On the other hand, Treasurer Benson insists that the negotiations never resulted in an unconditional agreement on his part or on the part of Chas. C. Benson & Co. to buy any part of the bonds; that the bonds were never delivered to Chas. C. Benson & Co., but were in his hands and possession as treasurer of the defendant corporation, and were deposited and held in a safety deposit box rented by the corporation; that, so holding the bonds as treasurer, and being authorized by the directors to dispose of them at 90, he took $11,000 of them at that price and paid the amount into the treasury of the corporation; that the balance of the bonds thereafter remained in the safety deposit box of the defendant corporation, and that he never had possession or control of them otherwise than as treasurer of the corporation.

In support of the plaintiffs' contention that there was an actual sale and delivery to Benson & Co. of the bonds of the corporation of the par value of $30,000, President Elliott testifies that, while the question of procuring the necessary funds for the construction of the plant was under .consideration, Benson said to him, in substance, that he would personally "help him out on the bonds"; that on another occasion Benson expressly stated that "he would take $30,000 worth of the bonds and pay 90 cents on the dollar"; that, as he got on the train to return to Lewiston, he said, "You understand this time I am only taking $30,000 at $27,000," and that he "signed and delivered to Mr. Benson $35,000 of the bonds," and has never seen them since. But he admits that all the conversation he ever had with Mr. Benson with reference to the purchase of $30,000 of the bonds for $27,000 took place before the bonds were signed, and that he never made any agreement with him in regard to the remaining $5,000, in the event that $27.000 should prove insufficient. The plaintiff Kerr and Judson A. Record also gave testimony tending to show that Benson admitted that he was to take $30,000 of the bonds for $27,000.

In his examination on oath, Benson states that, upon the representation and assumption that $27,000 would be sufficient to pay

take to aid in providing that amount of cap ital and expected to take bonds at 90 cents on the dollar for whatever money he furnished, but he emphatically denies that he ever made any contract with the defendant corporation to purchase any specific number or amount of the bonds of that company, and denies that he ever made any such statement to Mr. Elliott or any other person. He says that at one time President Elliott asked him to sign a contract to take the bonds, and that he refused to sign a contract, and told Mr. Elliott that he would not obligate himself in any way to take any stated amount of bonds. He admits that he received $11,000 of the bonds as a purchaser at 90 cents on a dollar, and used them as collateral security in raising $10,000 which he placed to the credit of the defendant corporation in his account as treasurer, and disbursed the entire amount in paying the debts of the company, with the exception of $2.06, which he had in his possession as treasurer at the time of the service of the trustee writs upon him. He further states that no other bonds were ever delivered to him as a purchaser, and that the balance of $24,000 remained in the safe deposit box rented by the defendant corporation, and have never been delivered to him or been in his possession otherwise than as treasurer of the defendant company.

that he

It also appears in testimony that Mr. Benson in giving his reasons for not furnishing any more money stated "that the proposition was going to cost $3,000 more than Mr. Elliott had represented to him; had made arrangements with the bank to furnish the money and take these bonds as collateral, and to furnish it as fast as the thing developed, and they had refused to furnish the money, and consequently he should stop."

[1-3] But the question presented for the determination of the court in these cases is whether Benson was indebted to the defendant corporation for bonds delivered to him as a purchaser by virtue of an absolute contract of sale upon which the corporation might have maintained an action for the price of the bonds. If Benson had agreed to purchase $30,000 of the bonds, and only $11,000 of them were actually delivered to him, as a purchaser, his refusal to accept and pay for the balance would simply be a breach of an executory contract, which might afford a cause of action by the defendant company to recover unliquidated damages, but would not render Benson chargeable as trustee for the price of the bonds. His reasons for refusing to carry out such an executory contract would be obviously immaterial in the cases now before the court. But upon the question whether these bonds were delivered to Benson as a purchaser, or whether they were delivered to him as treasurer only, and

