quest to Gideon," is used with no technical weaning, but is simply an awkward form, natural to the draftsman, for expressing the testator's wish that the land should go to Daniel, and then to Gideon, only in case of the failure of George to leave issue surviving him. Reading the section thus, the force of the expression in the first clause to pass a fee simple is restrained by the provision, in the clause immediately following, that in case of the death of George without lawful heirs of his body the estate shall go to Daniel, and George takes an estate tail by implication. Hudson V. Wadsworth, 8 Conn. 347, 357; Comstock v. Comstock, 23 Conn. 349, 352; St. John v. Dann, 66 Conn. 401, 407, 34 Atl. 110; 1 Swift's Dig. 140.

The claim, made for the plaintiff, that the death of George, referred to, is his death before that of the testator or of the widow, is not tenable. The general guide for determining the meaning of any particular will, in speaking of the death of a devisee, without explicitly stating whether the death intended is death under all circumstances, or a death before that of the testator or of a life tenant of the property devised, is uniformly recognized. Where there is simply a devise to A., and in case of his death to B., the time of death referred to is, in the absence of any qualifying words or provisions in other parts of the will, so obviously during the life of the testator, that such construction is always adopted, and upon A.'s surviving the testator he takes an absolute estate. In such case the intent is clear to refer to death under the one circumstance of dying before the testator, and not to death under all circumstances. But that inference does not hold good when all the provisions of the will make apparent an intent of the testator to refer to death under all circumstances. Webb v. Lines, 57 Conn. 154, 17 Atl 90; Johnes v. Beers, 57 Conn. 295, 299, 18 Atl. 100. On the other hand, where the limitation over on the death of the first devisee is in case of his death without issue, by a settled rule, based also on inherent evidence of intent, the estate in the first devisee is limited to an estate tail, and in such case the time of death referred to must necessarily be death after that of the testator. Here, too, if all the provisions of the will clearly indicate a different intent, the usual construction must give way to the actual intent; but the results reached in cases where such controlling intent has been found must be regarded rather as illustrative of the application of a general rule to special cases, which, in the nature of things, are rarely exactly duplicated, than as precedents which may safely be developed through the process of analogy. And, indeed, the reports not infrequently fail to disclose all the elements that affected the special result.

In White v. White, 52 Conn. 518, there was a bequest to several children, and, in the event of none of them having issue, a gift over. The court, in holding that the children took an absolute estate upon surviving the testator,

relied on provisions of the will which made it certain that such was the actual intent. In Coe v. James, 54 Conn. 511, 512, 9 Atl. 392, after a gift to the testator's grandchildren, the will provided that, in case they had descendants, their respective shares should go to their descendants, and, in case of death without issue, to other members of the family. Here the language of the provision itself fairly, if not clearly, referred to death during the testator's life. In Phelps v. Robbins, 40 Conn. 250, 267, there was a bequest to the testator's two children, "and, if either shall die leaving issue," his portion was to go to such issue. The court held that such language generally creates an estate tail, but that the whole will showed a different intent; that is, in case either child died before the testator leaving issue, to give its portion to such grandchildren, and so prevent a failure of the devise to their injury. In Bullock v. Seymour, 33 Conn. 289, the bequest was to the testator's son William, "and, in case he should die without children or their legal representatives," then to the testator's legal heirs. The court held that William did not take an estate tail, but a fee defeasible on his dying without children at the time of his death, which became indefeasible on the birth of a child. In Turrill v. Northrop, 51 Conn. 33, the gift was to the testator's adopted son Gad, and, if he "shall die without issue who can inherit," then to the testator's brothers and sisters. The court held that "without issue who can inherit" was equivalent to "heirs of his body lawfully begotten"; that Gad did not take a fee simple defeasible upon death without issue and indefeasible on birth of a child, but did take an estate in fee tail; and that its decision did not conflict with Bullock v. Seymour, supra, because in that case the court "puts its decision upon the manifest intent of the testator, which it very properly makes the law of the case." Turrill v. Northrop, supra, assumes that the ordinary legal import of language substantially like that under construction, taken by itself, limits the devise in fee simple to an estate tail, and that such language should be so construed unless inconsistent with the manifest intent of the testator, which is the law of each case. In Turner v. Balfour, 62 Conn. 89, 92, 25 Atl. 448, the testator in one clause devises land for life to his son David, with remainder to Robert, who was the child of another son, and in a subsequent and independent clause says that, in case Robert dies leaving no issue, he devises the land to his (the testator's) six children. The only practical question was whether the devise over was void as being the limitation of a fee upon an express fee. The court held that the actual intent, clearly expressed under all the circumstances, was to give Robert either a remainder on the condition of his surviving the life tenant, or a vested remainder which was defeated by his prior death. In St. John v. Dann, 66 Conn. 401, 407, 34 Atl. 110, the gift was to the testa

tor's wife for life, on her death to his son Charles, and, in case he should die without issue, to the children of the testator's son George. The court held that Charles took an estate tail, and that the question whether a limitation over in case of the death of a devisee without issue refers only to the occurrence of the death before that of the testator "is always one to be determined in view of all the provisions of the particular will under consideration, and the circumstances surrounding the testator."

It is unnecessary to cite further examples. The cases, even if they may apparently differ in the application, are all consistent with the principle that the governing intent of the testator is an intent expressed in the will consistently with the rules of law; that the meaning of language used cannot be determined by an arbitrary rule of legal definition, but depends in each case on the peculiar provisions and characteristics of the special will, which must to a large extent be its own interpreter, as well as on the circumstances surrounding the testator; and that the qualification of words apt for devising a fee simple, by following words disposing of the estate on the death of the devisee in such terms as imply an interest in the heirs of his body, limits the fee devised to a fee tail; and defines the death of the first devisee as his death under all circumstances, unless such meaning conflicts with other provisions of the will and the surrounding circumstances.

The present case raises a main question different from that in Turner v. Balfour, supra, and the special facts in the two cases are unlike in essential features. It differs from several other cases, in that the testator, while intending to benefit the children of his nephew, makes no provision for them in case of a failure of the devise through the nephew's death before his own, leaving issue; so that the language, "without lawful heirs of his body," used in describing the death, can have no effect unless the death referred to is one occurring after that of the testator. There are in this case no conflicting provisions of the will, or surrounding circumstances, which affect the intent to limit the estate devised to George to a fee tail which is implied in the provision qualifying the words of the original devise, unless, from all the provisions of the will, and the meager statement of the surrounding circumstances, it fairly appears, as the testamentary scheme, that the testator, being without children of his own, wished his landed property to be secured to heirs of his brother, and, if possible, through one of the two sons named, and so, after providing for his wife by an absolute gift of his personal property and a life interest in his land, gave the whole remainder in fee tail to George, and then to Daniel, and, in the case of failure of issue in both sons, to his brother. If such wish may properly be inferred, it confirms the primary meaning of the clause in dispute. No other meaning is apparent.

The construction of the will is involved only so far as it affects the present title of George. He does not now own an estate in fee simple, and therefore Palmer was not bound to accept the deed tendered and pay the price agreed upon for a conveyance in fee simple. Amicable suits are the mere creatures of statute (Gen. St. § 1200), and must strictly follow the statutory provisions. We do not mean to intimate that Gideon P. Chesebro was properly summoned into court after this suit had been entered, but the record shows that he subsequently voluntarily became a party to the agreed case, and no question as to the procedure is before us The superior court is advised to render judgment for the defendant. The other judges concurred.

(68 Conn. 248)

BRISTOL v. GALWAY. (Supreme Court of Errors of Connecticut. June 25, 1896.)

TRIAL PAPERS TAKEN BY JURY-SALE-BREACH OF WARRANTY-EVIDENCE.

1. Where papers improperly given to the jury were retaken by the court before they had been examined, no prejudicial error is shown.

2. Plaintiff sold defendant horses under a warranty. In an action for the price, defendant offered as a witness a veterinary surgeon, who, some months after the sale, had examined the horses in possession of defendant, at plaintiff's request. Held, that his testimony was admissible to prove that the alleged unsoundness was of such a nature as to indicate its existence at the time of sale.

Appeal from city court of New Haven; Dow, Judge.

Action by James A. Bristol against John C. Galway on a note given for the price of a horse. Judgment for plaintiff, and defendant appeals. Reversed.

James P. Bree, for the appellant. Warren H. Bristol, for the appellee.

HAMERSLEY, J. As it appears from the finding that the paper improperly given the jury was retaken by the court before it had been examined, the defendant could not have been injured by the mistake. The horses were sold on May 25th. Upon the trial the defendant relied on the testimony of a veterinary surgeon, who had, as it was claimed, at the request of the plaintiff, examined the horses while in the possession of the defendant, the following October; but the plaintiff objected "to all the evidence as to the examination of horses sold by Bristol to Galway in May, 1895, and examined in October, 1895. The objection was sustained, and exception taken." On its face, and unexplained, this ruling was erroneous. The offer-for the purpose of showing an unsoundness at the time of sale-to prove a subsequent examination by the surgeon, made at the request of the plaintiff, and with the consent of the defendant, was, in effect, an offer to prove that unsoundness existed at the time of the examination, and also to prove by the opinion of the expert that the

unsoundness was of such a nature as to indicate its existence at the time of sale. Such evidence would conduce to prove a fact in issue (Hawley v. Belden, 1 Conn. 93, 99), and was admissible (Bulkley v. Landon, 2 Conn. 404, 407). If the finding had been properly prepared, so as to present an intelligible view of the relation of the questions asked and excluded to the actual condition of the evidence, it is possible that the error might have appeared to be one that did not in fact injure the defendant. The trial court seems to have assumed that the condition of the horses at the time of sale would not be shown by any evidence offered by the defendant of their condition subsequent to that time; and the finding, which is a mere bald recital of a number of questions asked and excluded, some evidently permissible and some not, admits of no inference except the natural one that the answers which the allowable questions sought to elicit would have tended to support the defendant's contention.

The other errors assigned relate to the main error of the court in assuming that the evidence as to the condition of the horses subsequent to the sale would not tend to prove a breach of warranty, and do not call for special mention. Error, and new trial granted. The other judges concurred.

(68 Conn. 250)

WEINHOUSE v. CRONIN. (Supreme Court of Errors of Connecticut. June 25, 1896.)

REAL-ESTATE AGENT-COMMISSIONS. Plaintiff, a real-estate broker, knowing defendant had property for sale, said to him that he had a "customer," and asked the price. At a second interview he took defendant to the house of the proposed purchaser, and introduced him to defendant, saying, "This is my customer." No sale was then made. Defendant afterwards effected a sale to such person without the knowledge of plaintiff. Held, there was no implied contract by defendant to pay any commission to plaintiff.

Appeal from city court of New Haven; Dow, Judge.

Action by Hyman Weinhouse against Thomas J. Cronin to recover a real-estate commission for the sale of land of the defendant. Judgment for plaintiff, and defendant appeals. Reversed.

Henry F. Hall and Richard H. Tyner, for appellant. David Strouse, for appellee.

ANDREWS, C. J. The finding that there was an implied contract to pay a commission shows that there was no express one. An implied contract respecting any matter can exist only where there is no express one. 1 Chit. Cont. (11th Am. Ed.) 89; King v. Kilbride, 58 Conn. 109, 19 Atl. 519; Brown v. Fales, 139 Mass. 21, 29 N. E. 211. What is often termed an implied contract, though it is more properly denominated a quasi contract, is matter of law. 1 Swift, Dig. 175. Such a contract rests

merely on construction of law. It is one which the law, from the existence of facts, presumes the party has made. Brackett v. Norton, 4 Conn. 517, 524. A true "implied contract" on the other hand, is one which may be inferred from the conduct of the parties, though not expressed in words. In the case at bar the finding is so drawn as to indicate that the court was of opinion that from the facts proved the law implied a contract or quasi contract. If the facts which the court finds to exist are such that the law presumes from them that the defendant had made the contract which the plaintiff has alleged in the complaint, then the judgment is correct; but, if otherwise, there is error. There are two conditions, upon either of which, if shown to exist, the law would imply a contract by the defendant to pay a commission to the plaintiff. If the defendant has so conducted himself that the plaintiff, acting fairly, had the honest belief that a lawful request had been made to him by the defendant to render services as a broker in the sale of the defendant's said real estate, and if the plaintiff, acting on such request, rendered such services, then the law would imply a promise by the defendant to pay to the plaintiff what the services were reasonably worth. Or if the plaintiff, without having been requested so to do, rendered services as a broker in the sale of the defendant's real estate, under circumstances indicating that he expected to be paid therefor, and the defendant, knowing such circumstances, availed himself of the benefit of those services, then the law would imply a promise by the defendant to pay to the plaintiff what those services were reasonably worth. The facts from which the contract of the defendant to pay a commission to the plaintiff is to be inferred are brief. The plaintiff is a real-estate broker living in New Haven. The defendant is a Catholic priest, living in Wallingford. He owned certain real estate situated in New Haven, which he wished to sell. He had put up a sign on it, advertising it for sale, and, so far as appears, in his own name, as though he desired to avoid the expense of a broker. The plaintiff knew that this property was for sale, and had certain customers who wished to buy it. Three interviews between the plaintiff and the defendant in respect to this property are mentioned. The substance of the first one is this: The plaintiff called on the defendant at his home in Wallingford, and said to him: "I have a customer who desires to buy your property in New Haven. For what price will you sell it?" The defendant named the price. A customer is a person with whom a business house or a business man has regular or repeated dealings. The plaintiff being a real-estate broker, his customer would be one for whom he had acted in the buying or selling of real estate. Putting, then, the meaning of the words in the place of the words used, and what the plaintiff said to the defendant at this interview means: "I have a man for whom I am acting who desires to

He

buy your property in New Haven. For what price will you sell it?" The fact that the plaintiff led the defendant to believe that he was the agent of a would-be purchaser, excludes the possibility of his being the agent of the defendant. The law will not permit any one to be the agent of the buyer and the seller at the same time, unless there is knowledge by both and an assent thereto. Bollman v. Loomis, 41 Conn. 581. The second interview sheds no light at all on the relation of these parties. The third one is this: The plaintiff took the defendant to the house of one Herz, and introduced them, saying: "Mr. Herz, this is Father Cronin. I am trying to sell his property;" and to Father Cronin, "This is my customer." The price of the property was then talked over. No sale was then made. Afterwards the defendant called on Herz, and without the knowledge of the plaintiff effected a sale of the property to him. Putting the meaning of the word "customer" in the place of that word, and the third interview becomes: "Mr. Herz, this is Father Cronin. I am trying to sell his property. Father Cronin, this is the party to whom I alluded at our interview at Wallingford. This is the man for whom I am acting." Reading these interviews in the meaning which the parties, acting fairly, must have attached to the words, it is certain that the plaintiff could not rightfully, at the first interview, have believed he was requested by Father Cronin to act as broker for him. was acting at that interview as the broker for the intending purchaser. He could not honestly have supposed he was requested to betray his own customer. At the third interview words were used from which, being unchallenged by the defendant, it is argued the plaintiff might fairly suppose that Father Cronin assented to his acting as broker to sell the property. Assume this to be true; but after that interview the plaintiff rendered no services as broker, and so did nothing for which he might justly charge commission. It may, perhaps, be urged, as it is, that the bringing Father Cronin to the house of Mr. Herz, and introducing them to each other, was servIces as a broker of which the defendant availed himself. Let this be taken to be true; but no contract to pay for that service would be implied against Father Cronin, unless the service was rendered under circumstances such as fairly to give notice to Father Cronin that the plaintiff was expecting pay therefor from him. Now, a declaration by the plaintiff at that very time that Mr. Herz was his customer, and so the party for whom he was acting, could not be regarded as giving any such notice to the defendant; but exactly the contrary. The law never implies a contract except where reason and justice dictate it. And it must be reason and justice which affects both the parties. We have thus gone over the facts in the case somewhat carefully, and are not able to find anything from which the law will imply a contract by the defendant to pay the commission

charged by the plaintiff. In reason and justice the plaintiff is not entitled to demand a commission, nor does reason and justice require the defendant to pay it. There is error, and the judgment is reversed. The other judges concurred.

(68 Conn. 293)

WHITE v. TOWN OF PORTLAND et al. (Supreme Court of Errors of Connecticut. Nov. 5, 1896.)

TAXATION COLLECTION— LIMITATIONS - ESTATES OF DECEDENTS.

1. Gen. St. §§ 3890, 3896, relating to the continuation of a tax lien on real estate, do not limit the time in which the tax may be enforced, but merely fix a period beyond which such lien shall not have precedence over other liens.

2. Taxes lawfully assessed against the estate of a decedent, under Gen. St. § 3844, may, like those due from a living person, be collected by levy and sale of the land, at any time within the statute of limitations, if no other lien has intervened, and the estate is still unsettled, though the tax lien has not been continued as provided by section 3896.

Appeal from superior court, Middlesex county; Thayer, Judge.

Action by Frederick Hall White to restrain the town of Portland and others from selling certain land for the nonpayment of taxes. A demurrer to the complaint was sustained; judgment rendered for defendants; and plaintiff appeals. Affirmed.

Edward H. Rogers, for appellant. Arthur F. Eggleston, for appellees.

ANDREWS, C. J. The record in this case presents a single question only. It is this: Can a tax lawfully assessed against the "estate" of a deceased person be collected by a levy upon and sale of the land of the estate, more than a year after the tax is due and payable, there having been no continuation of a tax lien on the land, as is provided by section 3896 of the General Statutes, no other lien having intervened, and the estate still remaining unsettled? The tax sought to be collected was laid against "the Estate of Eliza T. White, deceased," pursuant to section 3844 of the General Statutes. For the purposes of taxation, that section makes the estate a "person capable of owning property." Cornwall v. Todd, 38 Conn. 443, 446. And so "the estate" is to be treated, in the matter of collecting the tax, as a living person would be treated. The intent of sections 3890 and 3896 is not to make a limitation of the time beyond which a tax cannot be collected of a tax debtor, but to fix a time beyond which the tax lien shall not have precedence over other liens. The tax debtor still remains liable for the tax, and it may be collected from him at any time within the general statute of limitation; and, if his land remains in his ownership unaffected by any incumbrance, the tax warrant may be levied upon it precisely as could an execution for any other debt. There is no error. The other judges concurred.

(68 Conn. 294)

Appeal of BROOKS. (Supreme Court of Errors of Connecticut. Nov. 5, 1896.) APPEAL AND ERROR-REVIEW-Weight and SufFICIENCY OF EVIDENCE.

1. A verdict finding certain paragraphs of a will were obtained by undue influence will not be set aside on appeal, unless such verdict was plainly unreasonable under the circumstances.

2. The supreme court is reluctant to set aside the verdict of a jury for the reason that they erred in weighing evidence; and it is not at liberty to do so where the jury have passed upon a mere question of fact, unless it sees that the verdict is so manifestly against the evidence as that it is apparent their minds were not open to reason and conviction, or that an improper influence, from some cause or other, was brought to bear on their deliberations. Derwort v. Loomer, 21 Conn. 245, followed.

Appeal to superior court, Litchfield county; George W. Wheeler, Judge.

Eliza Brooks appealed to the superior court from an order probating the will of Norman Brooks, deceased. On a verdict and judgment in favor of appellant, the executors move for a new trial, on the ground that the verdict was against the evidence, Denied. James Huntington and Alberto T. Roraback, for appellants. Charles G. Root, for appellee.

TORRANCE, J. This is a motion for a new trial for a verdict against evidence, made under the provisions of chapter 51 of the Public Acts of 1893. The contest in the court below related to the validity of the will of Norman Brooks, who died in July, 1895, aged 78 years, leaving a widow 75 years of age, but no children, nor representatives of them. The will in question was dated the 15th of January, 1895, and, after giving certain legacies to a nephew and three nieces, gave the residue of the estate to Edgar M. Clossey and Ralph H. Moore, as trustees, to hold in trust for the wife of the testator, and to pay over to her annually, or oftener if requested by her, the net use and income of said residue during her life, with a provision authorizing and directing the trustees to expend so much of the principal of the estate "as may be necessary for the comfortable maintenance and support" of the widow, if the use and income proved inadequate for that purpose. The seventh and eighth clauses of the will read as follows: "(7) Any of the rest and residue of my estate that may remain unexpended at the decease of my said wife, I give, devise, and bequeath to the aforesaid Edgar M. Clossey, to him and his heirs, forever. (8) I hereby authorize my trustees above named to sell and dispose of any or all of the real estate of which I may die seised and possessed, in their discretion, without being obliged to obtain an order from the court of probate so to do." Clossey and Moore were also by the will named as executors. From the decree of the court of probate approving this will, the widow appealed to the superior court, al

leging as her reasons of appeal, among other things, that at the time of making said will the testator was not of sound mind, and also that said will had been obtained by undue influence exerted by said Clossey. The case was tried to the jury, who rendered the following verdict, which was accepted by the court: "In this case the jury finds that there was undue influence exerted upon the testator, Norman Brooks, in the making of a part of said will, to wit, in making paragraphs Nos. 7 and 8, and therefore find that said paragraphs are null and void, and should be set aside, and for nothing had; and we further find the remainder of said last will and testament should be, and hereby is, established and confirmed." The executors now claim that this verdict, especially upon the issue of undue influence, was against the evidence in the cause.

In cases of this kind the question never is whether this court, upon the evidence in a cause, would come to the conclusion reached by the jury, but it is rather whether that conclusion is manifestly an unreasonable one, under all the circumstances,-such a one as no jury, acting fairly and reasonably, would be likely to reach on the evidence. The evidence in such cases is considered with reference to the unreasonableness of the conduct of the jury in reaching their verdict, rather than with reference to its proving or disproving the specific facts in issue; and it may, frequently happen in such cases that the reviewing tribunal can say that, although it would not have arrived at the same conclusion as the jury, yet it is not contrary to law or reason to have arrived at it. The question for this court in this case is not so much whether, in our opinion, the evidence proves or disproves the existence and exercise of undue influence, as it is whether the conduct of the jury in finding, from that evidence, that certain portions of the will were obtained by such influence, was plainly unreasonable under the circumstances; whether the view they took of the matter is a permissible one at all. The prin-' ciple involved in such cases has found concrete expression in many of our own reports, as a working rule or test for determining when, in cases of this kind, a new trial will be granted or refused. In Johnson v. Norton, 64 Conn. 134, 135, 29 Atl. 242, it is said that a verdict will be set aside "only when manifest injustice has been done by the verdict, and the wrong is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they, or some of them, were influenced by corruption, prejudice, or partiality." This is, in substance, the rule as stated in Derwort v. Loomer, 21 Conn. 245, 252, in Waters v. Bristol, 26 Conn. 398, 404, and is the statement of the rule sanctioned and illustrated by all our decisions on this subject.

Furthermore, the chief complaint in this