question, and will not be until the instrument is again offered for probate, or until application is made for the appointment of an administrator upon the estate of Mrs. Jordan as having died intestate. That part of the decree should be eliminated. The case is remitted to the supreme court of probate sitting for Hancock county to make and enter decrees in accordance with this opinion. So ordered. if she would join in an effort to get more, tions, though asked for in the petition. than the will gave them, and she expressed There is no occasion yet to decide either her willingness to do so, but she did not become a party to the petition, and it does not appear that she received anything from it, or knew its contents or what was done with it. It is evident that these facts do not show her then to have knowledge of the facts now alleged, or to be negligent in not knowing them. She filed her first petition for annulment in June, 1907, when she first had notice of the matters alleged, and her second, the present, petition in December, 1907, as soon as her first was disposed of. Andrew J. Jordan had died the January before, and there is no evidence that her delay from June to December, 1907, made any change in the condition of the other party. Under this head of laches the appellant also urges that by the death in January, 1907, of Andrew J. Jordan, the executor and residuary legatee of Mrs. Jordan, it has be come impracticable to determine what of the property left by him came to him from the estate of Mrs. Jordan; she having died nine years before. That matter must be adjusted or tried out in proceedings between the administrator or Mrs. Jordan, if one be appointed, and the appellant as executor of the will of Andrew. It does not appear but that the estate of Andrew is intact; no payments out of it having been shown. No loss will fall upon the appellant, but only on the estate of Andrew, who did the wrong. Under this same head it is further urged that, by the death of Andrew J. Jordan, the appellant, his executor, is deprived of evidence that might have supported the decree of February, 1898, and shown cause against its annulment, and that by waiting till after the death of Andrew the petitioner has placed his estate and his executor at such a disadvantage that the court should not now grant her petition. Granting, arguendo only, that such a disadvantage would be cause for denying the petition, we do not think it is shown to exist. It does not appear that Andrew alone may have known of material facts. So far as appears, the witnesses to the instrument and the then judge of probate are all living and within our jurisdiction and competent to testify, and all material facts can be shown by them. No other reasons of appeal are argued, and it is not claimed that those not argued show cause against the petition. It follows that the decree appealed from should be affirmed, with costs of appeal, so far as it annuls the prior decree of February, 1898, probating as the will of Mrs. Jordan the instrument therein described. The probate Mass. 204,ever, went further, and undertook 1; Gilman at the instrument was not the It is well serdan, and that she died intesthe power and court had no occasion to tion, notice, and he on either of those quesa prior decree, even (105 Me. 62) BRIGHT et al. v. CHAPMAN. (Supreme Judicial Court of Maine. Dec. 30, 1908.) 1. HUSBAND AND WIFE (8 29*) - MARRIAGE other things, provides that "a husband and SETTLEMENTS. Marriage settlements may be made which of the marriage relation other than "rights" in contain agreements as to matters growing out the estate of one or the other. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 158, 168; Dec. Dig. § 29.*] 3. HUSBAND AND WIFE (§ 35*) MARRIAGE SETTLEMENTS-ENFORCEMENT. the marriage settlement provided for by the statAfter dissolution of the marriage by death, ute is cognizable in the courts of common law. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 209-217; Dec. Dig. § 35.*] 4. HUSBAND AND WIFE (§ 35*) — MARRIAGE SETTLEMENTS-ENFORCEMENT EQUITY. and especially is this true in the case of a widEquity will enforce antenuptial settlements, ow's claim for an allowance, inasmuch as an antenuptial agreement is no defense in a court of probate to her petition for an allowance. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 209-217; Dec. Dig. § 35.*] 5. EXECUTORS AND ADMINISTRATORS (§ 185*)— ALLOWANCE TO WIFE-MARRIAGE SETTLE MENTS. Where, in a marriage settlement, it was provided that the intended husband should assign to the intended wife a certain paid-up policy of life insurance held by him for the sole use and benefit of the intended wife, in case she survived him, "to be paid in full satisfaction of any and all claims by descent or otherwidow in her intended husband's estate in event wise" which the intended wife might have as of his decease, and which said policy was assigned to the intended wife, and the intended wife covenanted and agreed that the marriage settlement should be "a bar both in law and in equity to any claim she may make to any part of the real or personal estate" of the intended duties. husband, and