ficient to comfortably maintain her, the execudeemed necessary, and that at the widow's tor might use as much of the principal as he death the estate then remaining should go to testator's two stepsons, and to his own son in stated proportions. Held, that the remainders vested in the son and stepsons at testator's death subject to divestiture by execution of the trustee's power of disposal during the widow's lifetime, and that the executor was not emdistributing the estate on death of the widow. powered to sell the land for the purpose of [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1488-1510; Dec. Dig. § 634.*] 3. WILLS (§ 629*)-CONSTRUCTION-REMAIN

of the corporation, at 50 cents on a dollar, in payment of the claim. It is also worthy of notice that the $5,000 of bonds which President Elliott admits were not sold to Benson do not appear to have been separated from the others but were delivered into the custody of the treasurer with the $30,000 alleged to have been sold, and remained in the company's safe deposit box precisely the same as the others. And, finally, it must be admitted that there is an element of improbability involved in the proposition that a business corporation would sell and deliver $30,000 of bonds, on credit, leaving the time and conditions of payment to be fixed by the purchaser.

It is therefore the opinion of the court that Benson acquired title only to the $11,000 of bonds which he used as collateral, and for which he accounted to the defendant corporation at 90 cents on a dollar, and that at the time of the service of the trustee writs upon him he was not personally indebted to the company for any bonds sold and delivered to him. It is admitted that

the small balance of $2.06 was held by him as treasurer of the corporation, and a "treasurer cannot be charged as the trustee of his corporation for its property in his official custody for the reason that he is quoad

hoc the corporation." Donnell v. Railroad Co., 73 Me. 567. The certificate in each case must therefore be:

Trustee discharged.

DANFORTH v. REED et al.

DERS.

strued to be contingent if, consistently with testator's intention, it may be deemed vested. [Ed. Note.-For other cases, see Wills, Cent., Dig. §§ 1461, 1462; Dec. Dig. § 629.*]

A testamentary remainder will not be con

Report from Supreme Judicial Court, Kennebec County.

Bill by Frederic Danforth, executor, against Charles F. Reed and others. On report. Decree directed.

Bill in equity to obtain the construction of the will of Robinson Reed, late of GardiAn agreed statement ner, deceased testate.

of facts was filed, and the case reported to the law court for determination. The case is stated in the opinion.

Argued before WHITEHOUSE, C. J., and SAVAGE, KING, BIRD, HALEY, and HANSON, JJ.

Charles A. Knight, for plaintiff. A. C. Stilphen, for Charles F. Reed and George E. Reed. George W. Heselton, for Frank A. Reed.

WHITEHOUSE, C. J. This bill in equity

was brought for the purpose of obtaining a judicial construction of the will of Robinson Reed, late of Gardiner, and was reported to the law court for final determination upon ond, and third items of the will are as folthe agreed statement of facts. The first, sec

lows:

"Item I. I direct all my property, real and personal, to be held in trust by my executor, hereinafter named, and him to invest and reinvest the same as in his judgment may be most advisable and the net income thereof as the same accrues he shall pay over to my beloved wife Sabrina Maria Reed so long as

1912.)

1. WILLS (§ 439*)-CONSTRUCTION.

In construing a will, testator's intention collected from the whole instrument and considered with reference to all the surrounding circumstances, his family, the nature, amount, and situation of his property, and his avowed or manifest purpose, should govern.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*] 2. WILLS (8 634*)-CONSTRUCTION-POWER OF SALE.

A will directed that all testator's property should be held in trust for payment of the income to his widow during her life, gave her the use of the homestead and its furniture, and

pancy of my homestead and all the furniture therein, to have and use the same as she may desire, and to make such change, alteration and improvements in said homestead as she may desire, and if she should so wish she may dispose of my said household furniture to the children in such manner as may to her seem fitting, giving to each his proportional value thereof. If the income of my property should not be sufficient for the comfortable maintenance of my said wife, I hereby direct my executor to use so much of the principal of my property as from time

"Item II. At the decease of my said wife, I give, bequeath and devise all the rest and residue of my estate then remaining to my two stepsons, children of my said wife, and to my son in the following proportions, to wit:

"To my stepson Charles F. Burke, otherwise known as Charles F. Reed, one seventh part of said remainder, to my stepson George E. Burke, otherwise known as George E. Reed, two sevenths of said remainder, to my own son Frank A. Reed four sevenths of said remainder, the same to be paid to my stepsons and son as soon as may be after the decease of my said wife.

