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not, embrace the "public highways" contem- subject should be resolved in favor of its plated by the act of 1904. The occasion for continuance, rather than against it, - espe such provision, the discussion of the sub- cially when it concerns a subject in which ject in the convention that first adopted it, the state has so much interest as public the context, the evident meaning of the roads. Rules of interpretation adopted by term in other parts of the Constitutions, the courts require them to sustain legislathe prior, contemporaneous, and subsequent tion when it can properly be done, and construction of the term, all suggest this as courts should be inclined to continue the the reasonable and proper meaning to be powers formerly vested in the general asgiven to it by the courts. Then, when we sembly, unless there be manifested a clear, add to those considerations the additional unquestionable intent to take them from it. one that by the same Constitution which

Being of the opinion that Acts 1904, chap. first adopted this provision it was provided 225, p. 388, is not in conflict with § 34 of that the county con missioners "shall exer. article 3 of the Constitution, as the term cise such powers and duties only as the works of internal improvements," as there legislature may from time to time pre in used, was not intended to apply to such scribe,” and by the present one their "pow- public highways of the state as are coners and duties shall be such as now, or may structed by the counties and contemplated be hereafter prescribed by law,”. we are by that act, the decree of the lower court so strengthened in our conviction. For, as holding will be affirmed. was well said in appellees' brief, “the estab- Decree affirmed; costs to be paid by the lishment, construction, and maintenance oi appellant. public roads is a primary function of gov. ernment,” and when we remember that a county is but a division of the state, "created and organized for public political pur- Mary E. POLK et al., A ppts., poses connected with the administration of the state government,” and that the leg

Helen A. LINTHICUM islature has, under the power given it by the Constitution, imposed the duty on the

(......Md.......) county commissioners to raise money with

1. Mere unfriendliness of a cestui que which the public roads can be maintained,

trust toward a trustee is not suficient it would seem remarkable, if not unjust to ground for the removal of the latter. the counties, if the legislature was intention. 2. The removal of the widow as trustee ally shorn of the power to give such reason- of a fund provided for the benefit of able aid to the counties towards the con- tentator's daughter is required, where she struction or improvement of public roads as

elected to take her dower rights in opposi

tion to the will, thereby depleting the trust this act contemplates. The general assem.

estate, and destroying a very important part bly exercises great power over the counties, of the scheme of the testator, remarried with and in no respect more than concerning in a short time, became estranded from the their public roads and bridges, as illustrated cextui qur trust and her cotrustees so that no in the cases between Queen Anne's County

intercourse could subsist between them, and

kept the estate in needless litigation, and Talbot County in 50 Md. 245, and 99 Md. 13, 57 Atl. 1, the Baltimore County v. Wilson

(March 23, 1905.) Case, 97 Md. 207, 54 Atl. 71, 56 Atl. 596, and by the act of 1878, chap. 158, p. 256, A PPE AL by plaintiffs from a judgment of by which it required Allegany and Garrett

the Circuit Court for Baltimore City re

Reversed. counties to take charge of and keep in re

fusing to remove a trustee. pair the national road. Yet, if the appel

The facts are stated in the opinion. lant's contention is right, it cannot aid

Messrs. James P. Gorter and H. Asthese “political divisions of the state, or.

thur Stump, for appellants: ganized with a view to the general policy of

The behavior of Mrs. Linthicum is very the state,” as was said of counties in Daly much below the standard that the courts of v. Morgan, “although they are constantly

this state exact in the performanee of the subject to legislative control,” however responsible and delicate duties pertaining desirable for the state at large it may be to

to the office of trustee. do so. It cannot be doubted that, in the

Dickerson v. Smith, 17 S. C. 289. absence of some constitutional prohibition,

There ought to be peaceful intercourse bethe general assembly has full power to fur-tween the beneficiary and those intrusted nish such aid; and when we are called upon

with the management of the estate. Where to determine whether a recognized and un

NOTE.-On the question of dissentions bequestioned power has been taken from a

tween beneficiary and trustee as ground for the body such as the general assembly, in which latter's removal, see also, in this series, May v. it was formerly vested, any doubt on the / May, 41 L. R. A. 767.

strained relations exist between trustee and Page, J., . delivered the opinion of the cestui que trust, the court has exercised its court: power, and removed the trustee.

This is an appeal from the order of the Wilson v. Wilson, 145 Mass. 492, 1 Am. lower court dismissing the petition of the St. Rep. 477, 14 N. E. 521; McPherson v. appellants for the removal of the appellee Cox, 96 U. S. 419, 24 L. ed. 751; Scott v. from the trust created by the last will and Rand, 118 Mass. 215; May v. May, 167 U. | testament of the late Gabriel D. Clark. The S. 310, 42 L. ed. 179, 17 Sup. Ct. Rep. 824. decedent left, surviving him, a widow (the

Strained relationship between the trus- appellee in this case) and two children by a tees is an additional ground for removal. former wife (a son, Gabriel D. Clark, Jr.,

May v. Hay, 167 U. S. 310, 42 L. ed. 179, and a daughter, Mary, who, with her hus17 Sup. Ct. Rep. 824; Uvedale v. Ettrick, 2 band, Lucius C. Polk, are the appellants). Ch. Cas. 130; Jones v. Stockett, 2 Bland, By his last will, made in the year 1892, he Ch. 434; Quackenboss v. Southwick, 41 N. distributed a large estate, except as to a Y. 117; Re Bernstein, 3 Redf. 26; Druid small portion donated to certain charitable Park Heights Co. v. Oettinger, 53 Md. 62. purposes, among the several members of his

When Mrs. Linthicum renounced the will, family. For his wife he made an ample proshe ceased to be trustee.

vision. He gave her his residence and conMeyer's Estate, 8 Pa. Co. Ct. 374.

tents, and one half of his personal estate, Messrs. T. R. Clendinen, Enoch Har- | amounting to more than a million and a lan, and J. Charles Linthicum & half of dollars, for her life or widowhood, Brother, for appellee:

and one third of the residue of his realty for Equity will not exercise its power to take life. All the residue of his estate, including charge of and administer a trust when it that portion that might remain after the is being properly administered by the trus termination of the estate given to the wife tee.

for life or for widowhood, he divided among Perry, Tr. 8275; Schouler, Exrs. & his son and daughter. The son took his Admrs. 2d ed. $ 33, pp. 45, 46; Massey v. share absolutely, but that of his daughter Stout, 4 Del. Ch. 274; Thompson v. Thomp- was given to his widow, his son, and the son, 2 B. Mon. 175.

Mercantile Trust Company of Baltimore, in A trustee appointed by the grantor of the trust to hold and manage the same, and pay benefits should not be displaced unless he over the income thereof to Mrs. Polk, “into has violated his trust,-especially when her hands and not into another,” for her asked for by part only of the beneficiaries. life, and from her death to his grandson, if

Berry v. Williamson, 11 B. Mon. 271; he be then living, during his natural life, Re Nevoman, 124 Cal. 688, 45 L. R. A. 782, and then for the bencfit of his child or chil57 Pac. 686; Kidd v. Bates, 120 Ala. 79, dren, until the youngest child shall have 41 L. R. A. 155, 74 Am. St. Rep. 17, 23 So. reached twenty-one years of age, when the 735.

trust is to close, and the property shall vest

In the An executor appointed by will cannot be absolutely in the said children. rejected by the court, except where the law

event of his grandson dying without leaving has specially so provided.

child or descendant, the property is to go to

the children of the testator's brother. He Smith's Appeal, 61 Conn. 420, 16 L. R. A. 538, 24 Atl. 273; William's Appeal, 73 Pa.

died on the 8th December, 1896, and in June, 277; Bonner v. Lessley, 61 Miss. 397;

1898, the court assumed jurisdiction of the

trust. Moorman v. Crockett, 90 Va. 198, 17 S. E.

The appellee and the decedent were mar875.

ried in 1883. From the time of the mar. The mere fact of there being a dissention riage up to his death, it seems not to be between the cestui que trust and the trus- questioned that their intercourse was har: tee is not a sufficient ground for removing monious and agreeable. From the period of that trustee from the trust.

Mr. Clark's death, there arose causes of esForster v. Davies, 4 DeG. F. & J. 139; trangement between the widow and the chil. Gibbes v. Smith, 2 Rich. Eq. 134; Clark v.

