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fore review the situation, as recited, as that 622. We are therefore of opinion that the which was before the district court. Simard writ of certiorari should be denied, and it personally and physically desisted from in- is so ordered. terference with the hay after service upon him of the writ of injunction, but did he HARWOOD, J., concurs. not obtain to be done that which he did not personally do? The district court pró- PEMBERTON, C. J., did not sit in the ceeded upon the ground that he did. The hearing of this case. injunction was against Simard, his agents, servants, and employes, and all others acting in aid or assistance of him. It appears that the relation of Simard to Asselin and MONTOYA DE ANTONIO Y. MILLER. La Casse was very close. Simard knew that

(Supreme Court of New Mexico. Aug. 26, Hanratty and Tillman claimed title to the

1893.) ground by purchase from the railroad com

Devise PAYABLE ON “BECOMING OF AGE"-RIGHT pany. He recognized that claim when he

TO SHARE ON MARRIAGE. contracted to cut the hay for them. After 1. Testator devised the residue of his esagreeing to cut the hay for them, he pur- tate to executors named, in trust for the eduported to sell the grass to Asselin and La

cation and maintenance of two minor children,

and directed that, as and when they “become Casse, and agreed to cut it for them. Then

of legal age," the shares shall be turned over afterwards, at the service of the writ, he to them, and, if either shall die before “be said that it was his own, and he was going coming of age,'' the share of such deceased to have it. If his position was only that of

child shall go to the survivor. Held that, in the

absence of a statute providing otherwise, such a servant of Asselin and La Casse, he con

devisees were not entitled to their respective tradicted his claim to that relation when, shares on his or her marriage before arriving at the time of the service of the writ, he

at the age of 21 years.

2. Comp. Laws 1884, § 1024, which pro claimed the hay himself. If he were only

vides that "the guardianship over men and & servant, he had no interest in the hay, women shall cease with their marriage," does or its disposition, after he had informed his not entitle such devisees to receive their share alleged master of the service of the writ.

on marrying. But we find him going to Missoula with

Freeman, J., dissenting. Asselin to consult lawyers, whom he de Appeal from district court, Bernalillo counscribes as "our lawyers." He says to ty; William D. Lee, Judge. Asselin: “From what our lawyers say, you Action by Lola Montoya de Antonio had better go ahead and cut the hay." So against J. W. Miller, as executor and trustee we find Simard recognizing the Hanratty under the will of William Kanzenbach, to and Tillman title on one day, and agreeing recover plaintiff's share of property devised to cut the hay for them. Very soon after- to defendant in trust for her and another. wards he is selling the hay to Asselin and From a judgment for plaintiff, defendant apLa Casse, and agreeing to cut it for them. peals. Reversed. Next we find him claiming the hay himself. Then, in company with Asselin, he is con

Bernard S. Rodey, for appellant. William sulting "their lawyers,” and he suggests to

H. Whiteman, for appellee. Asselin that he, Asselin, had better go ahead and cut the hay.

O'BRIEN, C. J. William Kanzenbach died We are of opinion that the district court

testate, declaring in a clause of his last will exercised a sound discretion if it concluded

and testament as follows: "All the residue that Simard, under the showing made, had

of my estate, real, personal, and mixed, I & very lively personal interest in the hay. give, devise, and bequeath to Lola Montoya All the circumstances together indicate this.

and Eduardo Montoya, children of AnasAlthough the claim is made that Simard was

tasia Montoya, of Cabezon, New Mexico, the only the servant of Asselin and La Casse, same to be held by my executors hereinyet we believe that the district court was

after appointed, in trust for the education justified in its conclusion that Simard dis- and maintenance of said children; and, as obeyed the injunction by advising or pro

and when they become of legal age, the curing Asselin and La Casse to do the pro- share of each to be turned over to them, and, hibited act. It is said by the New York if either of said children shall die before court of appeals “that injunction orders must becoming of age, the share of such deceased be fairly and honestly obeyed, and not de child shall go to the survivor of them." feated by subterfuges and tricks on the part After the death of the testator, and on the of those bound to obey them; that they 9th day of February, 1891, Lola, one of said might be violated by aiding, countenancing, legatees, with the consent of her mother, abetting others in violation thereof, as well married Domingo de Antonio. She was then as doing it directly; and that courts would 16 years and nearly 4 months old. J. W. not look with indulgence upon schemes, how- Miller, the appellant, was one of the testaever skillfully devised, designed to thwart mentary trustees, and he only qualified, and its orders." People v. Pendleton, 64 N. Y. as such was appointed by the probate court