after the execution of the settle- | fied and entered upon the discharge of their ment the parties thereto were joined in marriage, and the wife, having survived her husband, filed a petition as his widow for an allowance out of his personal estate, it was held that the expressions. "any and all claims by descent or otherwise," and "any claim she may make to any part of the real or personal estate of the husband," were amply broad to cover the claim of the widow for an allowance, and that she should be enjoined from prosecuting her claim for an allowance. The will makes no mention of the widow, save to direct the trustees of the testator, to whom he gives, for the benefit of his children, all his other property, to do all things needful to secure to his wife, surviving him, the sum provided for her in the marriage settlement. The inventory of his estate shows personal [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 695; Dec. Dig. property to the amount of $16,924.90 and § 185.*] (Official.) real estate to the amount of $22,500, or a total of $39,424.90. The debts of deceased with expenses and charges will not exceed Report from Supreme Judicial Court, Pe- $2,000. nobscot County, in Equity. Bill for injunction by Joseph M. Bright and others, executors of the will of John E. Chapman, deceased, against Lucy Chapman. Case reported to the law court. Injunction granted. Bill in equity brought by the executors of the last will and testament of John E. Chapman, late of Bangor, deceased testate, to restrain the defendant, the widow of said deceased, from prosecuting in the probate court her claim for an allowance out of the personal estate of her deceased husband. The plaintiffs contended that the defendant was barred from prosecuting her claim for an allowance by reason of a marriage settlement entered into by her and her said husband previous to their marriage. The defendant's answer to the bill and the plaintiffs' replication were duly filed. After a hearing thereon duly had, it was agreed to report the case to the law court "upon bill and answer and replication and admissions of record and so much of the documentary evidence as is legally admissible, for the determination thereof." and Argued before EMERY, C. J., and SAVAGE, PEABODY, CORNISH, KING, BIRD, JJ. The marriage settlement recites that, in consideration of their intended marriage, it is agreed by the parties that the rights of each in the estate of the other during marriage and after its dissolution by death shall be determined by the marriage settlement, and that the "settlement shall bar each of all rights in the estate not so secured, and for the further purpose of making a pecuniary provision for the benefit of said intended wife, instead of her right and interest by descent in said intended husband's estate, consented to by her by becoming a party to this agreement, in order to bar her husband's lands," and it also recites his ownright and interest by descent in her intended ership of a paid-up policy of life insurance, he has agreed to assign to her for her sole then of the paid-up value of $4,419, which use and benefit, in case she survives him, "to be paid in full satisfaction of any and said party of the second part (the intended all claim by descent, or otherwise, which wife) may have as widow, in her intended husband's estate, in the event of his de cease." Following the recitals are the mutual agreements of the parties by the first of which the policy of insurance is assigned to the intended wife, provided that all divi Wilford G. Chapman, for plaintiffs. Mat- dends and accumulations during his life shall thew Laughlin, for defendant. BIRD, J. On the 20th day of March, 1905, John E. Chapman, then about 70 years of age, and Lucy Thomas entered into a marriage settlement, which was executed in the presence of two witnesses, as provided in Rev. St. 1903, c. 63, § 6. Subsequently on the same day they were married and thereafter lived as husband and wife at Bangor, Me., the residence of the husband, until his death on the 18th day of March, 1907. He left, beside the widow, four adult children. It does not appear that the widow then had living children by a former marriage. The will of the husband was duly admitted to probate in the month of April following his decease, and letters testamentary issued to complainants, all of whom quali be hers, that the proceeds of the policy shall be paid to the wife only after the marriage and after the death of the husband, and that, if the wife does not survive the husband after the marriage, the assignment shall be void and the policy shall revert to him. The settlement concludes as follows: "Second. If said party of the second part shall not survive said party of the first part, after the solemnization of said intended marriage, all of her estate shall descend according to the laws of Maine for the descent of estates of persons dying intestate, unless she shall change the same by will, in which case said party of the first part relinquishes all rights in the estate of his said intended wife, except such as may be provided for him in said will. "Third. Said party of the second part