CONTRACT NOT TO BE PERFORMED WITHIN A YEAR.

NEW YORK COMMON PLEAS, JUNE 6, 1881.

LEVISON V. STIX.

On the 31st day of December, 1879, plaintiff was by verbal contract engaged to serve defendant as clerk for one year, which year should terminate December 31, 1880. Held, that the contract was not to be performed within a year, and was void by the statute of frauds.

A

CTION for breach of contract. The plaintiff was by verbal contract, made on the 31st of December, 1879, engaged by defendant as a clerk for the term of one year, which year was to end December 31, 1880. before the expiration of this time defendant discharged plaintiff from his employment, without cause, as it was alleged. From a judgment in favor of plaintiff defendant appealed.

William Strause, for appellant.

Morris S. Wise, for respondent.

PER CURIAM. In support of the position claimed upon the part of the respondent are cited the cases of Marvin v. Marvin, 75 N. Y. 242; Kent v. Kent, 62 id. 560; Smith v. Conlon, 19 Hun, 236; and certain other cases, holding that where an act is not to be done until a certain length of time has elapsed, that the day upon which the time is set running is to be excluded in the computation of time.

The case of Marvin v. Marvin simply decides that where an act is to be done after the expiring of four days from the filing of a decision, the day of the filing of the decision must be excluded, because four full calendar days must elapse after the filing of the decision, before the act contemplated can be done; and that was all that was decided in that case.

In the case of Kent v. Kent, the principle is recognized which was asserted in the case of Boydell v. Drummond, 11 East, 141, that a contract which may by its terms be performed within a year is not within the statute of frauds, but where the agreement by its terms is not to be performed within one year, it is within the statute of frauds. To the same effect is the case of Smith v. Conlon, and in that case the various decisions of this State seem to be carefully collated, which established the proposition above mentioned.

It is clear that the employment in the case in question was not to commence until the 1st of January, 1880, and upon precisely such a state of facts in the case of Cawthors v. Carden, 13 C, B. (N. S.) 406, it was decided that the contract was within the statute. In that case it was held that a contract entered into on the 24th to serve for twelve months, commencing on the 25th, is within the statute; and the case of Bracegirdle v. Heald, 1 Barn. & Ad. 722, is there cited, in which it was held that a contract for a year's service, to commence at a subsequent day, being a contract not to be performed within a year is within the statute of frauds.

In fact it is impossible to see, if the term of service is to commence at any time subsequent to the time of making the contract, and the contract is for a full year, how it is possible that it should be performed within a year.

It is undoubtedly the intention of the statute to require all contracts which are not to be performed within the year from the time of making shall be in writing, and in order that they shall be completed within the year it is absolutely necessary that the time of making and the year of performance must be within the same year; and if the time of making is to be excluded and the time of performance is to be a full year,

the contract cannot be performed within the year within which it was made.

The judgment in this case must be reversed.

Note. See contra, Dickson v. Frisbee, 52 Ala. 165; 23 Am. Rep. 565.

RIPARIAN OWNERS ALONG A CANAL.

WISCONSIN SUPREME COURT, MAY 10, 1881.

LAWSON V. Mowry.

While by the law of this State one who should receive from the owner of land, through which a canal passes, a deed of a lot abutting upon such canal, which is a public highway, would ordinarily take to the center of the canal, yet he would take no right, as against the other riparian owners, to draw off the waters of the canal through his lot to a level lower than that of any part of the canal on his premises, for the purpose of creating a water-power.

In this case a canal and a lock at its foot and a dam (in a natural stream above it) by which the water was turned into it, were constructed at great expense by the original owners of the land, under authority of the Legislature, for the purpose of creating a hydraulic power as well as high. way, and the lots between the canal and the natural stream below the dam were sold for a trifling consideration, without any expressed grant of water-power in the deeds, and the lots as platted were not intended to extend to the canal (though this was subsequently enlarged, so that the lots in fact abutted upon it), and separate leases of the power were taken from the grantors by the grantees of the lots, and the rents continued to be paid for many years, and the lessors, with knowledge of the lessees, during that time went to great expense in maintaining the dams, etc. Held, that a lessee could not resist payment of the rent under his lease, on the ground that he had a right to the water as a riparian owner, and took his lease under a mistake as to his legal rights.