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of Bernalillo county. After Lola's marriage, always refer to the period of 21 years, unshe demanded ber share of the estate of the less in states where women, by statutory appellant, and, upon his refusal to comply, enactment, reach majority before

that she applied to the probate court for an order period. It is not claimed that such change requiring him to do so. Tuis order she se- has ever been expressly made in this terricured, from which the appellant, Miller, in tory. his fiduciary capacity or as guardian, ap- It is held by the supreme court of the pealed to the district court, where the judg- state of Ohio, construing a will containing ment of the probate court was affirmed. this provision: "In the third place, it is From the latter judgment Miller brought the my wish and desire that the property may present appeal to this court.

be kept together until my youngest child The only question presented for determina- shall become of age, and to make use of it tion on this appeal is, did the appellee upon to the best advantage for supporting and her marriage become of legal age, so as educating my children; and, at the time the to be entitled to receive, by the terms of youngest shall become of age, the property the will, her portion of the estate? It is shall then be disposed of and divided equalnot claimed that other parts of the will ly among my children," (the testator's wife throw any light upon the clause cited, or was about 50 years old, and of his 8 children indicate any special meaning to be given to the youngest was then under 7)—that the esthe phrase "legal age,” as employed by the tate left the wife by another provision did testator. Do the words as here used mean not determine till the youngest child had atfull or partial legal age? If the former, tained the age of 21 years. Howe v. Fuller, the common law fixes the beginning of such 19 Ohio, 51. Anů in a case in the state of period on the day preceding the twenty-first Virginia, where the testator, after directing anniversary of birth, and the same has not that his estate should be equally divided been changed by any statute of this terri- among his seven children, added: “It is tory; if the latter, a person may be of legal | my will and desire that if any of my chilage for certain purposes before arriving at dren die before they attain to legal age, the age of 21 years, both at the common or without a lawful heir, in either case that law and under the statutes. In arriving at all such property as they may receive in a conclusion the testator's meaning should the division of my property return to my surcontrol. The property was his, and he had viving children or their lawful heirs,"—it a right to say how and when his legatees was held that the limitation over took effect should take it. Our duty is to carry into upon the happening of either contingency, effect the intention of the testator. If be and that upon the death of one under age, meant by the words employed that the ap- etc., his share vested in the survivors. pellant should hold the moiety of the prop- Brooke v. Croxton, 2 Grat. 506. The case of erty in trust for the benefit of Lola until McKim v. Handy, decided by the high court she arrived at the age of 21 years, her mar- of chancery of Maryland in 1849, (4 Md. Ch. riage before her arrival at that age would | 236,) is not in conflict with the views herenot entitle her to its custody or control. in expressed. The chancellor, in delivering But, if he had so intended, would be not the opinion of the court, says: “It is insisthave written in his will, until she "arrives ed by certain of the parties having an inat lawful age, or marries?" In suits grow- terest in the question that the terms 'lawful ing out of wills the terms “of age” and age,' as used in the will, mean the full age “of lawful age" have frequently been con- of twenty-one years; and, as the bequest was strued by the courts, and almost uniformly, contingent upon the legatee attaining that as meaning 21 years. Minority ceases when age, it never vested, but sunk in the residone becomes “of age" or "of lawful age,” uum for the benefit of those entitled there and not before; and marriage cannot change to. That the minority of females, as well as that status in the absence of statutory en- males, continues until twenty-one at coinactment. We must presume, when no con- mon law, is too clear for dispute, and I do trary intent is apparent that the testator not understand that there is anything in used the words in their ordinary meaning. our legislation which abridges the period Section 1024, Comp. Laws 1884, providing to every intent and purpose, though we have that "the guardianship over men and women several acts of assembly which confer capacisbali cease with their marriage," has ref- ties upon females under twenty-one, which erence to personal control, but does not pur- | they would be otherwise incompetent to export to declare them of legal age. Guardian- ert. Thus the act of 1799, etc., limits the ship of the person is absolutely inconsistent period to which guardians may be appointed with the conjugal rights of husband and by the orphans' court to a female infant to wife. But that statutory declaration does the age of sixteen years or marriage, when not mean that a married man of 20 years the guardianship ceases, and the ward or husof age may vote or hold office, or that a band, as the case may be, is entitled to rewoman married before reaching her majori- ceive from the guardian her property. The ty has the period of her legal minority di- act of 1829 (chapter 216, $ 5) declares that the minished. The common expressions “under guardianship of females shall continue to the age" and "over age" are not ambiguous, and age of eighteen or marriage, and the 6th and 7th sections of the same act require the land testator was warranted in assuming, guardian, upon her attaining that age, to that the legatee could legally receive or redeliver her property to her, and gives to her ceipt for the trust fund before arriving at receipt or release, executed before the or- the full age of 21 years. Should she die phans' court, the same effect precisely as before attaining legal age, her brother is, if she were of the full age of twenty-one by the express terms of the will, entitled to years. There can be no doubt, therefore,