(Iren, which have brought about much bad Anderson, 10 Bush, 113; Nickels v. Philips, feeling, and broken up all the pleasant rela18 Fla. 735; Keen's Estate, 6 Pa. Co. Ct. tions that may have heretofore subsisted be645; Sterenson's Appeal, 68 Pa. 105.

tween them. We do not deem it necessary, Testator's judgment in appointment will in the view we take of the case, to enter in. not be interfered with.

to a discussion of the nature of these causes, Berry v. Williamson, 11 B. Mon. 245;

nor to make any attempt to determine how McPherson v. Cox, 96 U. S. 404, 24 L. ed. far the suspicion and distrust the children 746; Smith's Appeal, 61 Conn. 420, 16 L. R.

seem to entertain for the appellee may be A. 538. 24 Atl. 273; May v. May, 167 U. S. justified by the circumstances as they are 317, 42 L. ed. 183, 17 Sup. Ct. Rep. 824. disclosed by the record. It will be suf


ficient to observe that in fact ever since , have regarded the interest and probably the Mr. Clark's death these causes have operated wishes of all the members of his family. to bring about a most unfortunate state of At the time he selected his widow as one bad feeling in the family, and to develop of the trustees for his daughter, he must differences respecting the conduct of the have believed that the agreeable relations trust which have kept the estate in constant between her and his children would continue litigation. The appellee, it is true, has tes. to exist after he was gone. He probably did tified that she has never entertained "one not anticipate that she would remarry withmoment of ill will against one of them" | in less than a year and a half after his (meaning Mr. Clark and his sister); and death, and thereupon would be broken up it may be conceded that the appellee has tes the home where they had so happily resided, tified with entire candor and honesty. But nor that there would spring up so soon esnotwithstanding this, it seems improbable, trangements of serious character and farif not impossible, that, under all the circum- | reaching effect. His object in joining her in stances of the case, she can ever resume the management of the trust could not have with them the kindly and sympathetic rela- been to supply the business skill needed for tions that existed during the lifetime of the the successful control of so large an estate, testator, and are so necessary for the suc for that was already supplied by the other cessful conduct of a trust like the one under trustees. What else could have been his mothis will. It may not unreasonably be as- tive, but that there might be at his daughsumed that the testator made selection of ter's side a safe, agreeable, and sympathetic his widow not only because of his entire con- medium through which she could convey her fidence in her judgment and integrity, but wishes respecting the trust estate to those also because he knew of her satisfactory re- that had it in charge? Her position on the lations with Mrs. Polk. He must have board of trustees seems to be an additional sought not only that his daughter's share proof of the fact that he intended the trust of his estate should be wisely and honestly estate primarily for the benefit only of his controlled, but that her dealings with those daughter, to be enjoyed by her in the most managing the trust might be through the agreeable as well as the most advantageous medium of the appellee, whose affectionate

It is apparent, also, from the face solicitude for her comfort and welfare would of the will that the scheme of the testator soften to some extent, at least, the burden

was, after providing liberally for his widow, of having to submit to the will of others. to so dispose of all his property in such a These remarks are not intended as the state- manner that it should eventually go down in ment of a sufficient ground for a removal, the line of his own blood. The testimony for the reason that it seems to be well set- also shows that he was exceedingly solicittled that mere unfriendliness of the cestui ous that his dispositions should be acceptque trust towards the trustee is not a suf- able to his wife. He trusted her, talked ficient ground per se for the removal of the with her about his will, read it to her, and latter. Forster v. Davies, 4 DeG. F. & J. she promised him to do what he wished her 139; Wilson v. Wilson, 145 Mass. 492, 1 Am. to do. Mr. Snowden, who prepared the will, St. Rep. 477, 14 N. E. 521. But these re- testified that after the will was executed the flections, we think, enable us to approach the appellee "was called into the parlor, and Mr. consideration of other features of the case Clark requested me to read it to her, which in our judgment of more importance. The I did, very carefully and deliberately, and last will of the testator was made and exe- he asked her if she understood it, and cuted in the year 1892, four years prior to whether she approved of it, to which she rehis death. It evinces a solicitude for the plied that she did.” Notwithstanding this welfare of each member of his family, as solemn declaration on her part, she rewell as an earnest desire to maintain an ab- nounced the will, and elected to take in lieu solute equality among his children. He in thereof her dower or legal estate. By this tended, it is true, to guard the share of Mrs. act she took out from the operation of the Polk by means of the trust, for reasons of trust a very large amount-probably several which we are not informed, but which we hundred thousand of dollars—and direrted must assume were inspired by the expecta- it to her own use. We are not now ques. tion that it would operate for her benefit. tioning in any manner her right thus to reBut he bestowed upon each of his childrennounce, or what the moral aspect of the ict an equal share of the estate. To the widow may be, when considered in connection with he was extremely liberal. He gave her a the statements and promises made by her to life interest in more than one half of his her late husband, but we regard it now only estate. It included the dwelling and con- as a fact to be considered in connection with tents, and an income estimated by one of other matters in relation to the trust. More. the counsel to amount to more than $50,- over, it appears from the record that less 000 per annum. He seems, therefore, to than one year and a half after her husband's death she remarried, and ceased not only tween the cestui que trust and the trustee is to be on good terms with her stepchildren, not, it is true, a sufficient ground for the rebut all intercourse of every kind with his moval of a trustee, because, as was said in family ceased. It is clear that by these acts | Forster v. Davies, 4 DeG. F. & J. 139, a she destroyed a very important part of the cestui que trust "might at any time raise a scheme of the testator. His property has quarrel with the trustee, and thereupon been diverted from the channel in which he come to this court to discharge the trustee desired it to go, and the trust has been de and remove him from the trust upon the pleted to the extent of many thousands of ground of the impossibility of their acting dollars. Moreover, the proof shows that her together.” But it is also well settled that cotrustee, Mr. Clark, entertains feeling of an application by a cestui que trust to resuch a positive character towards her that move a trustee is addressed to the reasonproper co-operation between them in the able discretion of the court, and “requires business of the trust has become impossible, a careful consideration of all the circumand also that the beneficiary has become stances, the existing relations, and to some charged with distrust of her, founded upon extent the state of feeling between the parher dealings with the property of the tes- ties.” Scott v. Rand, 118 Mass. 215. And tator, so that for the future there can no so in May v. May, 167 U. S. 320, 42 L. ed. longer be personal relations between them. 184, 17 Sup. Ct. Rep. 828, the Supreme Finally, whatever amount of blame may or Court said: “The power to remove a trusmay not attach to the appellee, if any, there tee and to substitute another in his place can be no doubt her participation in the is incidental to its paramount duty to see trust has for many years operated to keep that trusts are properly executed, and may the estate in litigation, at much expense; properly be exercised whenever such a state and it is not unreasonable to expect that, if of mutual ill feeling, growing out of his beshe remain, there may be other recurring havior, exists between the trustees, or bematters that will develop still further liti.tween the trustee in question and the benegation for many years longer. In additionficiaries, that his continuance in office would to this, we think it is clear that the testa: be detrimental to the execution of the trust, tor created this trust for the benefit of his even if no other reason than that human daughter, and selected his wife to be one of infirmity would prevent the cotrustee or the trustees, not for her personal advantage, the beneficiaries from working in harmony but for that of the costui que trust. His with him, and although charges of misconwill ought to and must be respected; hut duct against him are either not made out, it is not for a moment to be even suspected or are greatly exaggerated.” Disbrow v. that he would have appointed anyone for Disbrow, 46 App. Div. 115, 61 N. Y. Supp. the performance of the duty of trustee for 614, Affirmed in 167 N. Y. 606, 60 N. E. the benefit of his daughter whose first act 1110; Wilson v. Wilson, 145 Mass. 490, 1 would be the depletion of the trust by re- Am. St. Rep. 477, 14 N. E. 521. nouncing his will, and thereby diminishing We do not rest our decision in this case the value of the trust estate, and to that ex- upon the mere fact of inharmonious relatent destroying his cherished hopes and tions between the appellee and Mrs. Polk, wishes, and afterwards, having remarried, or between the appellee and her cotrustee; become so obnoxious to his children that but we are of opinion that these and other they are unwilling to have dealings with facts stated in the record, and particularly her. These things show a want of fidelity that she has placed herself in a position of to the wishes of the testator, and render the hostility to the plans of the decedent, whereperson so affected unfit to keep the financial by the trust fund has been materially deprosperity of his daughter in her hands. In pleted, convince us that she is not a proper addition to this, we think it undoubtedly person to longer act as a cotrustee of the was Mr. Clark's desire that his daughter fund, and should therefore be removed. should not only receive her income prompt- Order reversed and cause remanded, that ly, but that she should be made comfort- an order may be passed removing the appelable in the reception of it as well as in its lee from the trusteeship; the appellee to enjoyment. The mere fact of dissention be- ' pay costs in this court and below. 69 L. R. A.