ACTION for rent of water-power. The facts suffi

ciently appear in the opinion. Moses Hooper, for plaintiff.

C. W. Felker, for defendant.

CASSODAY, J. There is no dispute but what Mowry was the owner and in possession of lots 21 and 22, and also lots 25 and 26, at the time of making the leases in question. It is urged with much force in his behalf that as the south water line of the canal, as completed, was at or nearly coincident with the north line of his lots, as found by the court, he took title, by virtue of the lots, not only to the center of the river, but also to the center of the canal, and therefore had the legal right, as riparian owner, independent of the leases, to draw from the canal, through his lots, into the river, the amount of water mentioned in the leases for the purposes therein designated, and hence that his covenants and agreements therein to pay water rent were wholly without consideration. It is true the court found that when Doty and Reed built the dam and dug the first race and made the plat, they intended to secure the location of the canal for navigation, specified in the existing acts of Congress on the strip marked "reserved," and also to secure a hydraulic power to be used on the lots along between the canal and the river; but it was also found that practically there was no fall in the canal or river on or against these lots, but that the hydraulic power was produced by the dam at the head of the canal, and that the level of the canal was about ten feet above the level of the river at these lots. The lots themselves were disposed of by Doty for a mere trifling consideration. Doty and Reed had themselves expended about $30,000 in building the dam, raceway, and basin near the foot of the canal, and the improvement company several thousand more. It was only the surplus water not needed for navigation that could be taken from the canal, through bulk-heads and

flumes, and used for hydraulic purposes, and then discharged into the river. It is obvious that it was the dam, canal, and lock at the mouth of it, altogether as a whole, which created the water-power and artificial channel for navigation. It was essential also that each and every part should be in good repair, in order to secure surplus water not needed for navigation anywhere along the line.

If Mowry, as riparian owner of the four lots in question and independent of the leases, could divert a portion of the water from the canal into the river by means of artificial channels cut through these lots, and use the power created by the fall while passing for propelling machinery, then it necessarily follows that the respective owners of each of the other thirty lots would have a similar right, to say nothing of the owners of lots lying between the canal and river northwesterly of lot 34, or owners of lands abutting upon the northerly side of the canal. If such lot-owners each had such right, then what was the extent of it? Of course, the right would necessarily be limited to the surplus water not needed for navigation. But even then the exercise of it by some would to that extent impair the exercise of it by others. Of course, such surplus water could be apportioned between such owners severally; but as water, like air, is a constantly moving element, it would seem to require covenants or agreements to regulate the respective rights of parties. But if the right to turn the waters from the canal into the river by such artificial channels is derived solely from such riparian ownership, then upon what theory could one of such owners restrict any of the others in the exercise of a right which he claimed for himself?

It is conceded upon both sides that no one has any property in any of the particles of water, as such, and hence there could be no partition of it by reason merely of the ownership of lots. It is the use of water while passing that gives it value. If its passage at a given point is by a level plane, then is its use at that point to be confined to the purposes for which it is adapted while in that condition-as, for instance, navigationor may a fall be created by an artificial channel? Were it conceded that the lots extend not only to the center of the river, but also to the center of the canal, and that Mowry had all the rights in the canal and its water of any riparian owner, then, undoubtedly, he would have the right to use the land in any way compatible with the use of the canal for navigation, provided he did not abridge corresponding rights of other riparian owners. Walker v. Shepardson, 4 Wis. 486; Greene v. Nunnemacher, 36 id. 50; Delaplaine v. Ry., 42 id. 214; Diedrich v. Ry., id. 248. But would he, as such riparian owner, have the right, by means of an artificial channel through his own lot, to create a water-fall by turning the waters of the canal through the same into the river? Can a person owning land from one stream to another rightfully turn the waters of the one having the greatest altitude into the other by means of an artificial channel through his own land? In Sampson v. Hoddinott, 87 Eng. Com. L. 590, it was held that the detention of water in that case by one of several riparian owners, for irrigation, was such that an action would lie for the injury, and that every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of the proprietors above or below him on the stream.

In Wilts & Berks Canal Nav. Co. v. Swindon Waterworks Co., L. R., 9 Ch. App. Cas. 451, a canal company, having power to supply their canal with water from the neighboring streams, bought a mill, and turned the mill-stream into the canal. Many years after the water-works company diverted part of the mill-stream, and thereby supplied with water a neighboring town; and it was held that the canal company * * * were

riparian proprietors, and had power to prevent the unlawful use of the water by other riparian proprietors, and that the supply of a neighboring town was such unlawful use." It was also there held that the canal company might sell surplus water. The doctrine of that case was approved on appeal, although the decree was modified. L. R., 7 H. L. 697; S. C., 14 Moak, 86. In Miner v. Gilmore, 12 Moore's P. C. C. 156, Lord Kingsdown stated the law thus: "Every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land." He also has the "right to the use of it for any purpose, * * * provided that he does not thereby interfere with the rights of other proprietors, either above or below him. * * He has no right to interrupt the regular flow of the stream, if he thereby interfere with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury."

In McCalmount v. Whitaker, 3 Rawle, 90, Gibson, C. J., thus tersely states the rule: "The water-power to which a riparian owner is entitled consists of the fall in the stream when in its natural state as it passes through his land or along the boundary of it; or in other words, it consists of the difference of level between the surface where the stream first touches his land and the surface where it leaves it." And this was sanctioned in Brown v. Bush, 45 Penn. St. 66.

In Miller v. Miller, 9 id. 74, it was held that "a supra-riparian owner is liable to the owner of the land below him for every material diminution of the flow of the water by a diversion from the stream, whether for irrigation or other purposes; and this, though no actual injury may have been suffered." To the same effect are Tyler v. Wilkinson, 4 Mason, 397; Webb v. Co., 3 Sumu. 189; Mayor v. Appold, 42 Md. 442; Tillotson v. Smith, 32 N. H. 90; Parker v. Griswold, 17 Conn. 288; Harding v. Water Co., 41 id. 87; Gleason v. Co., 101 Mass. 72; Van Hoesen v. Coventry, 10 Barb. 518; Clinton v. Myers, 46 N. Y. 511.

No case has been cited which would seem to authorize Mowry to tap the canal, merely because his land was contiguous thereto; but on the contrary, the authorities cited above seem to indicate pretty clearly that even if he had the rights of a riparian owner in the canal, yet that they would not have authorized him to divert the waters therefrom by means of an artificial channel through his lots to the injury of other riparian owners above or below. It was the Legislature which gave the authority to obstruct the channel of the river by the building of the dam and canal, and to make use of the water-power thereby created for navigation, and the surplus for hydraulic purposes. The water-power thus created by the dam was not necessarily confined to the use of it at the dam. It is common to conduct water from a pond created by a dam by means of artificial channels, in order to make available the increase of the head by reason of the additional fall in the bed of the stream below the dam. The embankment or land between such artificial channel and the bed of the stream is nevertheless as necessary to preserve the water-power as the dam itself. It is in effect nothing less than a wing of the dam. The canal, down as far as the lock, is in effect nothing less than an enlargement or arm of the pond created by the dam. It is the fall of the water which gives the power, and the power which gives the value for hydraulic purposes. The right to create and maintain the power, as well as the canal, was authorized by legislative grant to Doty, Reeds, and their associates, and to be rightfully enjoyed by others it must be derived from them, or some of them.

By means of the dam, canal, embankment, and lock, the power derived from the surplus water could be made available at the lots in question by means of an artificial channel; but the right to create such channel and use such power at the lots was not derived exclu

sively from the ownership of the lots themselves, but reached back to the authority to create and maintain the dam, canal and lock and to use the surplus water for hydraulic purposes. Any other theory would leave the owner of every dam and water-power to the mercy of every person owning land from the pond above the dam around the same to the river below, and through which an artificial channel could be cut. It would take from the dam, and the water-power created by it, much of its value, and transfer it, without consideration, to lands in the vicinity. The right given by deed to draw water from a water-power and use it in propelling machinery, without designating the particular land upon which it shall be used, has frequently been recognized by this and other courts. Such right, as acquired by deed or grant, reaches back to the dam, and gives an interest in the power thereby created. Smith v. Ford, 48 Wis. 162-6; Spenseley v. Valentine, 34 id. 154; Wooliscroft v. Norton, 15 id. 198; Noonan v. Orton, 4 id. 336; Crittenden v. Field, 8 Gray, 621; Whittier v. Co., 9 N. H. 454.

But here the lots of Mowry, as platted, were not intended to extend to the canal. Plat G shows a vacant strip between them and the lands marked "Reserved," and plat H shows a vacant strip between the lots and the canal. It is very evident from the record that neither Mowry nor any one else had any conception that the mere ownership of the lots gave him any right to draw water from the canal until quite recently. In fact, the gist of the defense is that he was mistaken as to his legal rights until recently. To acquire the right to draw water from the canal and use it in propelling machinery, and then discharge the same into the river below the dam, he procured the leases in question. By executing the leases he acknowledged that the lessors then had the property, rights and privileges thereby

water and privileges, and to maintain and keep in repair all flumes, races, bulk-heads, waste-weirs, and other erections for the use of the water; and the improvement company thereby granted to them, their heirs and assigns, all their right and claim then present or prospective in said water-power, and the use thereof at Menasha, and the sole right to use, lease, sell or dispose of all the surplus water to be taken from the dam or any point on the canal. The property, rights and privileges thus designated as belonging to Doty and the Reeds, including the leases in question, became transferred to the plaintiff, Lawson, in the winter of 1875-6, as found by the court, and there would seem to be no reason why he should not recover in this action. The judgment of the county court is affirmed.

PROBATE OF SEPARATE WRITING REFERRED TO IN WILL.

MASSACHUSETTS SUPREME JUDICIAL COURT, JAN. 17, 1881.

NEWTON V. SEAMAN'S FRIEND SOCIETY.*

If a will, duly executed and witnessed, incorporates in itself by reference a paper not so executed and witnessed, containing directions as to the disposition of the testator's estate, such paper, if in existence at the date of the will and clearly identified as the paper referred to, is a part of the will, and should be admitted to probate as such. The Probate Court, after admitting a will to probate, and after the time for appealing from the decree has passed, may admit to probate a paper referred to in the will, and which in law forms part of it, and which by mistake was not presented to the court when the will was admitted to probate.

of estoppel, applicable in such cases, it is urged that Mowry was mistaken in his legal rights. But we are unable to discover any such mistake, and the long time which elapsed between the making of the leases and the alleged discovery of the mistake, in a matter so valuable to himself, seems to very much weaken the importance of the alleged discovery. It is manifest, not only from the nature and character of the property, its surroundings, and the plats in evidence, but also from the leases themselves, that by the mere conveyance of the lots by their numbers, there was no intention to transfer to the grantee the valuable water rights afterward stipulated for by the leases. The intent in such cases, where it is not precluded by the express words of the grant, is always an important subject of inquiry.

In Bradford v. Cressey, 45 Me. 13, Rice, J., said: "The intention of the party is always to be sought in the interpretation of deeds, as in other written instruments. If the language leaves that intention at all doubtful, the instrument should be examined and construed, when practicable, by the light of the circumstances which surrounded and were connected with the execution of the instrument.” See Mott v. Mott, 68 N.Y. 246; Babcock v. Utter, 1 Keyes, 115, 397; Hatch v. Dwight, 17 Mass. 289. Construing the conveyance of the lots in question for the trifling consideration named in the light of the circumstances which surrounded and were connected with their execution, and the intent of the grantors and grantee therein, clearly appears to be just what, not only Doty and the Reeds, but Mowry, in effect declared it to be in the execution of the leases, to wit, a simple conveyance of the lots, without any intent to grant any right or privilege in the dam, water-power, or canal. As stated, Doty and the Reeds had granted to the improvement company the right of way for the canal, and the right to maintain the same, and all their right, title, and interest in the dam-subject, however, to their right to use the surplus

mitting to probate a book as part of the will of Alexander De Witt.

