argument is that our statute for preventing | lapses in certain cases is confined to legacies which lapse by reason of the death of the beneficiary after the execution of the will, and that it does not operate to save a bequest which was void when made, because the beneficiary was already dead when the will was executed. In the view we take of the case it is unnecessary to determine whether our statute is so limited or not, because this case must be controlled by the universally accepted principle that no rule for the construction of wills shall be permitted to defeat the intention of the testator expressed in the will itself. The determination of the second question presented by the reservation depends upon whether the sixth clause of the will creates a gift to a class with a right of survivorship or a gift to each of the six children of the testatrix. The decisive words are as follows: "Sixth. I direct my executors hereinafter named to divide all the rest, residue and remainder of my property into six equal shares or parts and 1. To pay over one of such shares or parts to my son Charles N. Lee. 2. To pay over one other of such shares or parts to my son Frederick H. Lee." [2, 3] The first enacting clause of the codi- It seems too clear for discussion that no cil here in question is as follows: "First. I hereby reiterate and reaffirm all the provisions of my said last will and testament, except in so far as the same are altered hereby." That is to say, the testatrix reiterates and reaffirms, as of January 20, 1908, the third clause of her will making certain bequests to sisters already dead, obviously intending, so far as her written word is concerned, that such legacies, in common with all other unaltered provisions of her will, should continue in the same legal force and effect as before the codicil was executed. joint tenancy or class gift with right of survivorship can be constructed from such language. The question has been so recently before us that it is only necessary to refer to Allen v. Almy, 87 Conn. 517, 89 Atl. 205, and White v. Smith, 87 Conn. 663, 89 Atl. 272. It follows that the share of Frederick H. Lee, who died, without issue, before the testatrix, is intestate estate. The superior court is advised, first, That the issue of Sarah R. Guinn and Jerusha A. Winsolow, respectively, take the legacies given to the testatrix's sisters under the third of the rest, residue, and remainder of the estate given to the testatrix's son Frederick H. Lee is intestate estate. The other Judges concurred. The statute, which the testatrix is presum-clause of the will; second, that the portion ed to know, had, at the dates of the sisters' deaths, converted their legacies into valid gifts to the issue of such sisters; and it would be a misapplication of the rule contended for to hold that the testatrix, by the very act of reaffirming these gifts, had inadvertently made them utterly ineffectual in law. Blakeslee v. Pardee, 76 Conn. 263, 267, (Supreme Court of Errors of Connecticut. July 56 Atl. 503. The codicil of 1908 did not convert the bequests contained in the third clause of the will into void legacies. They still remained of the same effect, and therefore still remained operative under the statute as gifts to the issue of the original legatees. STATE v. McGEE. 13, 1914.) 1. FOOD (§ 15*)-SALES-REGULATIONS-STAT- [4] In this connection we are asked to determine whether extrinsic evidence is admis-lation arising from the sale of food "prepared sible to prove that the testatrix, when she executed the codicil, knew that her sisters were dead, and also that she then believed the legacies had lapsed and become void by reason of their deaths. We answer that evidence of her knowledge of the sisters' deaths is admissible as one of the circumstances surrounding the execution of the codicil, but that evidence of her belief that the legacies to her sisters had become void is not admissible. Its only importance would be as tending to prove that the testatrix, in executing the codicil, did not intend to make cumulative gifts to the issue of her deceased sisters; extrinsic evidence of such intent is inadmissible. Bishop v. Howarth, 59 Conn. 455, 22 Atl. 432; Bryan v. Bigelow, 77 Conn. 604, 614, 60 Atl. 266, 107 Am. St. Rep. 64; Seymour v. Sanford, 86 Conn. 516, 521, 86 Atl. 7. An information, charging a sale of a can of tomatoes without the net quantity plainly marked on the outside, charges a violation of Acts 1911, c. 134, penalizing any person selling food in package form, unless net quantity of contents be plainly marked, and it need not negative the proviso that no penalty shall be enforced for any violation arising from the sale of food prepared and inclosed in package form prior to 18 months after the passage of the act, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes and the fact that the sale is within the provi- tion of the sale of food in package form unso is a matter of defense. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. § 111.*] less it is marked as indicated. Prior to this enactment the sale of food in unmarked packages was not unlawful. Chapter 255 of the Public Acts of 1907, to the penalties of which Appeal from Criminal Court of Common violators of the act now in question are Pleas, Fairfield County; John J. Walsh, made subject, makes it unlawful to sell or Judge. offer for sale adulterated or misbranded Thomas H. McGee was convicted of violat-package foods, but it does not require that ing Pub. Acts 1911, c. 134, and appeals, as- | foods sold in packages be marked or branded. signing as errors the court's action in over- If branded they must be correctly branded, ruling a demurrer to the information, in refusing to charge as requested, in charging that on the agreed facts the state is entitled to a verdict, and in overruling defendant's objection to the imposition of any penalty, and in imposing a fine of $50. Affirmed. Ralph O. Wells, of Hartford, for appellant. Frederick W. Huxford, Pros. Atty., of Stamford, for appellee. THAYER, J. [1] The defendant was convicted in the criminal court of common pleas upon an information which charged him with having sold, on March 8, 1913, food in package form, namely, one can of tomatoes, without the net quantity of the contents of the package being plainly and conspicuously marked upon the outside of the package. The information was founded upon the provisions of chapter 134 of the Public Acts of 1911, which, so far as material to this case, reads as follows: and the act makes it clear that to state upon the package in terms of weight or measure any other than the correct weight or measure of the contents of the package is "misbranding." That is, the correct net quantity of the contents must be stated if the package is marked or "branded." That statute was aimed at "misbranding," where the food packages were in fact marked or branded. The purpose of the present act was to prevent the sale of food in packages unless the net quantity of the contents of the package is marked thereon. Considering the condition of the law at the time the act was passed this is entirely clear. To effectuate this purpose the offering of such foods for sale, unmarked as to the quantity, was included in the penalty. Section 3 of the act, after providing expressly that it shall take effect from its passage, adds the provision upon which the defendant relies to support his claim. He says that the last clause of the section, "prior to "Sec. 1. Any person who shall sell or offer 18 months after the passage of this act," for sale food in package form, unless the net modifies the words "prepared and inclosed" quantity of the contents be plainly and con- which immediately precede it. This would spicuously marked on the outside of the pack-doubtless be the natural grammatical con* shall be subject to the penalties provided in chapter 255 of the Public Acts of 1907. * age * "Sec. 3. This act shall take effect from its passage but no penalty shall be enforced for any violation of the provisions of section one arising from the sale of food prepared and inclosed in package form prior to eighteen months after the passage of this act. Approved July 11, 1911." There was a demurrer to the information which was overruled, after which the case was submitted to the jury upon an agreed statement of facts with an instruction that if they found the facts as stipulated to be true their verdict should be for the state. All the facts alleged in the complaint were admitted by the stipulation and also the additional fact that the can of tomatoes described in the information had been prepared and inclosed in the can prior to January 11, 1913. The defendant's claim is that by reason of the provisions of section 3 of the act he could not properly be convicted or sentenced upon these facts, the tomatoes having been prepared and inclosed in the can prior to 18 months after the passage of the act. The question of the proper construction to be placed upon the statute is thus raised. struction, and should be followed unless it intend. If followed it leads to the result "This act shall not take effect until eighteen months after its passage and shall not apply to sales of foods prepared and inclosed in packages prior to the time when it takes effect." The construction thus claimed renders the The purpose of the statute is apparent. It first clause of section 3 nugatory. Some othcontains in the first section a general prohibi-er construction must therefore be sought, for closed in package form" refer and were intended to refer to foods as inclosed at the it must be presumed that the Legislature by the explicit language of the first clause of section 3 intended the act to immediately time the statute in question was enacted. affect some sales at least, included in the general prohibition of section 1 of the act. We must look through the whole statute to determine its proper construction and the proper construction of its parts. This construction renders the defendant's claim that the final clause of section 3 modifies the words "prepared and inclosed" untenable. Had the word "now" preceded these words, thus clearly expressing the intent which we hold that the language of the proviso as it now reads expresses, the claim could hardly have been made. Our construction makes the last clause of section 3 modify the word "sale." It thus gives effect to the proviso by exempting from the operation of the general prohibition of section 1, for 18 months, sales of foods already inclosed in packages when the statute was enacted. of section 3 and to the first section of the act, for under that construction the sale at any time after the act was passed of any foods which were prepared and inclosed in unmarked packages after the passage of the act subjects the seller to the penalties provided, and the sale after January 11, 1913, of food in such packages, whenever inclosed therein, renders the seller liable. The defendant, admittedly, sold such an unmarked package of food on March 8, 1913, as alleged in the information, and it follows from our construction of the statute that he was properly convicted and sentenced. To determine what sales, if any, were intended to be saved from the penalties of the general enactment it is pertinent to ask, What sales, if any, ought to be saved from such penalties? Naturally sales of foods prepared and inclosed in packages at the time the act took effect. These packages would be on hand at the time when the law making their sale unlawful, when unmarked with the net quantity of their contents, was enacted. It gives immediate effect to the first clause There would be good reason for excepting their sale from the immediate operation of the statute. It might lead to public inconvenience to prevent the immediate sale of these, because time would be required for merchants and packers to restock with new goods properly marked of the character ordinarily carried by them, or to properly mark the goods which were on hand. As such goods had been prepared and inclosed when their sale, unmarked, was lawful, it would be proper to except from the provisions of the act, for a reasonable time, the sale of such unmarked packages. No good reason is apparent for allowing the owners of such packages and others during this time to stock up with other unmarked foods to be sold without penalty afterwards for an indefinite period until wholly disposed of. This would violate the plain intent of the enacting clause. It is not conceivable that the Legislature intended this when it said that the act should take effect from its passage. What it intended was that the act should have effect as to sales of unbranded package foods thereafter prepared and inclosed, but that the sale of such package foods prepared and inclosed at the time the act took effect should not, for 18 months after its passage subject the seller to the penalties provided by the act. While the language is not felicitously chosen to express this intent we think that it is readily susceptible of that meaning. It is the only construction of the whole act which gives effect to all of its language and gives the act an immediate effect after its passage as its language requires; unless it be said that the proviso relates only to sales of foods and leaves the act to operate upon the offering of them for sale. Such a construction would be preposterous. It would render the defendant guilty and punishable for offering the goods for sale at any time after the passage of the act, while for the actual sale of them he would be immune from punishment. We cannot impute to the Legislature an intent to accomplish such a result. We think that the words "prepared and in [2] The claim upon the demurrer was that the information is insufficient because it does not state when the tomatoes sold were prepared and inclosed in the package, and negatives the proviso. This was not necessary. The proviso does not enter into the description of the offense. The information counts upon the general prohibition of section 1 of the statute. The proviso in the subsequent section merely excepts a case from that prohibition. If the sale in this case fell within the exception, it was a matter for the accused to prove as a defense. The state was not called upon to negative the proviso. Bishop, Crim. Procedure, vol. 1, § 639; State v. Miller, 24 Conn. 522, 527; State v. Powers, 25 Conn. 48, 51; State v. Wadsworth, 30 Conn, 55, 59; Adams v. Way, 33 Conn. 419, 428. This is the general way. But were the rule otherwise the information sufficiently shows that the sale alleged did not fall within the excepted class, for the exemption from liability extended only to sales of this class made within 18 months after the act went into effect, and it is alleged that the sale complained of was made nearly three months after that period. The demurrer was therefore properly overruled. As the defendant's claims under the other exceptions depend upon the correctness of his construction of the proviso, it is unnecessary to consider them further. There is no error. In the opinion the other Judges concurred. MCCABE v. ARMOUR & CO. (Supreme Court of Errors of Connecticut. July 13, 1914.) 1. EASEMENTS (§ 44*)-DEED-CONSTRUCTION. A deed through which defendant claimed title granted the right, in common with the grantors and others, to pass and repass along a certain passageway and court leading from C. street to the west side of the premises conveyed, bounded north by C. street, east and west by land of the Commercial Stock Company, about 9.25 feet wide, for a distance of 43.7 feet, running into an open court about 40 feet by 36 feet, and thence over, along, and across the court to the west side of the premises conveyed, etc. It appeared, however, that the grantor had no rights in a 7-foot strip next South of its building extending from the archway to the grantors' property on the east, and at the time the deed was executed such strip was occupied by permanent structures erected thereon, as it was when the grantors acquired their rights in the open court, and had continued to be so occupied up to the time of the trespasses complained of. Held, that the statement in the description giving the length of the east wall of the archway as 43.7 feet was a mere mistake of the scrivener; it appearing that the court began 43.7 feet south of C. street, and hence did not include the entire open space, but only a portion 30x33 feet excluding the 7-foot strip on the south side of the Commercial Stock Company's building east of the archway, and a strip about 9 feet adjoining the west side of defendant's building, extending the entire 40 feet from north to south. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.*] 2. EASEMENTS (§ 44*)-DEED-CONSTRUCTION. Where a deed to certain property including a right of way over a court gave defendant a right of way across a specified strip to its building, but at the time the deed was executed the way in use extended across the strip just south of an ash pit where the only door opening out of defendant's building upon the strip was located, and all space to the north of it was obstructed by plaintiff's ash pit, and by the obstructions which continued to exist on the adjoining seven-foot strip belonging to another, defendant was not entitled to a right of way over the entire nine-foot strip on the west of its building not a part of the court, and hence the removal of a slab covering the pit and the use of the top of it as a platform from which to load wagons constituted a trespass. [Ed. Note. For other cases, see Easements, Cent. Dig. 88 98-100; Dec. Dig. § 44.*] Appeal from Superior Court, Hartford County; Marcus H. Holcomb, Judge. Action by Patrick McCabe against Armour & Company. Judgment for plaintiff, and defendant appeals. Affirmed. James E. Cooper and John H. Kirkham, both of New Britain, for appellant. John Walsh and Bernard F. Gaffney, both of New Britain, for appellee. which are owned in severalty by the plaintiff, one Dawson and the Commercial Stock Company. The plaintiff's building occupies the entire southerly side, Dawson's building Occupies the westerly side, and the Commercial Stock Company's building occupies the northerly side. These three abutting owners own in severalty the fee of the entire open space, the plaintiff owning the entire easterly portion upon which the defendant's land and building abut. The defendant owns no part of this open space, the line of the westerly face of its building being the westerly boundary of its lot. Access to this open space is had through an arched passageway 94 feet wide through the building of the Commercial Stock Company from Commercial street upon which that building and the defendant's building front on the north. At the extreme northeast corner of the open space as thus described, the plaintiff had erected upon land, of which the fee was in him an ash pit about 5 feet and 4 inches wide from east to west and 6 feet long from north to south and 5 feet in height covered with a blue stone slab. The defendant removed this slab and about a foot of the brickwork and recovered the pit, and is using the top of the ash pit as a platform from which to load and unload meat in the prosecution of its business. This action is brought to recover damages for this claimed trespass and to restrain the further use of the top of the ash pit as a means of entrance to the defendant's building. The defendant's title to its land and building came to it through mesne conveyances from the plaintiff and his brother, and it is a conceded fact in the case that the defendant has a right of way, granted in the McCabe deed, to pass from Commercial street through the arched passageway and across the open space to the west side of its building in connection with the use of its property. The dispute between the parties is as to the extent of the defendant's rights in the open space west of its building. So far as appears, no claim was made to any right otherwise acquired than by this deed. The court held that the defendant did not acquire through the McCabe deed any right to do the acts which are complained of as having been done or threatened to be done. The portion of this deed upon which the defendant relies reads as follows: "Together with the right in common with the grantors and others to pass and repass on foot and with animals, vehicles and teams of all kinds, over along and upon a certain passageway and court way leading from Commercial St. to the west side of the premises herein conveyed; said passway leading from Commercial St. southerly, and is bounded north by Com THAYER, J. [1] It appears from the find-mercial St.; east and west by land of the Coming and exhibits which are a part of it that the defendant owned a lot of land in New Britain covered by a brick building which abuts westerly, in part, upon an open space about 36 by 40 feet in dimensions, which is inclosed on the other three sides by buildings mercial Stock Company, and is about nine and twenty-five one hundredths (9.25) feet wide for a distance of forty-three and seven-tenths (43.7) feet when the same opens into an open court feet and thence over, along and across said open about forty (40) feet by about thirty-six (36) court to the west side of the premises herein conveyed, with the right to the use of the same For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes for loading and unloading merchandise from and on teams and vehicles; said passways rights and rights in said court being more fully and at large set forth in a deed from the Commercial Stock Company to said grantors dated June 25, 1895, and recorded in Volume 12 (Mss.) Land Records of New Britain, page 177, and by an agreement between James L. Dawson and the grantors dated November 5th, 1897, and recorded Volume 14 (Mss.) Land Records of New Britain, page 172, to which, deed and agreement reference is hereby made." There is no error. The other judges concurred. STATE v. PECK. across the strip just south of the ash pit, where the only door opening out of the defendant's building upon this strip of land was located. All to the north of it was obstructed by the plaintiff's ash pit and by the obstructions which continue to exist upon the adjoining 7-foot strip of the Commercial Stock Company. The defendant has changed the location of its door to the north, making it necessary in order to enter the building to The defendant claimed that the "open pass over the ash pit. These and other excourt" referred to in this description includes trinsic circumstances were to be considered the entire open space 36x40 feet in dimen- in connection with the language of the deed sions within the rear walls of the four build- to reach a proper determination as to the ings mentioned. The court has found that intention of the parties expressed by the genthe open court does not occupy this entire eral language. Its construction was thus space, but occupies only a portion of it 30x33 rather a question of fact than a question of feet in dimensions and excludes a strip about law for the court to determine. School Dis7 feet wide on the south side of the Commer-trict v. Lynch, 33 Conn. 330, 333. But, cial Stock Company's building east of the whether of law or of fact, we think it was archway and a strip about 9 feet adjoining correctly decided. the west side of the defendant's building and extending the entire 40 feet from north to south. The deed and agreement which are referred to in the deed from the McCabes to Armour and the map which is made a part of that deed show that the Commercial Stock Company did not convey to the McCabes any right of way or other rights in the sevenfoot strip next south of its building extend- 1. ing from the archway to the McCabe property on the east. At the time the deed was given to Armour, this strip was occupied by permanent structures erected thereon, as it was when the McCabes acquired their rights in the "open court" and has continued to be so occupied, as found by the court, up to the time of the trespasses complained of. Both the language of the deed from the Commercial Stock Company to the McCabes and the map which is made a part thereof show that the north line of the court described therein is about seven feet south of the south line of that company's building. These conclusively show as the court has found that the statement in the description giving the length of the east wall of the archway as 43.7 feet is a mere mistake of the scrivener and has not the importance which is given to it by counsel for the defendant. The map makes it clear that the open court begins 43.7 feet south of Commercial street, and the trial judge finds that the east side of the brick wall of the archway is 37.2 feet. [2] The defendant, having failed in its claim that the open court included the entire 36x40 feet included within the brick walls of the buildings, has no case unless the deed upon which it relies grants a right over the entire 9-foot strip on the west of its building now owned by the plaintiff which is not a part of the court. The deed undoubtedly gives the defendant a right of way across this strip to its building. The location of the way is not fixed by the deed as a matter of mere construction of the deed. At the time when it was given, the way in use extended (Supreme Court of Errors of Connecticut. July 13, 1914.) ATTORNEY AND CLIENT (§ 45*) DISBAR MENT-GROUNDS. Misconduct on the part of an attorney, who was judge of the probate court, in the course of the settlement of an estate of a deceased person in such court, justified his disbarment, since it directly involved a misuse of his professional privilege and was misconduct as a member of the bar, and moreover any misconduct. professional or nonprofessional, disclosing a moral unfitness for the enjoyment of the professional privilege, justifies disbarment. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 63; Dec. Dig. § 45.*] 2. ATTORNEY AND CLIENT (§ 46*) DISBARMENT-DEFENSES-HOLDING JUDICIAL POSI TION. That an attorney sought to be disbarred was judge of the probate court did not prevent his disbarment, since the judge of the probate court need not be an attorney, and his disbarment could have no effect upon his official status. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 71; Dec. Dig. § 46.*] 3. ATTORNEY AND CLIENT (§ 52*) DISBARMENT PROCEEDINGS COMPLAINT - SUFFICIENCY. ceeding to disbar an attorney must be deterThe sufficiency of the complaint in a promined upon an examination of the complaint as a whole. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 69, 70; Dec. Dig. § 52.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |