if to the substance or gift of legacy, it is contingent, because such appears to be the intention of the testator." At the time of the death of William Bowe there were six children of William S. Bowe entitled to shares under the above item, including Margaret Bowe, one of the But there is in this case an additional children of William S. Bowe. In March, feature, not included in the above rule, and 1911, Margaret Bowe died at the age of everywhere considered an important and de14 years and letters of administration were termining one. Here is the case of a presgranted upon her estate to her father, Wil-ent gift in trust, with a postponement of liam S. Bowe. The executor of the estate payment until the beneficiary attains the of William Bowe, the Equitable Guarantee & Trust Company, paid over to the trustee in the lifetime of Margaret Bowe the sum of $90,000 under item 13, there being nine grandchildren of the testator, children of his three sons, James H. Bowe, Joseph A. Bowe and William S. Bowe. The question is whether Margaret Bowe had a vested or contingent legacy. If vested, it is now pay able to her administrator, and if contingent it is payable to the executor of William Bowe for distribution among his next of kin as intestate property, the residuary clause of the will of William Bowe having heretofore been declared to be invalid. age of 30 years, and with a gift of the whole income in the meantime for the maintenance and education of the beneficiary. True the income is not by express words made payable to the beneficiary, and the will does not specifically declare to whom the payment of income is to be made, but it does distinctly appear that the whole of it is to be so applied and the intention to benefit the grandchild prior to the time she arrives at 30 years is surely indicated thereby. Indeed, no reason appears why the whole of the net income is not payable to the grandchild, or, during her minority, to her guardian. There is no discretion in the trustee to apply all or part only of the income towards the maintenance and education of the grandchild, nor is the trustee limited in so applying a designated portion or share of the income, or a certain sum as part of it. It is the whole of the net income which is to be so paid and applied. The amount to be so applied is not so large as to indicate an intention of the testator to restrict the trustee in paying over all of it for the grandchild. It was urged on behalf of the next of. kin of William Bowe, the testator, that Margaret Bowe did not at any time have a vested interest in the gift, because there was in the will no gift to her, directly, The evident and expressed intention of either of principal or of income for main- the testator is to aid certain named sons, tenance, other than in the direction given including William S. Bowe, by giving a certo the trustee to pay the grandchildren as tain sum of money for each of his children, they should respectively arrive at the age to be held by a trustee, the income received of 30 years, and because there was no an- from the investment thereof to be used for tecedent estate or interest given to another the maintenance and education of each person, thereby postponing the enjoyment grandchild until they severally attained 30 of the fund for the benefit of the estate, years of age and the principal to be then or to let in a prior estate. In support of paid to the several grandchildren. It is not this contention there was cited Leake v. a gift of $90,000, a sum of money arrived Robinson, 3 Meriv. 363; Batsford v. Keb- at by multiplying the sum of $10,000 by nine, bell, 3 Ves. 363; Bevan's Trusts, 34 Ch. the aggregate number of the children of Div. 716, 719; 2 Jarman, Wills (5th Ed.) the three sons of the testator, named in the 457; Newman v. Newman, 10 Sim. 51; Ford will, to be held in trust for a class, viz., v. Rawlins, 1 Sim. & St. 328; Frost v. Mc-grandchildren of the testator, children of his Caulley, 7 Del. Ch. 162, 44 Atl. 779; Bil- said three sons. It is a gift of $10,000 to lingsley v. Wills, 3 Atk. 219; Seibert's Appeal, 13 Pa. 501; King, Adm'r, v. Crawford, 17 Serg. & R. (Pa.) 118; Moore v. Smith, 9 Watts (Pa.) 403; Walker v. Mower, 16 Beav. 365; Pleasonton's Appeal, 99 Pa. 362; Dougherty v. Thompson, 167 N. Y. 472, 60 N. E. 760. [1] In Conwell's Adm'r v. Heavilo, 5 Har. 296, Booth, C. J., laid down a rule which is well settled elsewhere, as well as here: "When a legacy is directed to be paid at a future time, or on a future event, it is vested or contingent, according to the intent or meaning of the testator, as expressed in his will. If the time or event is annexed each such grandchild to be held in trust for it. With respect to Margaret Bowe, the child of William S. Bowe, the gift is in effect this: "I give to the Equitable Guarantee & Trust Company the sum of $10,000 to hold and invest the same and pay over the net income thereof for the maintenance and education of my grandchild, Margaret Bowe, daughter of William S. Bowe, until she arrives at the age of thirty years, and then to pay over the principal sum to her free and discharged from all trusts." The principles of law applicable to such a gift are clear and well settled. In bequests terim interest to or for the benefit of the if the only gift be in the direction to pay legatee, prima facie vests the principal, the gift would otherwise be contingent on though if such words had not been used the her attaining the specified age, the gift in legacy would not have been treated as vest- the interim of the whole of the net income ed. Thus a bequest to A., when he attains for her maintenance and education clearly a given age, the interest to be paid to him makes the gift a vested one, and, though she in the meantime, is vested, and if A. dies died under 30 years of age, the principal is under that age, his representative will be now payable to her administrator. entitled. The rule is the same where the in- Let a decree be entered accordingly. terest is given to other persons to be applied for the benefit of the legatee. Hawkins on Wills, *227; 2 Wms. on Ex'rs, *1097 et seq.; Hanson v. Graham, 6 Ves. 239; Hammond v. Maule, 1 Coll. 281; Re Hart's Trusts, 3 De G. & J. 202; Frost v. McCaulley, 7 Del. Ch. 162, 44 Atl. 779; Provenchere's Appeal, 1. COURTS (§ 18*)-INQUISITION OF LUNACYJURISDICTION. 