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COLLINSVILLE SAVINGS SOCIETY "make an estimate of the actual cash cost v.

of replacing or repairing the same, or the BOSTON INSURANCE COMPANY, Appt. actual cash value thereof, at and immediate

ly preceding the time of the fire; and, in (17 Conn. 676.)

case of depreciation of the property from

use, age, condition, location, or otherwise, a An open inortgage clause attached to a proper deduction shall be made therefor.”

policy of fire insuranee, which merely The appraisers thereupon made their award. provides that loss, if any, shall be paid to a determining therein that the sound value of mortgagee as his interest may appear, does

the property was $17,500, and the fire loss not create any contract relations between the

$3,571.94. The sound value was arrived at mortgagee and insurer, or give the mortgagee a right to participate in arbitration pro. by estimating the cost of construction of a ceedings to fix the amount of loss; and, there. new building, and deducting therefrom the fore, he will be bound by the award, although depreciation arising from the length of time he was given no opportunity to be heard. the burned building had been built, and the

use to which it had been put. Upon this (April 20, 1905.)

basis an apportionment was correctly made,

and the defendant's liability ascertained to A $

of the Superior Court for Hartford ing been made by Woodruff, the defendant County in plaintiff's favor in an action made out its sight draft for said sum of brought to recover the amount alleged to $510.28, payable to the joint order of Woodbe due on a fire insurance policy. Reversed

ruff and the plaintiff, and attached thereto in part.

a receipt to be signed by said payees, and to Statement by Prentice, J.:

accompany the draft when presented for One Woodruff was the owner of a lot of edge of the result of the appraisal, in

payment. Woodruff thereupon, with knowlland in New Hartford, with a building dorsed said draft and signed said receipt, standing thereon. These premises were sub

which recited that the amount of the draft ject to a mortgage to the plaintif for $10,

was received of the defendant in full of all 000. Woodruff caused the building to be

claims and demands for loss and damage by concurrently insured in five companies for

reason of its said policy and the fire in ques. the total sum of $9,000. The defendant wrote $2,000 of this amount. The policies tion. The plaintiff

, having been presented were in the form of the Connecticut stand

with certain, at least, of the drafts and reard policy, had stamped thereon the so

ceipts made out in settlement of said loss, called reduced rate, or 80 per cent, clause, thereupon notified the defendant that it and bore the indorsement, “Loss, if any,

would not accept the award, and subsequentpayable to the Collinsville Savings Society ly brought this action. The plaintiff was as their mortgage interest may appear.” not a party to said submission, nor did it The building having been damaged by fire, participate or acquiesce in the same or in the defendant and Woodruff made a submis. the proceedings thereunder. Woodruff has sion in writing to two appraisers and an

never objected to or complained of the umpire in the manner prescribed in the pol. award. On the day upon which the plainicy. This submission, whose result the pol- tiff notified the defendant, as stated, that it icy provided should be final, left to the de refused to recognize the award, it obtained termination of the appraisers and umpire from Woodruff an assignment in writing of the two factors from which the defendant's all his right, interest, and claim against the liability could be ascertained by a mathe defendant by reason of said loss, and forthmatical calculation, to wit, the "sound with gave notice thereof to the defendant. value” of the property damaged and the fire The evidence disclosed no suggestion of bad damage. It also provided that, in deter faith on the part of either the defendant or mining the sound value and the loss upon Woodruff. The trial court ruled in favor the property insured, the appraisers should I of the plaintiff's contention that it was not

NOI E.-As to right of mortgagee to be a payable to him as his interest may appear, of party to arbitration on a loss under an insur an accord and satisfaction between the insurer ance policy taken out by the mortgagor, but and the owner of the premises, see Hathaway v. containing an indorsement that the losses, if Orient Ins. ('o. 17 L. R. A. 514. any, shall be payable to the mortgagee, see, in As to rights given generally by attachment of this series. Bergman Commercial Union mortgage clause to insurance policy, see note Assur. Co. 15 L. R. A. 270.

to Phenix Ins. Co. v. Omaha Loan & T. Co. 26 As to effect on rights of mortgagee in policy L. R. A, 679.

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