here . by consents to accept said pecuniary pro- | either party to the marriage settlement may vision here made for her for the considera- have in the estate of the other (see Wenttion aforesaid and hereby covenants and agrees that this instrument shall be a bar, both in law and in equity, to any claim she may make to any part of the real or personal estate of the said party of the first part, except as herein provided." On the 27th day of April, 1907, the widow received from the insurance company which issued the policy of insurance its paid-up value, amounting with accumulations to the sum of $4,433, which, however, although retained by her, she denies was paid to her in satisfaction of any claim for an allowance out of the personal estate of her de ceased husband. On the 28th day of May, 1907, the widow filed in the probate court a waiver of any specific provision made for her in the will, in so far as any was made, in which she claims an allowance out of the personal estate of the deceased, refuses to repudiate the marriage settlement, declares her willingness to abide by it in so far as her rights in said estate are precluded by it, and, while admitting herself precluded by it from any right or interest in the property and estate of her deceased husband, "claims that she is entitled to claim an allowance out of the personal estate of the deceased." On the 30th day of July, 1907, the widow filed in the probate court her petition for an allowance, and the complainants thereupon filed their bill in equity asking that defendant be enjoined from prosecuting or maintaining her petition for an allowance before the probate court. worth v. Wentworth, 69 Me. 247, 253), and it does not follow that the section quoted covers the whole field of marriage settlements. On the contrary, it is clear that marriage settlements may be made which contain agreements as to matters growing out of the marriage relation other than "rights" in the estate of one or the other. Wentworth v. Wentworth, 69 Me. 253; Sullings v. Richmond, 5 Allen (Mass.) 187, 192, 81 Am. Dec. 742; Jenkins v. Holt, 109 Mass. 261, 262. Equity will enforce such antenuptial settlements (Sullings v. Sullings, 9 Allen [Mass.] 234, 236; Tarbell v. Tarbell, 10 Allen [Mass.] 278, 280; Butman v. Porter, 100 Mass. 337, 339), and especially is this true in the case of a widow's claim for an allowance, inasmuch as an antenuptial agreement is no defense in a court of probate to her petition for an allowance (Wentworth v. Wentworth, 69 Me. 247, 255). It is also urged by defendant that the marriage settlement is not broad enough to include a claim of the widow for an allowance. To this we do not assent. The wid ow's demand for an allowance, or right to demand an allowance, is commonly, if not invariably, known in our courts as the "widow's claim for an allowance." Gowen's Appeal, 32 Me. 516, 517; Kersey v. Bailey, 52 Me. 198, 199; Tarbox v. Fisher, 50 Me. 236; Smith v. Howard, 86 Me. 203, 207, 29 Atl. 1008, 41 Am. St. Rep. 537; Paine v. Forsaith, 84 Me. 71, 24 Atl. 590; Brown v. Hodgdon, 31 Me. 65, 69. The language of the indenture "to be paid in full satisfaction of any and all claims by descent or otherwise," which the wife may have in her intended husband's estate, and the words of the third paragraph, “a bar both in law and in equity, to any claim she may make to any part of the real or personal estate" of the husband, are amply broad to cover a claim for a widow's allowance. It is the contention of defendant that the whole subject of marriage settlements is covered by Rev. St. c. 63, § 6, that this provision does not authorize a widow to bar herself from an allowance, that it supersedes any common-law rules in regard to the same, and that this court in the exercise of its equity powers cannot restrain the widow. The section invoked provides that husband and wife may determine what rights each shall have in the other's estate during marriage, and after its dissolution by death, and may bar each other of all rights in their respective estates not so secured to them. Even under this section recourse must be had to equity for the enforcement of the marriage settlement in so far as it concerns rights of one party in the estate of the other during marriage. Went-pudiate the settlement, and is willing to worth v. Wentworth, 69 Me. 247, 254; Miller v. Goodwin, 8 Gray (Mass.) 542, 543, 544. After dissolution of the marriage by death, the settlement provided for by our statute is cognizable in the courts of common law. Wentworth v. Wentworth, 69 Me. 247; Sullings v. Richmond, 5 Allen (Mass.) 187, 192, 81 Am. Dec. 742. But section 6, c. Defendant claims that the settlement is inequitable by reason of the inadequacy of It does not the provision made for her. appear from the record that it was not entered into understandingly, nor that it was procured by fraud or deceit. Moreover, as we have seen, defendant retains the avails of the policy of insurance, declines to re abide by it in so far as her rights in the husband's estate are concerned, except that she claims an allowance and that the settlement is no bar thereto. A question of construction only is presented which has already been decided adversely to defendant. See Paine v. Hollister, 139 Mass. 144, 145, 29 N. E. 541. (75 N. H. 214) HEALEY v. WHEELER et al. (Supreme Court of New Hampshire. Rocking ham. April 6, 1909.) 