Snow v. Snow. JESSE C. SNow, administrator, vs. NATHANIEL A. SNOW. Under the Gen Sts. c. 91, § 1, cl. 5, if an intestate leaves no issue or parents, and no brother or sister, his nephews and nieces take his estate per capita and not per stirpes. APPEAL by Nathaniel A. Snow from a decree of the Probate Court ordering the distribution of the estate of Nathaniel Atwood. Hearing before Wells, J., who affirmed the decree of the Probate Court. Nathaniel A. Snow appealed, and the judge reported the case for the consideration of the full court. Nathaniel Atwood died intestate in 1871, and Jesse C. Snow was appointed administrator of his estate. The intestate left no issue, no parents, and no brother or sister. His next of kin were the appellant, who was the son of his deceased sister, Abigail A. Snow, and the four children of Frances A. Crosby, another deceased sister. The administrator rendered his final account, showing a balance for distribution, and the Probate Court ordered the balance to be equally divided among the five nephews and nieces of the intestate. The appellant contended that he was entitled to half the balance. G. A. King, for the appellant. H. P. Harriman, for the appellee. MORTON, J. Our statute of distributions provides that when a person dies intestate, leaving “no issue, and no father, mother, brother, nor sister," his estate shall descend "to his next of kin in equal degree; except that when there are two or more collatteral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor who is more remote." Gen. Sts. c. 91, § 1, cl. 5. We have no doubt that this provision was intended to apply to the case of a person leaving as his next of kin nephews or nieces, the children of different brothers or sisters, and that such nephews or nieces take in equal shares. Such is the natural and obvions construction of the statute. The policy of our law is that when heirs are in equal degree of consanguinity to the intestate, Raymond v. Eldridge. they inherit per capita, or in equal shares, but when they are in different degrees, those in the more remote degree inherit per stirpes, or such portion as their immediate ancestor would inherit if living. Knapp v. Windsor, 6 Cush. 156, 162. Chief Justice Shaw, in the case cited, says that "the rule of representation applies only from necessity, or where there are lineal heirs in different degrees, as children and the children of a deceased child, or brothers and sisters and the children of a deceased brother or sister." The appellant argues that it is the intention of our statute that distribution shall be made under the fifth clause only when there is a failure of all persons previously named in the statute, including children of deceased brothers and sisters. We cannot adopt this construction. It seems to us against the natural meaning of the language, and against the general policy which pervades our system that the next of kin in equal degree shall inherit in equal shares. We are therefore of opinion that the decree appealed from was correct. Decree affirmed. JOSEPH RAYMOND vs. MERCY G. ELDRIDGE, executrix. Under a declaration on an account annexed, the items of which are for board furnished to the defendant's minor children, the plaintiff may show that the defendant expelled the children from his house under such circumstances as to render himself liable for board furnished them. for CONTRACT against the executrix of the will of Alfred Eldridge, money due from her testator on an account annexed, the items of which were for board furnished to the testator's minor children. Trial before Brigham, C. J., who, after a verdict for the plaintiff, allowed a bill of exceptions tendered by the defendant. The case is stated in the opinion. G. A. King, for the defendant. G. Marston, for the plaintiff. CHAPMAN, C. J. This action is brought to recover compensation for the board of the testator's two minor children in his life. Raymond v. Eldridge. time, on the ground that he had, while of sufficient ability to support them, expelled them from his house under such circumstances as to render himself liable for the board furnished to them by the plaintiff. The declaration contains a general count apon an account annexed; and the defendant contends that the action cannot be maintained without a special count. Under the system of pleading that prevailed at common law, a general count could be maintained for board and lodging. Saund. Pl. & Ev. 319. In this Commonwealth it was the practice under a former system to declare generally, and a general count for board and lodging is sanctioned by the Gen. Sts. . 129, § 87. It is not necessary to declare specially for the board of a wife or child, any more than for the board of the defendant himself, and a count on an account annexed for the board of the defendant himself and his wife and children has been usual, and is good. The ground of the claim is a contract express or implied. This is so, whether the defendant directs them to go and obtain the board, and thus authorizes them by express words to obtain it on his credit, or leaves them so unprovided for that they have an authority implied by law to obtain it on his credit. The evidence of the authority is varied, but the pleading need not be. Exceptions overruled. CRIMINAL CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, JANUARY TERM 1873, AT BOSTON. PRESENT: HON. REUBEN A. CHAPMAN, CHIEF JUSTICE. HON. SETH AMES, HON. MARCUS MORTON, } JUSTICES. COMMONWEALTH vs. JOHN GREENE. On an indictment against the owner of goods for larceny of them from an attaching officer, evidence is admissible that the defendant intended to leave and did leave with the officer goods enough to satisfy the claim of the attaching creditor. MORTON, J. The indictment charges the larceny of certain goods alleged to be the property of Ephraim W. Farr. It appeared at the trial that the defendant was the general owner of the goods; that they had been attached by Farr, who is a constable of the city of Boston, upon a writ duly sued out of the Superior Court by a creditor of the defendant; and that while they were under attachment the defendant took and carried them away. There is no doubt that an attaching officer has a special property in the goods attached, so that he may maintain trespass or trever if they are taken from him; and so that, if they are stolen from him, the property in them may properly be alleged to be in him. Gen. Sts. c. 172, § 12. Bond v. Padelford, 13 Mass 394. Brownell v. Manchester, 1 Pick. 232. Commonwealth v. Greene. And if the general owner, unlawfully and without the consent of the officer, takes and carries away the goods, the question whether he can be convicted of larceny depends upon the intent with which he does the act. If his intent is to charge the officer with the value of the goods taken, the taking is larceny. Mr. East says: "If A. bail goods to B., and afterwards anime furandi steal them from him with design probably to charge him with the value, or if A. send his servant with money, and afterwards waylay and rob him, with intent to charge the hundred, in either case the felony is complete." 2 East P. C. 654. 1 Hale P. C. 513. 4 Bl. Com. 231. Palmer v. People, 10 Wend. 165. An attaching creditor acquires by the attachment a qualified right to so much of the property attached as is necessary to satisfy his debt; and if the general owner takes and carries away the whole or a part of the property, with the intent to defraud him of this security, we think it would be larceny. But if his design is merely to prevent other creditors from attaching the goods, and he has no intent to defraud the officer or the attaching creditor, the act, though unlawful, would not be larceny. The case at bar seems to have been tried upon this view of the law. The only question was as to the intent with which the defendant took the goods. He was a witness in his own behalf, and was permitted to testify that he took them for the purpose of protecting himself against other creditors, and not for the purpose of defrauding the officer. But he offered also to testify that "his intention was to leave, and that he did leave, five or six hundred dollars' worth of the goods in the store, enough to satisfy the suit already commenced," which testimony was excluded by the court. The defendant in a criminal case may be a witness and may testify directly to his motives and intent; but he also has the right to prove, by his own or other testimony, any competent facts which tend to show his intent. The fact, if proved, that the defendant purposely left in the store enough of the goods to satisfy the debt of the attaching creditor, would tend to explain and qualify the transaction of which it was a part, and to show that his purpose was not to defraud the officer or creditor. Commonwealth v. Rowe, 105 Mass |