the residue of the entire legacy. That conthat a female at the age of eighteen years

tingency is possible. We cannot adopt such is entitled to receive her property of her

construction of the plain, unequivocal languardian, and may release and acquit him guage of the will as would defeat, in such in respect thereof; but still, it is said, her le- event, the provident and generous intentions

of the testator. gal minority does not cease until she is twenty-one years of age, and it is very clear,

The question of guardianship does not propI think, that for many purposes it does

erly arise under this will. The estate is not. We are, however, construing a will,

granted to the two children, share and and the question is, what did the testator share alike, to be held in trust by the exintend by the term 'lawful age? Did he

ecutor for their support and education durnot mean that age at ich his female ing minority; one-half thereof to be deliv

ered to her and him "as and when" each grandchildren would be entitled by law to receive their estates from their guardian? attains full legal age, and, if either die before My opinion is he did so mean, and, if he did,

“coming of age," the survivor to take his or of course his intention must prevail, although

her share. It is as executor, and not as for many purposes the legal minority of the

guardian, that Miller received the trust. His legatee does not terminate until she attains

qualification as guardian, and erroneously the full age of twenty-one years." The chan

holding or dealing with the trust fund as cellor continues: "The language of the will

such, cannot change the terms of the will

under which he received it. The last clause is that the trustees shall, out of the funds

of that instrument indicates the nature of provided for the purpose, pay to each of

his office, and reads as follows: "I hereby the grandchildren, born and to be born, the sum of one thousand dollars, if they live to

appoint Rudolph Habaland, &c., and John

Miller, &c., executors of this will, and request attain lawful age. Lawful age for what?

that the probate court allow them to qualiWhy, lawful age to receive; that age at

fy without giving bond or security. If either which they are, according to our legislative

one shall not qualify, the other may act enactment, entitled to demand and receive

alone." Habaland did not qualify. The readfrom their guardians all the property, and

ing of this, in connection with the granting to give valid releases therefor." It is man- clause before cited, shows that this appellant, ifest that the conclusion reached is based up

by the plain terms of the will, holds the eson the peculiar statutory enactments of that

tate in trust as executor, and not as guardian. state. Under them a girl of 18 years has a

We do not express any opinion as to what right to demand her property of its legal our decision would be were this appellant custodian, and to execute valid releases

a mere guardian, holding, as such, the proptherefor. Under our laws she has no such

erty of his ward after marriage. We simright. The statutory declaration that "the

ply determine the rights and duties of appelguardianship over men and

women shall lant and appellee as fixed by the will. The cease with their marriage" cannot, by the rule adopted in the McKim Case is not in conmost strained construction, receive any such flict with these views. By the laws of Mainterpretation. Release from the legal guard- ryland a female arrives at "legal age," for ianship of one's person does not imply the certain purposes, when 18 years. One of duty of a trustee to surrender, or of a mar- such purposes is the reception of a legacy. ried female minor to demand from such trus- The court in that case accordingly held that tee, a legacy intrusted to his care and con- where a legacy was given to a female child, trol, for delivery to beneficiaries as soon if she llved to attain "lawful age,” such as they severally attain lawful age. If Lola female was entitled to receive the same as has such right, why not her brother, Ed- soon as she attained the age of 18 years. uardo, if he marry during his minority? If There is no such law in this territory. Hence such were the testator's intention, why did he the judgment of the court below, so far as it not so express it in his will, by adding after requires appellant to pay over to appellee the words “of lawful age" "or marry ?" her moiety of the trust fund, or to disturb Plainly he meant what he wrote, and he him in the due execution of such trust, is wrote exactly what he intended. That in- | reversed. tention we must respect. No legal enactments existed in this territory that could war- FALL and SEEDS, JJ. concur. FREE rant the testator in assuming, as the Mary- MAN, J., dissents.