1. STATUTES ( 230*) - AMENDMENTS-PRE SUMPTIONS. Where a statute purports to amend a designated clause of another statute, there is a presumption that that is the only clause to which the Legislature intended it should apply. [Ed. Note.-For other cases, see Statutes, Dec. Dig. § 230.*] 2. WILLS (8 801*)-ELECTION. Pub. St. 1901, c. 195, § 10, provided that a widow by waiving the provisions of her deceased husband's will should be entitled, in addition to her dower and homestead rights, as her distributive share, to the following portion of his personal estate remaining after the payment of debts, etc.: (1) One-third part thereof, if he leaves issue surviving him; (2) one-half thereof, if he leaves no issue surviving him. Laws 1901, p. 613, c. 113, § 1, amends said section by adding after the word "him" in clause 2 the words: "Provided, however, that if such remaining portion does not exceed in value the sum of $1,500, and if he dies intestate, then she shall be entitled to the whole thereof; and in case the value thereof exceeds the sum of $1,500, but does not exceed the sum of $3,000, she shall be entitled to the sum of $1,500." Held, that the amendment applies to clause 2 only. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 2080; Dec. Dig. § 801.*] clause only. Section 1, c. 113, p. 613, Laws 1901, reads as follows: "Section 10 of chapter 195 of the Public Statutes is hereby amended by adding after the word 'him' in clause numbered 2 of said section the following words: Provided, however, that if such remaining portion does not exceed in value the sum of fifteen hundred dollars, and if he dies intestate, then she shall be entitled to the whole thereof; and in case the value thereof exceeds the sum of fifteen hundred dollars, but does not exceed the sum of three thousand dollars, she shall be entitled to the sum of fifteen hundred dollars. So that said section when amended shall read as follows: Sec. 10. The widow of a person deceased, testate or intestate, by waiving the provisions of his will in her favor, if any, shall be entitled, in addition to her dower and homestead rights, as her distributive share, to the following portion of his personal estate remaining after the payment of debts and expenses of administration: (1) One-third part thereof, if he leaves issue surviving him. (2) One-half thereof, if he leaves no issue surviving him. Provided, however, that if such remaining portion does not exceed in value the sum of fifteen hundred dollars, and if he dies in Transferred from Superior Court, Rock- testate, then she shall be entitled to the ingham County; Pike, Judge. In the matter of the estate of one Wheeler, deceased. From a decree of the probate court distributing the personal estate to Herbert L. Wheeler and other children of the deceased, and to his widow or her administrator, James M. Healey, administrator of the widow, appeals. Transferred from superior court. Decree of probate court affirmed, and case discharged. The defendants' father died in 1904, intestate, leaving personal estate, a widow, and four children. After payment of debts and expenses of administration, the personal estate remaining in the hands of the ad ministrator was less than $150, which the probate ordered to be divided as follows: One-third part thereof to the widow or to her administrator, and the remaining twotbirds in equal shares to the four children. From this decree the widow's administrator appealed. John T. Bartlett, for plaintiff. L. Ashton Thorpe and Harry W. Spaulding, for defendants. whole thereof; and in case the value thereof exceeds the sum of fifteen hundred dollars, but does not exceed the sum of three thousand dollars, she shall be entitled to the sum of fifteen hundred dollars." As section 1, c. 113, p. 613, Laws 1901, purports to amend clause 2, there is a presumption that that is the only clause to which the Legislature intended it should apply. There is nothing in the act itself or the subject-matter to which it relates that in any way tends to rebut this presumption, and it seems clear from the amendment itself that it was not intended to apply to clause 1. If the amendatory act does apply to the latter clause, and its words are given their ordinary meaning, a widow whose than she would if he left $3,000.01; for, if husband leaves just $3,000 gets $500 more he leaves just $3,000, she gets $1,500, but if he leaves more she gets one-third of his estate. The absurdity of this result is evidence that such a construction was not intended. Kendall v. Green, 67 N. H. 557, 563, 42 Atl. 178. It is held, therefore, that section 1, c. 113, Laws 1901, applies to clause 2 only. YOUNG, J. The only question for this Consequently the order in this case should court is whether section 1, c. 113, p. 613, be: Appeal dismissed. Decree of the proLaws 1901, applies to clauses 1 and 2, § bate court affirmed. 10, c. 195, Pub. St. 1901, or to the latter Case discharged. All concurred. •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 72 A.-48 (75 N. H. 613) In re OPINION OF THE JUSTICES. (Supreme Court of New Hampshire. April 6, 1909.) 1. COURTS (§ 208*) - SUPREME COURT-ANSWERING QUESTIONS OF GOVERNOR AND COUNCIL. Where the justices of the Supreme Court are bound, by Const. pt. 2, art. 73 [74], to submit opinions requested by the Governor and Council on important questions of law and on solemn occasions, it should appear that the answer to any question presented should assist them in performing their executive duties. [Ed. Note. For other cases, see Courts, Cent. Dig. 88 492, 493; Dec. Dig. § 208;* Constitutional Law, Cent. Dig. § 128.] 2. COURTS (§ 208*) - SUPREME COURT-ANSWERING QUESTIONS OF GOVERNOR AND COUNCIL REMOVAL OF RAILROAD COMMIS SIONER. The fact that the alleged grounds of ineligibility of a Railroad Commissioner, on which is based a petition to the Governor and Council for his removal, have been removed, is not sufficient to warrant the Supreme Court in refusing to answer questions, propounded to them by the Governor and Council, as to his eligibility when appointed and when the questions were asked, since the question whether he is not a de jure officer might be material to the decision whether it would be for the public good that he should be removed. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 492, 493; Dec. Dig. § 208.*] 3. QUO WARRANTO (§ 10*)-DE FACTO OFFICER -VACANCY AND WANT OF TITLE TO OFFICE -PROCEEDINGS TO DETERMINE. ER 7. RAILROADS (§ 9*)-RAILWAY COMMISSION- One is not "interested," in the statutory sense, unless his interest prevents him from being "indifferent." [Ed. Note. For other cases, see Railroads, Dec. Dig. § 9.* For other definitions, see Words and Phrases, vol. 4, pp. 3692-3696; vol. 8, p. 7691.] 8. COURTS (§ 208*)-SUPREME COURT-ADVIS- of an officer, it is not the duty or province of [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 492, 493; Dec. Dig. § 208.*] 9. OFFICERS (8 18*)-OCCUPATION OF OFFICE— VIOLATION OF STATUTE PRESCRIBING QUALIFICATIONS. Unless a person is as a matter of law in- Court to questions propounded by the Gov- Answers of the Justices of the Supreme When an office is occupied by a de facto officer, it cannot be determined vacant, or that A complaint having been filed with the he has no title, except on a proceeding in the nature of quo warranto to test his official title. Governor and the Honorable Council on Feb[Ed. Note. For other cases, see Quo War-ruary 12, 1909, representing that Henr; M. ranto, Cent. Dig. §§ 10-12; Dec. Dig. § 10.*] 4. CONSTITUTIONAL LAW (§ 70*) JUDICIAL FUNCTION FINDING LEGISLATIVE INTEN TION. Finding the fact of legislative intention in legislative act is a judicial function. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 129-132; Dec. Dig. 70.*] 5. STATUTES (§ 189*)-CONSTRUCTION IN GEN ERAL. In construing a statute whose meaning is doubtful or to be ascertained by inference, the absurdity or apparent inequity resulting from a literal or merely verbal construction is ground to support a broader construction not attended with such results. Putney, one of the Railroad Commissioners of this state, is disqualified by reason of interest in railroads doing business in this state, and it having been determined upon said complaint that the People's Savings Bank of Manchester, N. H., a guaranty sav§ings bank incorporated under and by virtue of the laws of New Hampshire, at the date of filing said complaint and on the 20th day of February, 1909, was the owner of 80 shares of the capital stock of the Boston & Maine Railroad, 100 shares of the capital stock of the Concord & Montreal Railroad, and bonds of the said Concord & Montreal Railroad of the value of $10,000; that both of said railroads are doing business in this state; that at the date of said Henry M. Putney's appointment as Railroad Commissioner, to wit, on the 16th day of October, 1907, the said People's Savings Bank was the owner of the greater part of said Boston & Maine Railroad stock, and was also the owner of said Concord & Montreal Railroad bonds; that the said Henry M. Putney at the date of his said appointment was, and ever since has been, the treasurer of said bank and a stockholder therein; that after said 20th day of February, 1909, and after notice to said Henry M. Putney of said complaint, the said bank disposed of all said railroad securities [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 268; Dec. Dig. § 189.*] 6. RAILROADS (§ 9*)-RAILROAD COMMISSIONER-ELIGIBILITY TO OFFICE - QUESTION OF LAW OR FACT. Under Pub. St. 1901, c. 155, § 1, providing that "no person who owns railroad stock, or who is employed by a railroad corporation, or who is otherwise interested in one, shall be eligible to the office" of Railroad Commissioner, one otherwise qualified is not conclusively presumed to be disqualified by the fact that he is a special depositor in a guaranty savings bank owning stock in a railroad doing business in the state, and the question whether he is "otherwise interested" must first be determined as a question of fact. [Ed. Note. For other cases, see Railroads, Dec. Dig. § 9.*] |