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fore review the situation, as recited, as that which was before the district court. Simard personally and physically desisted from interference with the hay after service upon him of the writ of injunction, but did he not obtain to be done that which he did not personally do? The district court proceeded upon the ground that he did. The 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 La Casse was very close. Simard knew that Hanratty and Tillman claimed title to the ground by purchase from the railroad company. He recognized that claim when he contracted to cut the hay for them. After agreeing to cut the hay for them, he purported to sell the grass to Asselin and La Casse, and agreed to cut it for them. Then afterwards, at the service of the writ, he said that it was his own, and he was going to have it. If his position was only that of a servant of Asselin and La Casse, he contradicted his claim to that relation when, at the time of the service of the writ, he claimed the hay himself. If he were only a servant, he had no interest in the hay, or its disposition, after he had informed his alleged master of the service of the writ. But we find him going to Missoula with Asselin to consult lawyers, whom he describes as "our lawyers." He says to Asselin: "From what our lawyers say, you had better go ahead and cut the hay." So we find Simard recognizing the Hanratty and Tillman title on one day, and agreeing to cut the hay for them. Very soon afterwards he is selling the hay to Asselin and La Casse, and agreeing to cut it for them. Next we find him claiming the hay himself. Then, in company with Asselin, he is consulting "their lawyers," and he suggests to Asselin that he, Asselin, had better go ahead and cut the hay.

We are of opinion that the district court exercised a sound discretion if it concluded that Simard, under the showing made, had a very lively personal interest in the hay. All the circumstances together indicate this. Although the claim is made that Simard was only the servant of Asselin and La Casse, yet we believe that the district court was justified in its conclusion that Simard disobeyed the injunction by advising or procuring Asselin and La Casse to do the prohibited act. It is said by the New York court of appeals "that injunction orders must be fairly and honestly obeyed, and not defeated by subterfuges and tricks on the part of those bound to obey them; that they might be violated by aiding, countenancing, abetting others in violation thereof, as well as doing it directly; and that courts would not look with indulgence upon schemes, however skillfully devised, designed to thwart its orders." People v. Pendleton, 64 N. Y.

622. We are therefore of opinion that the writ of certiorari should be denied, and it is so ordered.

HARWOOD, J., concurs.

PEMBERTON, C. J., did not sit in the hearing of this case.

MONTOYA DE ANTONIO ▼. MILLER. (Supreme Court of New Mexico. Aug. 26, 1893.) DEVISE PAYABLE ON "BECOMING OF AGE"-RIGHT TO SHARE ON MARRIAGE.

1. Testator devised the residue of his estate to executors named, in trust for the edu cation and maintenance of two minor children, and directed that, as and when they "become of legal age," the shares shall be turned over to them, and, if either shall die before "be coming of age," the share of such deceased child shall go to the survivor. Held that, in the absence of a statute providing otherwise, such devisees were not entitled to their respective shares on his or her marriage before arriving at the age of 21 years.

2. Comp. Laws 1884, § 1024, which provides that "the guardianship over men and women shall cease with their marriage," does not entitle such devisees to receive their share on marrying.

Freeman, J., dissenting.

Appeal from district court, Bernalillo county; William D. Lee, Judge.

Action by Lola Montoya de Antonio against J. W. Miller, as executor and trustee under the will of William Kanzenbach, to recover plaintiff's share of property devised to defendant in trust for her and another. From a judgment for plaintiff, defendant appeals. Reversed.

Bernard S. Rodey, for appellant. William H. Whiteman, for appellee.

O'BRIEN, C. J. William Kanzenbach died testate, declaring in a clause of his last will and testament as follows: "All the residue of my estate, real, personal, and mixed, I give, devise, and bequeath to Lola Montoya and Eduardo Montoya, children of Anastasia Montoya, of Cabezon, New Mexico, the same to be held by my executors hereinafter appointed, in trust for the education and maintenance of said children; and, as and when they become of legal age, the share of each to be turned over to them, and, if either of said children shall die before becoming of age, the share of such deceased child shall go to the survivor of them." After the death of the testator, and on the 9th day of February, 1891, Lola, one of said legatees, with the consent of her mother, married Doraingo de Antonio. She was then 16 years and nearly 4 months old. J. W. Miller, the appellant, was one of the testamentary trustees, and he only qualified, and as such was appointed by the probate court

of Bernalillo county. After Lola's marriage she demanded her share of the estate of the appellant, and, upon his refusal to comply, she applied to the probate court for an order requiring him to do so. Tuis order she secured, from which the appellant, Miller, in his fiduciary capacity or as guardian, appealed to the district court, where the judgment of the probate court was affirmed. From the latter judgment Miller brought the present appeal to this court.