WALKER v. NEW MEXICO & S. P. R. CO. (Supreme Court of New Mexico. Aug. 26,

1993.) CONSTITUTIONAL LAW – Right TO JURY TRIAL

SPECIAL VERDICTS. Act N. M. T. 1889, 88 1, 2, authoris ing special verdicts, and declaring that when the special verdicts are inconsistent with the general verdict the former shall control, is not in conilict with Const. Amend. U. S. art. 7, which provides that the right of trial by jury shall be preserved, and no fact tried by a jury sball be otherwise re examined in any court of the United States than according to the rules of the common law, since such provision applies to powers exercised by the government of the United States, and not to those of states and territories.

Error to district court, Socorro county; A. A. Freeman, Judge.

Action by Margaret E. Walker against the New Mexico & Southern Pacific Railroad Company to recover damages for injury to real property caused by defendant's railroad embankment. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Neill B. Field and James G. Fitch, for plaintiff in error. Henry L. Waldo and W. B. Childers, for defendant in error.

are

particular questions of fact to be stated in writing by the party or parties requesting the same. Sec. 2. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly." Mr. Justice Miller, in his lectures on Constitutional Law, (page 493,) speaking of article 7 of the amendments, says: “This article of the amendments to the constitution

* applies to the powers exercised by the government of the United States, and not to those of the states;" and, as further stated by the same eminent writer, this has been repeatedly decided. Livingston v. Moore, 7 Pet. 469; The Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; Fox v. Ohio, 5 How. 434. Our territorial courts

not constitutional courts, “in which the judicial power conferred by the constitution or the general government can be deposited.” Miller, Const. U. S. p. 369; McAllister v. U. S., 141 U. S. 174, 11 Sup. Ct. Rep. 949; Insurance Co. v. Canter, 1 Pet. 511-546; Clinton V. Englebrecht, 13 Wall. 434. The powers of the territorial legislatures are nearly as extensive as those exercised by state legis. latures. Hornbuckle v. Toombs, 18 Wall. 654. And, indeed, if this article prohibits such legislation by a territory, the prohibition applies equally to state legislation. We are clearly of the opinion that the act of 1889 was passed by the legislature in the legal and constitutional exercise of its powers, and is with us the "law of the land." It might be well to add that we think the act should be so construed as to enable the court, in its discretion, to refuse to submit questions not regarded as material, and, further, to refuse to set aside a verdict if it is possible to reconcile the special findings with the same. It should also refuse to set aside the general verdict unless the special findings upon all the material facts in issue, construed together, cannot be reconciled with it. The judgment below is affirmed.

FALL, J. Plaintiff in error sued defendant for damages for injury to real property caused by defendant's railroad embankment stopping or obstructing natural or artificial channels through which water was accustomed to flow, thereby overflowing and damaging plaintiff's land. General verdict was for plaintiff, but, upon answers to special questions propounded, the court set aside the verdict, and entered judgment for de fendant. Two errors are assigned: (1) That the court erred in entering judgment in favor of the defendant on the verdict of the jury; (2) that the court erred in refusing to enter judgment in favor of plaintiff in error.

If the act of the territorial legislature of 1889 is constitutional, then we can find no error in the action of the court in setting aside the general verdict, and entering judgment upon the special findings. But it is contended strongly that the act referred to is unconstitutional, in that it is in conflict with article 7 of the amendments to the constitution of the United States. The act of 1889 is as follows: "Section 1. In all trials by Jury in the district courts, the court shall, at the request of the parties, or either of them, or their counsel, in addition to the general verdict, direct the jury to find upon

O'BRIEN, C. J., and LEE and SEEDS. JJ., concur.

CUNNINGHAM v. CONKLIN.

CONKLIN v. CUNNINGHAM. (Supreme Court of New Mexico. Aug. 7, 1893.) APPEALS--To WRAT TERM RETURNABLE STRIK

ING CASE FROM CALENDAR.

Comp. Laws, $ 2189, making all appeals taken less than 30 days before the next term of the supreme court returnable to the next succeeding term, is not affected by Act Feb. 24, 1887, as amended by Act Jan. 5, 1889, making it the duty of the clerk, but less than 5 nor more than 10 days before the meeting of the court, to print a calendar of the causes pending; and a case placed on such calendar, when appealed less than the statutory 30 days before the term, will be stricken therefrom on motion.

'Amendments to constitution of the United States, article 7, provides as follows: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

error.

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Appeals from district court, Santa Fe coun- 2. In such an action, defendant may show ty; Edward P. Seeds, Judge.

that plaintiff was only special owner of the Contest between William P. Cunningham sheer, and that he, (defendant,) after driving

them off, returned them to their general owner, and Charles M. Conklin for an office. Motion

and that plaintiff, though knowing that the sheup to strike cases from supreme court calendar were driven to town, went there without at. of current term. Motion sustained.

tempting to regain their possession.

3. Defendant may give evidence in mitiT. B. Catron and Edward L. Bartlett, for gation of damages, under the general issue. appellant. H. L Warren, for appellee.

Seeds, J., dissenting.

Error to district court, Socorro county; A. PER CURIAM. In these cases, which are consolidated for the purposes of the present

A. Freeman, Judge.

Action by Nicodemus Chavez against Luis consideration, appellant has filed a motion to advance, and appellee a motion to strike Huning. Judgment for plaintiff, and defendthem from the calendar of the present term.

ant brings error. Reversed. Section 2189 of the Compiled Laws makes Warren, Fergusson & Bruner, for plaintiff all appeals taken less than 30 days before in error. Neill B. Field, for defendant in the next term of the supreme court re turnable to the next succeeding term. The appeals in these cases were taken less than FALL, J. Plaintiff below, defendant here, 30 days before this term, and were not, by his declaration, seeks to recover for the therefore, returnable to this term, and hence wrongful taking of 3,100 head of sheep by have been improperly placed on the trial defendant, and asks damages in the sum of calendar, and must therefore be stricken $6,000. Defendant below, plaintif here, therefrom. This, of course, disposes of the pleads general issue, and also special pleas of appellant's motion to advance them. The justification and license, upon which pleas act approved February 24, 1887, as amended plaintiff joined issue. Verdict for plaintiff. by the act of January 5, 1889, entitled "An Damages, $4,589.50, being in full for all the act with reference to practice in the su- sheep at $1.25 per head. Plaintiff in error preme court," did not undertake to change assigns many errors, but relles upon failure the return day of appeals taken to this court. of court to instruct upon the question of miti. It made it the duty of the clerk, not less gation of damages upon evidence under the than 5 nor more than 10 days before the general issue, as well as refusal to instruct meeting of the court, to print a calendar upon the special pleas, and as to special inof the causes pending in said court. We terest of defendant in error, and in mitigahold that these cases were not returnable tion of damages under special pleas. to this term of the court, and were not, Evidence was offered tending to show therefore, pending, within the meaning of license, as well as justification; it being inthis act; and the fact that the papers were deed admitted that the sheep of plaintiff and brought to this court more than five days be- defendant had become intermingled, and that fore the beginning of the term, and that defendant drove all the sheep to Los Lunas, the cases were placed by the clerk on the

to separate same, and shear his own; that calendar, did not constitute them "cases

plaintiff was a special owner, Charles W. pending," within the meaning of the act. Lewis being general owner; that plaintiff They had been brought to this court, and

was notified of the driving, went to Los Lufor some purposes may be considered as

nas, but did not attempt to regain his sheep. pending, as, for instance, for the purposes

and refused to have anything to do with of these conflicting motions, but they are not them; but that Lewis, the general owner, pending for trial, for it is impossible to treat

did demand, through his brother and agent, a case as pending for final adjudication at

Jose Lewis, the return of the sheep, and re a term of court prior to the return term.

ceived 1,274 head and some lambs, which he We have not overlooked the importance to

credited to the special owner, defendant be attached to the early disposition of a case

here. The plea of justification and of license, involving title to public office, but the rem

as pleaded specially, were proper pleas, and, edy lies with the legislature, and not with

evidence having been given to sustain these this court. The appellee's motion is sus

pleas, the matter should have been submitted tained, and the causes will be stricken from

to the jury, under proper instructions. 1 the trial docket.

Suth. Dam. 244 et seq.; Dow v. Humbert, 91
U. S. 294; 1 Suth. 255; 2 Hil. Torts, 83, 84,

86; 1 Add. Torts, $$ 529, 531, 536.
HUNING v. CHAVEZ.

Evidence in mitigation of damages could (Supreme Court of New Mexico. Aug. 14, not only be given under the special pleas, 1893.)

but also under the general issue, and is a TRESPASS DE BONIS ASPORTATIS–EVIDENCE-JUS- proper subject for consideration for the jury;

TIFICATION-MITIGATION OF DAMAGES. and, it having been shown that the sheep had

1. In an action for driving to town sheep which had become mingled with defendant's, jury to say, upon the evidence, whether the

become intermingled, it was proper for the the latter may show that he was justified in so driving the sheep to town, in order to separate

defendant was justified in driving the sheep them before shearing his own.

to Los Lunas to separate them, and also as

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