"Item III. I hereby appoint Frederic Danforth, Esq. of Gardiner, executor of this my last will and testament."

The following facts appear in the agreed statement: The testator left a widow, Sabrina Maria Reed, one son, Frank A. Reed, and two stepsons, George E. and Charles F. Burke, known also as George E. and Charles F. Reed, who were the legatees named in the will. At the time of the testator's death, May 24, 1888, his estate consisted of a brick store appraised at $5,000, then occupied by the defendants Frank A. Reed and George E. Burke, as copartners, a homestead appraised at $2,500, $4,202.32 in cash and notes, and household goods appraised at $50. The plaintiff administered the estate as executor, and, according to his second account in November, 1907, had a balance of personal estate amounting to $3,216. After the death of the testator, the homestead was occupied by the widow until her decease February 13, 1911, and the plaintiff had acted as trustee in the management of the entire estate. The store was rented at the time of the death of the testator, and was afterward rented by the trustee. At the time of the widow's decease, the value of the store was approximately $6,000, the homestead $3,000, and the personal property in the hands of the trustee was substantially of the same value as in 1907, namely, $3,216. There were no debts outstanding against the estate. After the decease of the widow, the plaintiff petitioned as executor for license to sell the real estate for the purpose of making a division of the entire estate among the residuary legatees. Thereupon a question arose as to the power of the trustee to sell the real estate after the death of the widow under the circumstances stated, and the court is asked to determine whether the plaintiff can now legally sell the real estate and give a valid title to the purchaser under the provisions of the will, or whether the title to the real estate was vested in the legatees and the executor's authority limited to the distribution of the personal property.

[1, 2] In considering the proper construction to be given to this will for the purpose

language of the whole instrument and examined with reference to all the surrounding circumstances, his family, the nature, amount, and situation of his property, and his avowed or manifest purpose, is to have a controlling influence in the interpretation of the testamentary provisions especially involved in the inquiry. In the light of this elementary rule of construction, and of the facts and circumstances disclosed by the agreed statement, the well-recognized and familiar principles of law respecting life estates with a qualified or unqualified power of disposal, and the doctrine of vested and contingent remainders, lead irresistibly to the conclusion that the title to the real estate here in question was vested in the son and stepsons, in the proportions specified in the second item of the will, at the death of the testator, but liable to be divested by the execution of the trustee's power of disposal during the lifetime of the widow; the actual possession and enjoyment of it by these sons being postponed in any event until the death of the widow.

The thoughtful and clearly expressed terms of the first item of the will disclose a manífest desire and purpose on the part of the testator to give to his wife the use and occupation of "the homestead and all the furniture therein," and to provide ample means for her support during her lifetime. He directs the executor to hold all his property real and personal in trust, to invest and reinvest it as he may deem most advisable, and pay over to his wife the net income of it as long as she shall live; and, if the income of the property should prove insufficient for her "comfortable maintenance," the executor is directed to use so much of the principal as he may deem necessary in addition to the income. In this item the testator also gave to his wife direct authority to make such alterations and improvements in the homestead as she might desire and to dispose of the household furniture among the children "in such manner as may seem to her fitting, giv ing to each his proportional value thereof."

But knowing the style of life to which his wife had been accustomed, and that her wants would be few and simple, the testator undoubtedly felt well assured that her "comfortable maintenance" after his death would never involve the necessity of disposing of any of the real estate, and but slight, if any, encroachment upon the principal of the personal estate. It appears that the store was occupied by his son and one of his stepsons as copartners at the time of his death, and. as his death occurred about six weeks after the date of the will, it may fairly be inferred that the store was so occupied at the date of the will, and that it was his desire and expectation that the title to the store should remain in the family, and not be transferred to strangers.

