. highways generally which are placed in provisions in the act creating the office of charge of the highway agents "under the Highway Commissioner (chapter 103, Laws direction of the selectmen." Sections 3 and 1915), passed at the same session but prior 4 of the act of 1905 provided for the creation to the act as to the powers of highway agents of a joint fund raised in part by the town and (Laws 1915, c. 171), is hereafter considered. in part contributed by the state for road But neither in that or in any legislation improvement. Section 8 is: relating to the maintenance of "state-aided" roads have any provisions giving selectmen | built or maintained either in whole or in special authority been found. The defend- part with money appropriated from the state ant, Brooks, was appointed "to take immedi- treasury," which the Highway Commissioner ate charge and do the work of improving and is required to exercise (Laws 1915, c. 103, § maintaining certain state-aided highways." 4), or not, need not be considered. The peIt may be that the expenditure of a joint titioners do not complain because the Highfund for highway improvement created un-way Commissioner has required them to put der the provisions of chapter 35, Laws 1905, as well as the maintenance of previously improved highways, was involved. In such case the expenditure of the fund must be made as directed in section 7 as amended in 1907, as follows: Brooks in charge or to employ him. Their complaint is that the selectmen have supplanted them in the performance of the duties confided to them by law by the appointment of another to perform duties which the town elected them to perform. If the selectmen (1) If the amount to be expended exceed had no power to make the appointment com$1,000, by contract let to the lowest responsi-plained of, the consent or approval of the ble bidder. (2) By the town upon terms acceptable to the Governor and council if it has, or will provide, suitable appliances. (3) If bids are asked for and none received; the Governor and council, with the approval of the selectmen, may employ agent or agents to do the work. (4) Any town by its selectmen may bid for and execute contracts on behalf of the town for highway work within its limits. [3] The work in this case was being done by the town, and, as heretofore suggested, when the Legislature imposes a duty or authority upon a town without special provision as to the manner of execution, the presumption is it was intended the duty should be performed or the authority exercised by the officers of the town to whom duties or authority of the same character by law appertain. Highway Commissioner did not confer it upon them. The power of the Commissioner of Highways is not involved. It does not appear that he required the employment of Brooks if it could be shown that under the circumstances such a requirement was a rea sonable exercise of his control over road improvement or maintenance in part at the expense of the state. Nothing has been found in the road improvement law extending the directing power of the selectmen. As has already been suggested, if the selectmen under their power of direction have authority to remove one road from the relators' charge, they could have taken all and absolutely deprived the relators of all official power and duty. As the statute expressly declares the offices of highway agent and selectmen to be incompatible, it is not probable that the Legislature by giving directing power to the selectmen intended to could if they possessed the arbitrary power of removal, which alone would sustain the action complained of. [4] But it is argued that, the Governor and council, now represented by the High-authorize them to absorb the office, as they way Commissioner, being judge of the manner in which the duty of maintenance was performed and authorized to prescribe the terms upon which the town should be permitted to perform improvement work, could prescribe in advance that a particular person should have charge of and do the work. Whether this would be a reasonable exercise of the state's power of control or of the "general supervision, control, and direction, over all matters pertaining to construction, maintenance, and abandonment of highways, now or hereafter * the The defendant's appointment is void, and Order of dismissal set aside. (113 A.) HOYT v. MASSACHUSETTS BONDING & (Supreme Court of New Hampshire. Hillsborough. Jan. 4, 1921.) Plea in 7. Insurance 668(11) Whether Insured's Occupation when killed of same hazard as that in which insured, question of fact. Whether insured when killed was engaged in an occupation classified as of the same hazard as that in which he was insured was a question of fact. 1. Abatement and revival ~8(1) tions not for same cause. If the trial court found that the averment of the plea in abatement that both of plaintiff's actions were for the same cause of action was not sustained in fact, the law required the overruling of the plea. maintained. 1011(1)-Conclusion of trier of fact cannot be disturbed, where there was evidence on both sides. Where there was evidence on both aspects of a question of fact, the conclusion of the trier of facts cannot be disturbed. Exceptions from Superior Court; Hillsborough County. Actions by Flora Hoyt against the Massachusetts Bonding & Insurance Company and another. Nonsuit was ordered in the first action, to which plaintiff excepted. In the second action, defendants' plea in abatement being overruled, verdict was found for plaintiff; defendants excepting. In the first suit, judgment ordered for defendants; in the second, judgment ordered for plaintiff. Action to recover an indemnity payable to the plaintiff upon the death by accident of her husband, Edward E. Hoyt, who was killed in a railroad accident March 3, 1916, upon a policy originally issued August 18, 1908, by the United States Health & Accident Insurance Company. Some time in 1914 the policy was assigned by the insurer to the 4. Abatement and revival 4-Second suit defendant Bonding & Insurance Company, on same cause held not to be dismissible as vexatious. A second suit on the same cause of action is not to be dismissed as vexatious, when justice requires otherwise. 5. Insurance145(1)-Renewal receipt not void because not incorporating provisions of statute; receipt construable as if provisions incorporated. Renewal receipt, issued by an accident insurer and delivered after October 1, 1913, was not void because it did not incorporate in the renewed policy the provisions of Laws 1913, c. 226, but by the terms of the act the receipt must be construed as if such provisions were incorporated therein. Accident insurance 6. Insurance 145(1) tended. Where an accident policy provided any limitations in it contrary to state laws governing it were extended to the minimum periods provided by such laws, and, when the policy was renewed in 1914, 1915, under Laws 1913, c. 226, the minimum provision by which such insurers might limit the bringing of suit was two years, the policy was renewed subject to the condition that the provision as to limitation of time for suit was extended to two years. who assumed and subsequently renewed the same from time to time. The policy provided for the payment of $1,000 in case of accidental death, which sum had been increased 50 per cent. in accordance with the terms of the policy by its five consecutive full year's renewal. The policy also provided for double indemnity in case of injury causing death Proofs of loss were duly filed March 14, 1916, in which the plaintiff claimed $3,000. April 13, 1916, the defendants' local agent, under express authority from the defendants, wrote the plaintiff's attorney that the defendants denied all liability for any amount in excess of $375, and tendered a draft for $750 by way of compromise and to avoid litigation, as the company were willing and anxious to make an equitable adjustment, but reserved all rights and defenses in case the This was done, and tender was refused. suit was brought April 14. 1916. The defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |