said:

murrer.

The first specification of error is that the superior court had no jurisdiction to render a judgment in question "because the writ in said action and upon which said judgment was based was not served on said Hersey in the manner provided by law and the statutes in such cases made and provided, or at all, and said Hersey had not appeared in said action." To this specification the defendant in error demurs, and for ground of demurrer alleges:

"That the plaintiff in error has alleged causes of error which would have entitled him, the said plaintiff in error, to a remedy by review, and that as a matter of law, his writ of error is insufficient, because a remedy by review is open to him."

This contention of the defendant in error may be stated thus: That a judgment debtor who has been defaulted without service upon him or appearance by or for him, cannot maintain a writ of error to reverse judgment, but must have recourse to proceedings in review.

We cannot accede to that proposition;

we think the law is otherwise.

[1] We may say in passing that the provision of R. S. c. 82, § 97, "Final judgments in said superior courts may be re-examined in the Supreme Judicial Court on a writ of error, or on petition for review," only indicates the intention of the Legislature as to the forum in which writs of error and petitions for review may be entertained. The rules of law and practice which determine whether a judgment may be re-examined by writ of error or by petition for review still obtain, and although the forum for examining final judgments rendered in the superior courts is declared to be the Supreme Judicial court, yet that is a declaration of forum only, and not a declaration giving a choice of procedure.

[2] It is undoubtedly true that when a defendant has been duly served with process and has had full opportunity to protect his rights by appeal or by exceptions, and has failed or neglected to do so, he cannot afterwards raise the same questions upon a writ of error. So when a defendant has been duly served with process but through mistake or accident has not had notice of the action or has failed to appear, his remedy is by proceedings in review. But we are not aware that these principles have been extended, and we think that they should not be extended, to cases where the record shows no legal service of the writ, and no appearance by the defendant, in the original action.

In Weston v. Palmer, 51 Me. 73, Judge Walton quoted Chief Justice Dana in Skipwith v. Hill, 2 Mass. 35, as follows:

"I take it to have been decided, generally, that where a party has a right of appeal to this court, and will not avail himself of it, he shall not afterwards be allowed his writ of error. Perhaps the rule has never been extended to a judgment on default, where no personal notice of the suit has been given. But where, after legal notice of the action in the lower court, a defendant suffers himself to be defaulted, he ought not to be permitted to lie by, and, at any time within twenty years, come in and reverse the judgment for a which he might have availed himself in the original suit."

cause of

Judge Walton proceeds in his opinion as follows;

because the defendant had had no notice of "In that case the judgment was reversed, the suit, as appears by the remarks of Mr. Justice Sedgwick. The rule is now well settled that a writ of error will not lie, where the party has had an opportunity to appeal. The fendant is an infant, or a person non compos rule is not applicable to cases where the dementis, for such persons are regarded as incapable of appealing, or doing any other act necessary to protect themselves against a groundless suit; nor does it apply to suits where there has been no legal service of the writ."

The first of these exceptions, relating to an infant, was recognized in Easton v. Eaton, 112 Me. 106, 90 Atl. 977, 52 L. R. A. (N. S.) 799.

The reason for the last exception or quali fication is thus stated by Chief Justice Shaw in Bodurtha v. Goodrich, 3 Gray (Mass.) 508:

stated thus:

"A writ of review is a proper remedy to correct an error in a judgment, when the statute has been complied with by causing the writ to be properly served, but through some mis

take or accident the defendant has not had notice of the action. In such action the court has jurisdiction of the case and can proceed to render a proper judgment. But this cannot be done where there has been no legal service of the writ. An essential prerequisite to enable the court to take cognizance of the case is wanting, and no valid judgment can be rendered against the defendant, and if one is rendered, it is erroneous and liable to reversal on error." See, also, Smith v. Paige, 4 Allen (Mass.)

94.

In Thompson v. Mason, 92 Me. 98, 101, 42 Atl. 314, 315, it is laid down, as “settled be yond controversy, that when a party litigant has had his day in court, has had a fair opportunity to raise his questions of law and to preserve his rights by exceptions, but has neglected or omitted to do so, and has stood silently by while his case went to judgment, he cannot afterwards raise the same questions by writ of error."

The case of a party litigant who has not had his day in court, because service was not made upon him, was not before the court. In the discussion of that case Lovell v. Kelley, 48 Me. 263, is cited as authority for the proposition that "error will not lie where remedy is afforded by review"; but Lovell v. Kelley upon examination will be found not to support that broad, unlimited proposition. In Lovell v. Kelley the return on the original writ showed a legal service, therefore there was no error on the face of the proceedings; the plaintiff in error, admitting himself to be an inhabitant of the state at the time of the service of the writ, alleged that he was absent therefrom at the time of service and did not return until after the sitting and final adjournment of the court, and had no notice of the suit. To this contention the court replied that he had ample remedy by review.

in a case where service was not made upon the defendant in the original action, he may the learned Justice in citing the case thus not have a writ of error, and we think that broadly and without limitation had in mind only the second contention of the defendant that, although legal service was made, he was entitled to his writ of error, because he had no actual notice of the suit. A similar remark in Denison v. Portland Co., 60 Me. foot of page 522, is to be taken in the light of the context as not applicable to cases where no service had been made and judgment has been rendered on default without appearance.

The line is sharply drawn between the of the original writ has not been made and cases in which, on the one hand, legal service there has been no appearance by or for the defendant, and, on the other hand, where legal service has been made. In the former a writ of error will lie to reverse a judgment rendered upon default; in the other, the remedy is by proceedings in review.

In the instant case the plaintiff in error alleges that the writ in the original action was not served upon him; this is admitted by the demurrer, and upon the authorities. nothing further appearing, is legal ground tained to reverse the judgment. upon which a writ of error may be main

Whether proceedings in review may also be maintained is not very material here; but we see no reason why the defendant in the original suit may not file a petition in review. if he is willing to submit to the jurisdiction of the court. Holmes v. Fox, 19 Me. 107: Hall v. Staples, 166 Mass. 399, 400, 44 N. E. 351.

The further allegations of the writ, however, show that the plaintiff has voluntarily appeared in the superior court and has there had the opportunity to raise the same questions which he now raises before us, and, being overruled, has neglected or omitted to protect his rights by exceptions.

[3-6] The second specification of error is set forth as follows:

"Because said court at a term thereof, held at said Portland on the first Tuesday of May, 1920, and on the fourteenth day of said term, Hersey, appearing specially for the purpose denied a motion theretofore made by said of said motion and not otherwise, that the cause in which said judgment was given be brought forward on the docket of said court, that then and thereupon, said judgment might be vacated, set aside and held for naught.”

There is a line of demarcation between the first and the second ground as alleged in the writ of error, in this respect, viz., and as to the first ground the defendant in the original action, plaintiff in this writ of error, was not in court, but as to the second ground he was in court, even though appearing spe

supra.

"It is true that the clause now under consideration does not in terms limit the estate devised to Orlando to his life. But it expressly provides that if he should die, then the property is to go to his wife *

*

ing her natural life and no longer'; thus showing by plain implication that the son took it for life only, as otherwise he could dispose of it and thereby deprive his wife of her interest therein."

In the case of Schmaunz v. Goss, 132 Mass. 141, there was given to a sister by appointing her his heir one-fourth of the testator's estate without words of limitation. At his death it was provided that it should go to her grandchildren. The court said:

This is true, if the estate in the first taker was clearly intended to be absolute; but if by this it is meant that the cases expressly hold that a presumptive fee under section 19. c. 79, R. S., when viewed in the light of the other provisions of the will, may not be so cut down, it is not sustained by the authorities cited in the opinion, nor has any such plethora of authorities as are suggested by the language of the opinion been called to our attention.

Upon the facts involved, this case is not an authority for the contention that such a rule of interpretation has become "firmly fixed" in this state. In the first place, it is clear in this case, under the rules of inter

death to the children of her deceased son. *** This language is distinct and clear, and plainly restricts her interest in the real property devised to her to an estate for her life, with a vested remainder in fee in the children of Erhard Schubert."

same

*

Except for the additional provision, "And shall be left behind by my sister to these said children," which the court said might be construed to mean that she should no dispose of it, this case is no different in the issue raised from the case at bar. Nor is the suggestion without force in the case at bar that the words, "At her death the together with what I previously gave to my sister Georgie J. Bailey," there being elsewhere in the will no express or implied right in the sisters to use any part of the principal, unless, of course, the gift be held to be absolute, should be construed as indicating the principal sums given to the sisters was not to be disposed of by them, but was to be kept intact and be passed on at their death to his daughters, who under the will only received in addition to these bequests the sum of $1,000 each, while the sisters were made the residuary legatees.

To the same effect are the cases In re Grover's Est., 12 Misc. Rep. 629, 34 N. Y. Supp. 474; Rice v. Moyer, 97 Iowa, 96, 66 N. W. 94. Also see Baxter v. Bowyer, 19

Ohio St. 490.

It is suggested, however, that the court in Mitchell v. Morse, 77 Me. 423, 1 Atl. 141, 52 Am. Rep. 781, has indicated that a gift or remainder over should not alone be permitted to cut down the estate given to the first taker. The language of this case and of the court in Wallace v. Hawes and Loring v. Hayes, however, should be weighed in the

absolute estate was intended in the first taker. It was the "remainder thereof" that went to the children. Clearly under Ramsdell v. Ramsdell; Shaw v. Hussey and Jones v. Bacon, above cited, there was an implied power of disposal in the wife, and an absolute estate. It was so recognized in Hopkins v. Keazer, 89 Me. 353, 36 Atl. 615, where it was distinguished from that case upon that very ground.

In Wallace v. Hawes, 79 Me. 177, 8 Atl. 885, the language of the court followed in the main that of Mitchell v. Morse, but as in that case it was the "residue" after the death of the first taker that went over, clearly implying an unlimited power of disposal in the first taker and an absolute estate.

In Loring v. Hayes the court said:

"It has long been a settled rule in this state * * that where by the terms of a devise or bequest an estate in fee simple of real estate, or an absolute gift of personal property is made, a gift over is void."

To which no exceptions can be taken. But it appears, when analyzed, that if the gift over in this case applied to the gift under consideration at all, there was an implied power of disposal in the first taker, and hence an absolute estate. If the gift over did not apply to the gift in question, then there was nothing to indicate that a lesser estate was intended, and by the statutes the absolute property passed.

When, however, the exact situation contained in the case at bar arose in Hopkins v. Keazer, supra, the court then having as members the authors of the opinions in the three cases above referred to, and who all joined in the opinion, said:

"Of course, we must fully recognize the familiar principle, well established in this state,