67 Pa. 463. In Frost v. McCaulley, supra, the gift was to trustees of a share of an estate in trust, in substance: "The income I give to A. [a granddaughter], payable one-half yearly for ten years, after which I give the same to her." It was held that the words "the same" meant the principal, and that she took a vested interest from the testator's death. "The gift to her of the principal, without the gift of the income, during the interval between the death of the testator and the expiration of 10 years thereafter, would have made her share a contingent legacy, but the appropriation of the accruing interest during the interval for her benefit makes the gift, in substance, an absolute vested legacy, divided into two distinct portions or interests, for the purpose of postponing not the vesting but the possession only." Judge Sharswood, in Provenchere's Appeal, supra, thus states the rule: "Thus it is true, as a general rule, that where the time or other condition is annexed to the substance of the gift and not merely to the payment, the legacy is contingent; but a well-recognized exception to this rule is that where interest, whether by way of maintenance or otherwise, is given to the legatee in the meantime, the legacy shall, notwithstanding the gift itself appears to be postponed, vest immediately on the death of the testator." (9 Del. Ch. 332) In re WILSON. (Court of Chancery of Delaware. Feb. 5, Chancery has jurisdiction to issue a commission de lunatico inquirendo respecting a person who has real estate within the jurisdiction, though he be a nonresident. Cent. Dig. §§ 50-68; Dec. Dig. § 18.*] [Ed. Note.-For other cases, see Courts, 2. INSANE PERSONS (§ 13*) — INQUISITION COMMISSION DE LUNATICO INQUIRENDO NOTICE. Where there was no chancery rule for the giving of notice to an alleged lunatic upon the quirendo, it may be given in such a way that filing of a petition for a writ of de lunatico inthe chancellor will be sure that the supposed lunatic, if in such condition that a notice will be proper and useful, has knowledge of the proceeding, though living in another jurisdiction. [Ed. Note.-For other cases, see Insane Persons, Cent. Dig. § 21; Dec. Dig. § 13.*] Petition by Florence A. Horne for a writ to inquire into the lunacy of William F. Wilson. Granted. John Biggs, for petitioner. THE CHANCELLOR. A petition has been filed by the sister of William F. Wilson stating that he was formerly domiciled in Delaware, and afterwards in Pennsylvania, and that he is now at a sanatarium in Maryland, at which last place he has been under treatment for 71⁄2 years last past. It is further alleged that he is a lunatic; that he is seised and entitled to real and personal estate in the state of Delaware; and that there has [2] These settled general principles are not been a committee, guardian, or trustee said to be inapplicable here because the in-appointed for the care of him or his estate come is payable to the father of Margaret in any other one of the United States, and Bowe and not to her, the gift having been the petition asks that a writ may be issued made "to provide for some of my sons," to inquire as to his sanity. naming them. But this is not a reasonable view. The gift is to the grandchildren primarily and the reason for the gift is that so the testator's sons would be helped, for they would otherwise be obliged to maintain and educate their children. This indirect way the testator adopted in order."to provide for" his three sons. It is clear then that the gift in trust for Margaret Bowe was a direct gift of the principal. the payment thereof being postponed until her arrival at 30 years of age, and so it was a vested legacy in trust. But even There being no reported decision respecting the power of the Chancellor to order an inquisition under such circumstances, I have given careful consideration to the matter. The general provision conferring jurisdiction upon the Court of Chancery respecting lunatics is, as follows: "The Court of Chancery shall have care of the insane persons above the age of twenty-one years so far as to appoint trustees for such persons, to take charge of them and manage their estates. But before such appointment the Chancellor shall issue a writ •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes to inquire by a jury and determine whether or trustee of the person of the lunatic (as the person named is insane." The Chancellor is also empowered to sell real estate of the lunatic, invest the proceeds and direct expenditures of principal, as well as of income. In the same chapter it is provided that a trustee appointed in any other one of the United States for a person in such foreign state, having property in the state of Delaware, may upon producing here a certain certificate have the rights and powers of trustees