The only question presented for determination on this appeal is, did the appellee upon her marriage become of legal age, so as to be entitled to receive, by the terms of the will, her portion of the estate? It is not claimed that other parts of the will throw any light upon the clause cited, or indicate any special meaning to be given to the phrase "legal age," as employed by the testator. Do the words as here used mean full or partial legal age? If the former, the common law fixes the beginning of such period on the day preceding the twenty-first | anniversary of birth, and the same has not been changed by any statute of this territory; if the latter, a person may be of legal age for certain purposes before arriving at the age of 21 years, both at the common law and under the statutes. In arriving at a conclusion the testator's meaning should control. The property was his, and he had a right to say how and when his legatees should take it. Our duty is to carry into effect the intention of the testator. If he meant by the words employed that the appellant should hold the moiety of the property in trust for the benefit of Lola until she arrived at the age of 21 years, her marriage before her arrival at that age would not entitle her to its custody or control. But, if he had so intended, would he not have written in his will, until she "arrives at lawful age, or marries?" In suits growing out of wills the terms "of age" and "of lawful age" have frequently been construed by the courts, and almost uniformly, as meaning 21 years. Minority ceases when one becomes "of age" or of lawful age," and not before; and marriage cannot change that status in the absence of statutory enactment. We must presume, when no contrary intent is apparent, that the testator used the words in their ordinary meaning. Section 1024, Comp. Laws 1884, providing that "the guardianship over men and women shall cease with their marriage," has reference to personal control, but does not purport to declare them of legal age. Guardianship of the person is absolutely inconsistent with the conjugal rights of husband and wife. But that statutory declaration does not mean that a married man of 20 years of age may vote or hold office, or that a woman married before reaching her majority has the period of her legal minority diminished. The common expressions "under age" and "over age" are not ambiguous, and

always refer to the period of 21 years, unless in states where women, by statutory enactment, reach majority before that period. It is not claimed that such change has ever been expressly made in this territory.

It is held by the supreme court of the state of Ohio, construing a will containing this provision: "In the third place, it is my wish and desire that the property may be kept together until my youngest child shall become of age, and to make use of it to the best advantage for supporting and educating my children; and, at the time the youngest shall become of age, the property shall then be disposed of and divided equally among my children," (the testator's wife was about 50 years old, and of his 8 children the youngest was then under 7,)—that the estate left the wife by another provision did not determine till the youngest child had attained the age of 21 years. Howe v. Fuller, 19 Ohio, 51. And in a case in the state of Virginia, where the testator, after directing that his estate should be equally divided among his seven children, added: "It is my will and desire that if any of my children die before they attain to legal age, or without a lawful heir, in either case that all such property as they may receive in the division of my property return to my surviving children or their lawful heirs,”-it was held that the limitation over took effect upon the happening of either contingency, and that upon the death of one under age, etc., his share vested in the survivors. Brooke v. Croxton, 2 Grat. 506. The case of McKim v. Handy, decided by the high court of chancery of Maryland in 1849, (4 Md. Ch. 236,) is not in conflict with the views herein expressed. The chancellor, in delivering the opinion of the court, says: "It is insisted by certain of the parties having an interest in the question that the terms 'lawful age,' as used in the will, mean the full age of twenty-one years; and, as the bequest was contingent upon the legatee attaining that age, it never vested, but sunk in the residuum for the benefit of those entitled thereto. That the minority of females, as well as males, continues until twenty-one at common law, is too clear for dispute, and I do not understand that there is anything in our legislation which abridges the period to every intent and purpose, though we have several acts of assembly which confer capacities upon females under twenty-one, which they would be otherwise incompetent to exert. Thus the act of 1798, etc., limits the period to which guardians may be appointed by the orphans' court to a female infant to the age of sixteen years or marriage, when the guardianship ceases, and the ward or husband, as the case may be, is entitled to receive from the guardian her property. The act of 1829 (chapter 216, § 5) declares that the guardianship of females shall continue to the age of eighteen or marriage, and the 6th and

7th sections of the same act require the guardian, upon her attaining that age, to deliver her property to her, and gives to her receipt or release, executed before the orphans' court, the same effect precisely as if she were of the full age of twenty-one years. There can be no doubt, therefore, that a female at the age of eighteen years is entitled to receive her property of her guardian, and may release and acquit him in respect thereof; but still, it is said, her legal minority does not cease until she is twenty-one years of age, and it is very clear, I think, that for many purposes it does not. We are, however, construing a will, and the question is, what did the testator intend by the term lawful age? Did he not mean that age at which his female grandchildren would be entitled by law to receive their estates from their guardian? My opinion is he did so mean, and, if he did, of course his intention must prevail, although for many purposes the legal minority of the legatee does not terminate until she attains the full age of twenty-one years." The chancellor continues: "The language of the will is that the trustees shall, out of the funds provided for the purpose, pay to each of the grandchildren, born and to be born, the sum of one thousand dollars, if they live to attain lawful age. Lawful age for what? Why, lawful age to receive; that age at which they are, according to our legislative enactment, entitled to demand and receive from their guardians all the property, and to give valid releases therefor." It is manifest that the conclusion reached is based upon the peculiar statutory enactments of that state. Under them a girl of 18 years has a right to demand her property of its legal custodian, and to execute valid releases therefor. Under our laws she has no such right. The statutory declaration that "the guardianship over men and women shall cease with their marriage" cannot, by the most strained construction, receive any such interpretation. Release from the legal guardianship of one's person does not imply the duty of a trustee to surrender, or of a married female minor to demand from such trustee, a legacy intrusted to his care and control, for delivery to beneficiaries as soon as they severally attain lawful age. If Lola has such right, why not her brother, Eduardo, if he marry during his minority? If such were the testator's intention, why did he not so express it in his will, by adding after the words "of lawful age" "or marry?" Plainly he meant what he wrote, and he wrote exactly what he intended. That intention we must respect. No legal enactments existed in this territory that could warrant the testator in assuming, as the Mary

land testator was warranted in assuming, that the legatee could legally receive or receipt for the trust fund before arriving at the full age of 21 years. Should she die before attaining legal age, her brother is, by the express terms of the will, entitled to the residue of the entire legacy. That contingency is possible. We cannot adopt such construction of the plain, unequivocal language of the will as would defeat, in such event, the provident and generous intentions of the testator.

The question of guardianship does not properly arise under this will. The estate is granted to the two children, share and share alike, to be held in trust by the executor for their support and education during minority; one-half thereof to be delivered to her and him "as and when" each attains full legal age, and, if either die before "coming of age," the survivor to take his or her share. It is as executor, and not as

guardian, that Miller received the trust. His qualification as guardian, and erroneously holding or dealing with the trust fund as such, cannot change the terms of the will under which he received it. The last clause of that instrument indicates the nature of his office, and reads as follows: "I hereby appoint Rudolph Habaland, &c., and John Miller, &c., executors of this will, and request that the probate court allow them to qualify without giving bond or security. If either one shall not qualify, the other may act alone." Habaland did not qualify. The reading of this, in connection with the granting clause before cited, shows that this appellant, by the plain terms of the will, holds the estate in trust as executor, and not as guardian. We do not express any opinion as to what our decision would be were this appellant a mere guardian, holding, as such, the property of his ward after marriage. We simply determine the rights and duties of appellant and appellee as fixed by the will. The rule adopted in the McKim Case is not in conflict with these views. By the laws of Maryland a female arrives at "legal age," for certain purposes, when 18 years. One of such purposes is the reception of a legacy. The court in that case accordingly held that where a legacy was given to a female child, if she lived to attain "lawful age," such female was entitled to receive the same as soon as she attained the age of 18 years. There is no such law in this territory. Hence the judgment of the court below, so far as it requires appellant to pay over to appellee her moiety of the trust fund, or to disturb him in the due execution of such trust, is reversed.

FALL and SEEDS, JJ, concur. FREE MAN, J., dissents.

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

1893.)

CONSTITUTIONAL LAW RIGHT TO JURY TRIAL SPECIAL VERDICTS.

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 accord

Act N. M. T. 1889, §§ 1, 2, authorizingly." Mr. Justice Miller, in his lectures ing special verdicts, and declaring that when the special verdicts are inconsistent with the general verdict the former shall control, is not in conflict 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 shall 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.

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 defendant. 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 judg ment 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

'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."

Liv

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. ingston 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 are 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 legislatures. 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.

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CUNNINGHAM ▼. CONKLIN. CONKLIN v. CUNNINGHAM. (Supreme Court of New Mexico. Aug. 7, 1893.) APPEALS TO WHAT 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, not 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.

Appeals from district court, Santa Fe county; Edward P. Seeds, Judge.

Contest between William P. Cunningham and Charles M. Conklin for an office. Motion to strike cases from supreme court calendar of current term. Motion sustained.

T. B. Catron and Edward L. Bartlett, for appellant. H. L. Warren, for appellee.

PER CURIAM. In these cases, which are consolidated for the purposes of the present consideration, appellant has filed a motion to advance, and appellee a motion to strike them from the calendar of the present term. Section 2189 of the Compiled Laws makes all appeals taken less than 30 days before the next term of the supreme court returnable to the next succeeding term. The appeals in these cases were taken less than 30 days before this term, and were not, therefore, returnable to this term, and hence have been improperly placed on the trial calendar, and must therefore be stricken therefrom. This, of course, disposes of the appellant's motion to advance them. The act approved February 24, 1887, as amended by the act of January 5, 1889, entitled "An act with reference to practice in the supreme court," did not undertake to change the return day of appeals taken to this court. It made it the duty of the clerk, not less than 5 nor more than 10 days before the meeting of the court, to print a calendar of the causes pending in said court. We hold that these cases were not returnable to this term of the court, and were not, therefore, pending, within the meaning of this act; and the fact that the papers were brought to this court more than five days before the beginning of the term, and that the cases were placed by the clerk on the calendar, did not constitute them "cases pending," within the meaning of the act. They had been brought to this court, and for some purposes may be considered as pending, as, for instance, for the purposes of these conflicting motions, but they are not pending for trial, for it is impossible to treat a case as pending for final adjudication at a term of court prior to the return term. We have not overlooked the importance to be attached to the early disposition of a case involving title to public office, but the remedy lies with the legislature, and not with this court. The appellee's motion is sustained, and the causes will be stricken from the trial docket.

HUNING v. CHAVEZ. (Supreme Court of New Mexico. Aug. 14,

1893.)

TRESPASS DE BONIS ASPORTATIS-EVIDENCE-JUSTIFICATION-MITIGATION OF DAMAGES.

1. In an action for driving to town sheep which had become mingled with defendant's, the latter may show that he was justified in so driving the sheep to town, in order to separate them before shearing his own.

2. In such an action, defendant may show that plaintiff was only special owner of the sheep, and that he, (defendant,) after driving them off, returned them to their general owner, and that plaintiff, though knowing that the sheep were driven to town, went there without attempting to regain their possession.

3. Defendant may give evidence in mitigation of damages, under the general issue. Seeds, J., dissenting.

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

Action by Nicodemus Chavez against Luis Huning. Judgment for plaintiff, and defendant brings error. Reversed.

Warren, Fergusson & Bruner, for plaintiff in error. Neill B. Field, for defendant in

error.

FALL, J. Plaintiff below, defendant here, by his declaration, seeks to recover for the wrongful taking of 3,100 head of sheep by defendant, and asks damages in the sum of $6,000. Defendant below, plaintiff here, pleads general issue, and also special pleas of justification and license, upon which pleas plaintiff joined issue. Verdict for plaintiff. Damages, $4,589.50, being in full for all the sheep at $1.25 per head. Plaintiff in error assigns many errors, but relies upon failure of court to instruct upon the question of mitigation of damages upon evidence under the general issue, as well as refusal to instruct upon the special pleas, and as to special interest of defendant in error, and in mitigation of damages under special pleas.

Evidence was offered tending to show license, as well as justification; it being indeed admitted that the sheep of plaintiff and defendant had become intermingled, and that defendant drove all the sheep to Los Lunas, to separate same, and shear his own; that plaintiff was a special owner, Charles W. Lewis being general owner; that plaintiff was notified of the driving, went to Los Lunas, but did not attempt to regain his sheep, and refused to have anything to do with them; but that Lewis, the general owner, did demand, through his brother and agent, Jose Lewis, the return of the sheep, and received 1,274 head and some lambs, which he credited to the special owner, defendant here. The plea of justification and of license, as pleaded specially, were proper pleas, and, evidence having been given to sustain these pleas, the matter should have been submitted to the jury, under proper instructions. 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.

1

Evidence in mitigation of damages could not only be given under the special pleas, but also under the general issue, and is a proper subject for consideration for the jury; and, it having been shown that the sheep had become intermingled, it was proper for the jury to say, upon the evidence, whether the defendant was justified in driving the sheep to Los Lunas to separate them, and also as

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