"If any or either of my children shall enter a caveat against this my will, he or they shall pay all expenses of both sides," is a good condition in a will, without a gift over, against a devisee taking real estate under the will.*

The orphans' court having ordered the costs and expenses of litigation, on caveat filed § 177, orphans' court act the widow, who was the legatee of the personal estate charged with the payment of debts and expenses, may have relief against the devisee who filed the caveat.

On appeal from a decree of the court of chancery.

Oscar Jeffrey, for appellant. J. G. Shipman & Son, for appellee. SCUDDER, J. John G. Hoit, late of the township of Oxford, in the county of Warren, and State of New Jersey, by last will and testament duly executed, devised and bequeathed to his wife, Sarah A. Hoit, the appellant, certain lands and all his personal property, and she was to pay all his just debts, funeral and other expenses. In subsequent parts of the will he devised severally to his sons, tracts of lands for certain estates and on limitations therein contained.

The will concludes with this sentence: 'If any or either of my children shall enter a caveat against this my will, he or they shall pay all the expenses of both sides." Nathan Hoit, one of the testator's sons and a devisee in his will, did enter a caveat against the will, the orphans' court certified the questions involved in the controversy into the circuit court of the same county, and they were tried upon an issue framed, a verdict found for the proponent, which was certified and returned to the orphans' court, and the will admitted to probate. The court made an order concerning the costs, expenses and allowance of counsel fees, under section 20 and section 177 - amendatory of § 169 of the orphans' court act, adjudging that the contestant had reasonable cause for contesting the validity of will, and that the cost and expenses of the litigation as well on the part of the contestant as on the part of the executrix propounding said will for probate, be paid out of the estate of the deceased.

The appellant, who was the executrix named in the will, paid these costs and expenses out of her legacy and portion of the estate, and filed a bill in chancery against the contestant, Nathan Hoit, praying that he might be decreed to pay her out of his said devise, or otherwise, all the costs she had been compelled to pay by reason of the costs and expenses in contesting the caveat against the said will and testament. To this bill a general demurrer was filed by the defendant, and the demurrer, on hearing, was sustained, and the bill dismissed, with costs. From this decree, advised by the vice-chancellor, the present appeal was taken.

The appellee having taken the benefit of the devise of land to him under the will of his father, there would seem to be no reason why he should not reimburse the appellant for the costs and expenses paid by her consequent on the entry on a caveat against the will by him con

*In Thompson v. Gaut, 14 Lea, 310, it was held that a condition annulling a devise or bequest in case of an attempt by the devisee or legatee to break the will, is valid. However injudicious conditions annexed to a gift may be, if they are unambiguous. and not unlawful, they may not be rejected. Matter of Cole, 3 Dem. (N. Y.) 203.

trary to its expressed condition, and with the consequence therein imposed.

The intention of the testator is clearly expressed, that if either of his children, devisees under his will, contested, he shall pay all expenses incurred. There is no room for any other construction.

The only question is whether this is a legal condition or restriction in this case. Conditions in wills against disputing their validity with the consequence of forfeiture of bequests, or devises therein, if broken, have often been considered in the courts with attempts at artificial distinctions between legacies of personal property and of real estate, and whether there be probable cause for contesting the will, probabillis causa litigandi, and any gift over or not. It is said that conditions subsequent as to gifts of personalty are, in accordance with the rule of the civil law, held to be void in terrorem, merely, if there be no gift over; but if there be a gift over the condition is good, such gift over being sufficient evidence that they were not meant to be in terrorem only. But it has been held also that this doctrine of the necessity of a gift over has never been applied to devises of real estate. Powell v. Morgan, 2 Vern. 90; Lloyd v. Spillet, 3 P. Wms. 344; Morris v. Burroughs, 1 Atk. 404; Bradford v. Bradford, 19 Ohio, 546; Chew's Appeal, 45 Penn. St. 228; Jarman Wills (R. & T. ed.), 582; 2 Wms. Exrs., 1146; 2 Redf. Wills, 298, § 34; Theobald Wills, 452-455.

It is not material to determine in this case whether in bequests of personalty the artificial rules above named would be applied in this State, for the appellee is a devisee of real estate, and under the case of Cook v. Turner, 15 M. & W. 727; S. C., 14 Sim. 493, a condition for revocation, if the devisee shall dispute the will, is valid in law.