appointed by the court here. This court is asked in this present petition to issue a commission to inquire into the lunacy of a person resident in Maryland who owns real and personal property in Delaware, and for whom no committee, guardian, or trustee has been appointed elsewhere. [1] It is clearly settled that a Court of Chancery has, independent of statute, jurisdiction to issue a commission de lunatico inquirendo respecting a person who has real estate within the jurisdiction of the court, though he be a nonresident. Lord Hardwicke so held in the case of Ex parte Southcote, 1 Amb. 109, where he granted a commission concerning a person resident abroad but having an estate in England. This was followed in the case of In re Perkins, 2 Johns. Ch. (N. Y.) 124, by Chancellor Kent, who appointed a commission to inquire into the lunacy of a resident of Massachusetts who owned property in New York, the Chancellor saying: "There is no doubt, from the case of Ex parte Southcote, 1 Amb. 109, that a commission of lunacy may issue against a person resident abroad." See, also, the similar decision of Chancellor Walworth in the case of In re Petit, 2 Paige (N. Y.) 174; In re Gause, 9 Paige (N. Y.) 416; In re Fowler, 2 Barb. Ch. (N. Y.) 305. And see, also, In re Child, 16 N. J. Eq. 498; In re Devausney, 52 N. J. Eq. 502, 28 Atl. 459, in which last case the above and other authorities are fully referred to in an illuminating opinion. distinguished from a committee or trustee of his property) cannot be appointed by a court in a jurisdiction other than that in which the lunatic is domiciled. There are no formulated rules of this court respecting the procedure by the Chancellor; but appended to the rules of practice in the Court of Chancery, revised and established in 1868 by Chancellor Bates, there are certain forms for a petition for a writ de lunatico inquirendo, for the writ, for the notice to be served upon the alleged lunatic, and for the inquisition to be returned by the jurors summoned by the sheriff. The form of the writ which has been uniformly used since that time, if not longer, in addition to inquiring as to sanity of the person alleged to be a lunatic and as to what property is owned by him, commands the sheriff, if so required by the jurors, to cause the alleged lunatic to be produced before the jurors at the execution of the writ, to be there examined; and also requires the sheriff to give at least ten days' notice to the alleged lunatic, if his condition render such notice proper or useful, but if it is not, then to such person as may have custody of him. Where the alleged lunatic is a nonresident it may be difficult to have him produced in person before the jurors, but this is not an insuperable obstacle to the exercise of the clearly established jurisdiction of this court, because, as pointed out by Lord Hardwicke: "No mischief can follow by the granting of the commission, for if the jury are satisfied without inspection, they will find so; if not, they will not make a return, or will return that it does not appear to them that he is an idiot or lunatic." [2] So also as to the matter of notice to the alleged lunatic, which, of course, is very important. Inasmuch as there is no rule or statute prescribing the form or method of giving notice it can be given in such way that the Chancellor will be sure that the supposed lunatic, if in such condition that a notice will be proper and useful, has knowledge of the proceeding, though living in another jurisdiction. In Beall v. Stokes, 95 Ga. 357, 22 S. E. 637, it was held that the superior court in the exercise of its chancery jurisdiction had It should be noted, however, that the juauthority by a receiver to administer such risdiction of the Court of Chancery should of the estate of a lunatic resident in another not be exercised over the person of the lunastate as was situated in Georgia, the adjudi- tic, but only over such property as may be cation of lunacy having been theretofore within this state. Therefore, as the authormade elsewhere. The question as to the is-ity of the court is clearly established, as suance of a commission was not under cor- hereinabove set forth, and there are no fea sideration in the case cited, but only the gen- tures of practice or procedure which intereral powers of a Court of Chancery over the fere with the exercise of the jurisdiction, an property in Georgia belonging to a nonresi- order will be made issuing a commission in dent lunatic, so that this is not authority this case, for the purpose of administering against the foregoing conclusion. Nor are the estate of the person alleged to be a lunathe authorities which hold that a committee tic situated or being in this state. (109 Me. 87) PETTENGILL, ANDREWS & CO. v. KERR v. SAME. (Supreme Judicial Court of Maine. March 25, 1912.) 1. GARNISHMENT (§ 33*)-TRUSTEE PROCESSPERSONS SUBJECT TO-EXECUTORY CON TRACTS. One is not chargeable as trustee for the price of bonds on his breach of an executory contract to buy them. The plaintiff in each case filed a statement alleging that C. C. Benson, named as trustee, purchased of the Rangeley Light & Power Company, the defendant corporation, bonds issued by that company of the par value of $30.000, agreeing to pay therefor the sum of $27.000, being at the rate of 90 cents on the dollar; that in pursuance of such purchase Benson took delivery of the bonds, and paid the 'sum of $10,000 on account thereof; that there is still due from Benson to the defendant company on account of the purchase of these bonds the sum of $17,000; that Benson agreed with the defendant company to purchase on the same terms the remainder of the bonds issued by the defendant com [Ed. Note. For other cases, see Garnishment, Cent. Dig. §§ 54-58; Dec. Dig. § 33.*] 2. GARNISHMENT (§ 164*)-TRUSTEE PROCESS - INDEBTEDNESS OF TRUSTEE- · EVIDENCE SUFFICIENCY. On trustee process, evidence held insuffi-pany of the par value of $5,000 in the event cient to show that the alleged trustee was indebted to the principal defendant. [Ed. Note. For other cases, see Garnishment, Cent. Dig. § 302; Dec. Dig. § 164.*] 3. GARNISHMENT (§ 24*)-TRUSTEE PROCESS PERSONS SUBJECT TO-CORPORATE OFFICERS. The treasurer of a corporation cannot be charged under trustee process for its property in his official custody. [Ed. Note. For other cases, see Garnishment, Cent. Dig. § 31; Dec. Dig. § 24.*] Report from Supreme Judicial Court, Androscoggin County. Actions by Pettengill, Andrews & Co. and by James H. Kerr against the Rangeley Light & Power Company, with trustee process against Charles C. Benson. The principal defendant defaulted. On report. Trustee discharged. Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ. Geo. C. & H. L. Webber, for Pettengill, Andrews & Co. Bisbee & Parker and Harrie L. Webber, for James H. Kerr. McGillicuddy & Morey and White & Carter, for trustee. WHITEHOUSE, C. J. The former of the above-named cases is an action to recover for the price of material furnished to the defendant corporation. The defendant has been defaulted for $865.82 and interest. The latter is an action brought to recover the contract price for extra labor and materials, and for excavating a pipe trench and building a dam for the defendant's power station. The defendant has been defaulted for $6,926.61. The cases are reported to the law court upon the same evidence to determine the liability of the trustee upon the disclosure of the trustee, the allegations of the respective plaintiffs, and the evidence. The alleged trustee, Charles C. Benson, filed a disclosure in each case, alleging that at the time of the service of the writ upon him in that case he had not in his hands and possession any goods, effects, or credits of the defendant corporation, and thereupon submitted himself to examination on oath. that the sum of $27,000 did not prove sufficient in amount to install and finish the defendant's plant then in process of construction; and "that the said Benson, the alleged trustee, has not carried out the agreements or any of them hereinbefore recited." The Rangeley Light & Power Company, the defendant corporation, was organized under the general law in 1908 for the purpose of furnishing electricity for light and power in the town of Rangeley and its immediate vicinity. This organization was confirmed and additional powers conferred upon the company by chapter 330 of the Special Laws of 1909. In the summer of that year, Dwight D. Elliott of Rangeley, who was an electrician, having some knowledge of the establishment of electrical plants, became president and general manager of the company, and arranged with Charles C. Benson, a banker and broker in Lewiston, the alleged trustee in these cases, to accept the position of treasurer. Extensive improvements were in contemplation at that time, and it was understood that the treasurer would take a prominent part in the management of the financial affairs of the new enterprise. It is not in controversy that Benson had some negotiations with the president of the company with reference to the methods of providing the funds required to make the improvements that had been projected. It appears to have been estimated by the president that this expense would not exceed $22,000; but, as the bills then outstanding amounted to $5,000, it was deemed necessary to make provision for a total indebtedness of $27,000. It was accordingly arranged to issue bonds to the extent of $35,000 secured by a trust mortgage, in order to procure the required sum of $27,000, if practicable, from the sale of bonds of the par value of $30,000, and to hold the remaining $5,000 of the bonds in the treasury for further improvements in the future. In pursuance of this plan the bonds were duly prepared, the mortgage executed and recorded, and the treasurer authorized by vote of the directors to dispose of the bonds. It does not appear that the price at which they were to be sold was For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes fixed by this vote, but it seems to have been, debtedness of the corporation, he did underunderstood by all the parties that the price take to aid in providing that amount of capagreed upon by the directors was 90 cents ital and expected to take bonds at 90 cents on the dollar; and the plaintiffs in these on the dollar for whatever money he furactions contend, in accordance with the al-nished, but he emphatically denies that he legations filed by them, that these negotia- ever made any contract with the defendant tions between President Elliott and treasurer Benson, who was doing business in Lewiston as a banker and broker under the name of Chas. C. Benson & Co., resulted in an agreement on the part of Benson that he would purchase $30,000 of the bonds at 90, that pursuant to that agreement the bonds were delivered to him, that he paid for $11,000 of them, and that he was indebted to the company for the balance of the bonds. 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 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. 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; * * that he 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 |