will the language is: "At the decease of my I said wife I give, bequeath and devise all the rest and residue of my estate then remaining to my two stepsons and to my son," etc. It is evident from the use of the word "devise" in this provision, that the testator anticipated that at the decease of the widow there would be both real and personal property belonging to the estate. It is true that in the clause specifying the aliquot part given to his son and each stepson, the language is, "The same to be paid to my stepsons and son as soon as may be after the decease of my said wife," and that the term "to be paid" is ordinarily applicable exclusively to personal property. But the term here would have its proper field of operation in the distribution of the undiminished personal estate amounting to $3,216, and the use of the phrase in this connection should not control the intention of the testator gathered from all parts of the will and the existing circumstances considered in relation to each other. The real es

tate had vested in the sons at the death of the testator, to be divested only upon the conditions above stated. After the death of the widow and the termination of the trust, it was no longer subject to the control of the plaintiff either as trustee or executor. By the aid of the personal property of $3,216, the division of the estate into the proportional parts named by the testator can probably be conveniently effected without the necessity of exposing the store to a public sale.

[3] This conclusion that the real estate passed to the sons as a vested remainder is in harmony with the established rules of law and the recent decisions of this court. In the first place, it is among the elementary rules of construction that no remainder will be construed to be contingent which may consistently with the intention of the testator be deemed vested; and in Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037, it was held by this court that "according to principle and the weight of authority a remainder is not made contingent by an uncertainty as to the amount of property that may remain undisposed of at the expiration of the particular estate, the life tenant having the power of disposal." See, also, Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Ducker v. Burnham, 146 Ill. 9, 34 N. E. 558; Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310, and Welsh v. Woodbury, 144 Mass. 542, 11 N. E. 762.

erty after the payment of the debts and funeral charges of the widow." Decree accordingly.

MILLER v. HADDOCK. (Supreme Judicial Court of Maine. April 1, 1912.)

1. BROKERS (8 54*)-REAL ESTATE BROKERS— COMMISSIONS-RIGHT TO.

To entitle a real estate broker to a commission for procuring a prospective purchaser, he must produce a customer willing and prethe price and on the terms given by the prinpared to purchase and pay for the property at cipal to the broker.

[Ed. Note. For other cases, see Brokers, Dec. Dig. § 54.*]

2. TRIAL (§§ 252, 260*)-INSTRUCTIONS-REFUSAL-CONFORMITY TO EVIDENCE.

In an action for a real estate broker's commission, it was proper to refuse to instruct that the fact that payments were not made by the purchaser would not bar plaintiff's right to recover, if a sale had been made, where it and the question as to whether a sale had been was admitted that payments were not made, made was fully covered by the instructions given.

[Ed. Note. For other cases, see Trial, Dec. Dig. §§ 252, 260.*]

Exceptions from Superior Court, Cumberland County.

Action in assumpsit, by Fred M. Miller against Carrie Haddock, brought by a real estate broker to recover the sum of $25 for services in the alleged sale of a bakery in the city of Portland. The action was commenced in the Portland municipal court, and by appeal on the part of the defendant was transferred to the superior court, where a trial was had, and the verdict was for the defendant. The plaintiff excepted to a certain ruling, and also filed a general motion for a new trial. Motion and exception overruled.

Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

Connellan & Connellan, for plaintiff. Harry E. Nixon, for defendant.

HANSON, J. This is an action of assumpsit, brought by a real estate broker to recover the sum of $25 for services in the alleged sale of a certain bakery in the city of Portland; the plaintiff claiming that he procured a customer on the terms agreed upon, and was thereupon entitled to payment, notwithstanding the purchaser failed to carry out the agreement to purchase.

The jury found for the defendant, and the case comes before the court on motion and exceptions by the plaintiff.

It is accordingly the opinion of the court that, under the provisions of the will and the circumstances of this case, the plaintiff is not clothed with power to sell the real estate of Robinson Reed, the title thereto having vested in the son and stepsons at the death of the testator as above stated, and that "the plaintiff's authority is now limited solely to a distribution of the personal prop

[1] As to the motion: The plaintiff produced a "sale contract," signed by the defendant and one Donahue, the alleged purchaser, in which it is stipulated that the defendant "agreed to sell to said Donahue"