Upon another and a broader principle of equity the appellee should not be allowed to defeat the intention of the testator that there should be no litigation over his will at the expense of the estate, or, in this case, at the expense of his widow, the legatee of the portion of his property charged with the payment of debts and expenses. This is not strictly the doctrine of election between repugnant gifts, but a rule of equitable construction that a person cannot accept and reject the same instrument, and that there is an implied condition that he who accepts a benefit under it shall adopt the whole by conforming to all its provisions. This is the rule on which the doctrine of election is founded. Hyde v. Baldwin, 17 Pick. 303; Gretton v. Haward, 1 Swanst. 409; Dillon v. Parker, id. 394; Streatfield v. Streatfield, Cas. Temp. Talb. 183; 1 Lead. Cases Equity, W. & T. 273; 2 Story Eq. 1077.

This devisee has opposed the intention of the testator by disputing his will and casting the burden of the expense of litigation on the estate, thus holding the full amount of his legacy under the will, without any diminution or compensation for his breach of this condition. It is not a case of forfeiture by the terms of the will but one for compensation out of the fund received by him from the testator, which must be met, unless there be some exception from the above-cited general equitable rule, by which he may keep what he has received and defy the purpose of the giver. This is said to be the effect of section 177 of the orphans' court act, by which that court made and has ordered

that the costs and expenses of contesting the probate of the will shall be paid out of the estate of the deceased; and that the provisions of the will, imposing the payment of the costs and expenses of the litigation of the contestant, is void, because against this statute and the declared policy of the law. But conditions in wills trenching on the liberty of the law are described to be such as are in general restraint of marriage, trade, agriculture, and the like, in which the State has an interest, and not as to who shall take under a will, which can only affect those who are directly concerned. There is no express prohibition of the disposition of property by will in such terms as the testator shall see fit to impose, nor can such a purpose be inferred from the terms of this act. The orphans' court may order in all cases, and in the first instance, by whom the costs and expenses shall be paid, but as the will of the testator is only before it for granting or refusing probate and there is no jurisdiction to construe its disposition of property, it has not the power to annul the will in whole or in part. After the order has been made and enforced for the payment of costs and expenses, as has been done in the orphans' court in this case, the jurisdiction of a court of equity remains to construe the will and compel the person who has taken a benefit under it to comply with the condition on which he has accepted the bounty of the testator. Full effect is given to this statute by an order made for costs and expenses in all cases where there is no equity in the will itself beyond the control of the court of probate; but if a party be aggrieved by an order made contrary to the provision of the will, as in this case, he may come to a court of equity and obtain relief.

This is the case presented in the bill of complaint to which a demurrer has been filed for want of equity, and the order sustaining the demurrer and dismissing the bill should be reversed, and the demurrer overruled, with costs.

Judgment reversed.

BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON v. BUCK.

A statute entitled "An act to make certain roads, constructed by commissioners under the authority of the legislature, county roads, and to provide for the payment of the expenses of constructing by the county, and for the mode of maintaining and repairing the same "-Pamph. L. 1883, 225 - Held to be unconstitutional as applying to only one county.

In error to supreme court. The opinion states the case.

J. H. Lippincott, for plaintiffs. Allan L. McDermott, for defendants. BEASLEY, Ch. J. The statute, entitled "An act to make certain roads, constructed by commissioners under the authority of the legislature, county roads, and to provide for the payment of the expenses of constructing by the county, and for the mode of maintaining and repairing the same Pamph. L. 1883, 225 is the foundation of this suit, and as we think that this act is applicable to the county of Hudson alone, and can never be applied in any other locality, and is, therefore, plainly unconstitutional, the judgment in the case must be reversed.

John W. Wartman and John C. Crandall, for appellant. Peter L. Voorhees, for respondent.

BEASLEY, Ch. J. This case comes before the court at this time on an order granting a rehearing.

The case bears now an entirely different aspect from what it did when presented to the court in the first instance. From the record as it was then printed and put in the hands of the judges there appeared to be an insuperable defect in the advertisement of the sale of the property in question, and on that ground the court concluded that it was neces sary to reverse the decree. But it has now on the reargument been manifested that all the proofs in the case were not before the court, and from the case as now perfected we have arrived at a conclusion the opposite of our former determination. The ground of decision now is that we find that there was evidence before the vice-chancellor on the subject of putting up the requisite notice advertising the sale, and that there was a decision on the point, which decision has not been appealed from. The decree of the court of chancery is, therefore, affirmed. Costs are not given to either side.

SUPREME COURT OF VERMONT.

WEBB V. LAIRD.

January 12, 1887.

MILL-OWNERS · DAMAGES - WATER RIGHTS.

When two mill-owners, whose mills are on the same stream, one below the other, have a mutual interest in the upper dam, used as a reservoir for storing water to propel the machinery of both mills, they are, in the absence of any contract, under a mutual duty to maintain the dam; and a court of equity will compel each to contribute to its maintenance in proportion to his relative interest, so long as he exercises his right to the water. And the lower owner is not entitled to damages occasioned by the upper owner's unnecessary delay in repairing the reservoir dam.

INJUNCTION DAMAGES.

A party is not entitled to damages resulting from obedience to an injunction procured by himself, when he knows the situation of the property affected by it. CROSS-BILL.

The cause is remanded for further reference under the cross-bill to determine the relative rights of each party to the water power, and apportionment of the expenses incurred in its maintenance.

Bill in chancery. Heard on the pleadings and a special master's report, September term, 1885, Washington county. POWERS, chancellor. Bill pro forma dismissed. It was alleged in the bill that W. C. Peck, March 1, 1877, in pursuance of a previous contract, deeded the grist

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mill to the orator, and subsequently the saw-mill to the defendant.; that "the orator's mill is dependent on the water of the pond at the saw-mill, which is some twenty to thirty rods above the grist-mill, for his water to do his grinding at his mill aforesaid, as the water in said stream, at most seasons of the year, is insufficient to do the grinding at said mill." The deed, as stated in the opinion, was set out in the bill. It was also alleged that defendant had torn down the old dam, and built a new one that orator believed the new dam was insufficient and dangerous; that defendant "has begun to tear down the saw-mill flume that furnished your orator's mill with water through the waste-gate," etc.; that he does not intend to leave any flume; that he has not left any opening in the new dam as low by about two feet as the bottom of the saw-mill flume; that the orator has a right by his deed to draw water at all times from the flume; that "by the terms of said conveyance it was and is the duty of said Peck and his grantees to keep and maintain a flume to the saw-mill, in the same condition it was at the date of the contract and deed." The prayer was: That defendant be enjoined from tearing away said flume, and that he be ordered to restore the same as it was; that the rights of the orator be fixed; that defendant be restrained from preventing the orator from drawing water from the flume; that defendant be ordered to cut down the dam so that the "orator can draw the water as low as by the old dam," etc.; and for further relief. The orator obtained an injunction, enjoining the defendant from "destroying the flume at the saw-mill, or from hindering the orator from drawing water at the saw-mill flume for the use of the orator's mill as he has been in the habit of using the same; and if the defendant has removed the waste-gate, that he shall restore the same to its former place" "that the defendant be enjoined from shutting the water out of the flume aforesaid, so that the orator cannot use the same." It was agreed that defendant's answer should stand on hearing as a cross-bill.

The answer alleged that the dam, in the fall of 1881, had become decayed, worthless and needed to be built over; that the gate and flume needed repairing; that defendant could not repair them without shutting out the water; that while he was repairing the dam the orator brought his bill and caused the injunction to be served on him; that defendant had no counsel, but acted under the injunction, as he supposed it was his duty to do. The master found: At the saw-mill there was a log dam and a large pond of water; a flue was connected with this dam, from which a pen-stock carried water to the saw-mill wheels. Leading from the flume there was a waste-gate, through which water was allowed to escape into the bed of the stream for the use of the grist-mill below, when a sufficient quantity did not flow over the dam or through the saw-mill wheels for that purpose. When the saw-mill was in operation the orator had no use for the waste-gate; but when it was not, he opened the waste-gate by a wire strung from the grist-mill to the said fluine. In the summer of 1881 a new dam was required. On or about October 1, 1881, the defendant commenced work on the dam. He first drew all the water from the pond and removed the waste-gate. The new dam was erected just below the old one. It went