On February 4, 1879, his will and four codicils were admitted to probate, and William Newton and Charles A. Angell were appointed executors. On June 3, 1879, they presented a petition to the judge of probate, setting forth that the second clause of the third codicil of the will was as follows: “I revoke that part of my will which gives directions for the payment of my legacies, and order and direct my executors or the survivor of them to pay the several legacies mentioned in my wills and codicils, as near as possibly convenient, according to the directions written in a book by Melvin W. Pierce, signed by me, Alexander De Witt, and witnessed by said Melvin W. Pierce; " that the petitioners had the book referred to in their possession, but did not offer it for probate with the will because they did not think it necessary to have it admitted to probate; that the book filed with the petition was the book referred to in said codicil, and was in existence at the time of the making of said codicil; and praying that the same might be admitted to probate as part of the will of Alexander De Witt.

On this petition, after due notice to all parties interested, the judge of probate ordered a decree to be entered, which, after recitiug that it appeared that a part of the directions in said book, to wit, the writing on the cover and on certain specified pages thereof, with the exception of certain specified words and figures on two of those pages, were a part of the will of the deceased, namely, of the third codicil thereto, and that the same, being written and signed by the deceased and witnessed by Melvin W. Pierce at the time of the execution of said codicil, was legally executed, ordered that the aforesaid parts of the book, and the directions written therein and signed by the deceased, be allowed as part of the third codicil and of the last will of the deceased.

*To appear in 130 Massachusetts Reports.

From this decree two of the legatees appealed to this court, assigning as reasons of appeal that the book was not a part of the will and codicils; and that it was offered for probate too late.

At the hearing of the appeal the parties agreed that the facts set forth in the petition of the executors were true; and that the only other facts material to the determination of the case were as follows: On the cover of the book were written the following words, signed by the testator, and witnessed by Melvin W. Pierce: "Directions to my executors in the way and manner I wish all the legacies to be paid as near as possibly convenient. Should I dispose of any of the property herein named before my decease, I order and direct my executors to make up the legacies in stocks or other securities or cash, as they may think best." The book contained several pages of instructions as to paying, in specific property, legacies given in the will and codicils, comprising twelve classes or divisions of instruction, each division being signed by the testator and witnessed by Pierce. The book further contained two entries, by way of marginal note and interlineation by the testator after the execution of the third codicil, which consisted of the words and figures excepted in the decree of the Probate Court; and also a list of property not disposed of on the testator's eightieth birthday, at the end of the book and wholly distinct from the instructions, which was not offered for probate nor mentioned in that decree. With these excep

tions, the whole book was admitted to probate in the court below, and was in its present form at the times of the making of the codicil and of the testator's death.

The case was reserved by Gray, C. J., at the request of both parties, for the consideration of the full court, and for the entry of such decree as law and justice might require.

W. W. Rice & S. Haynes, for appellants.

W. S. B. Hopkins, for appellees.

GRAY, C. J. If a will, executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper referred to be in the form of a will or codicil, or of a deed or indenture, or of a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and should be admitted to probate as such. Allen v. Maddock, 11 Moore P. C. 427; Singleton v. Tomlinson, 3 App. Cas. 404; Jackson v. Babcock, 12 Johns. 389; Tonnele v. Hall, 4 Comst. 140; Chambers v. McDaniel, 6 Ired. 226; Beall v. Cunningham, 3 B. Monr. 390; Harvy v. Choutean, 14 Mo. 587.

In Loring v. Sumner, 23 Pick. 98, 102, Mr. Justice Morton said, "There is no doubt that a valid bequest or devise may be made by reference to objects and documents not incorporated in or annexed to the will." In that case the will contained this clause: "I have given to my son, Nathaniel Loring, Jr., one thousand dollars by note for his full part of my estate." It was held that this was a valid legacy of the sum of $1,000, although the note had no validity as a note, for want of consideration, and had not been made with any testamentary intent. It is true that the amount of the legacy there appeared on the face of the will. But in Wilbar v. Smith, 5 Allen, 194, this feature was wanting; the testator, having signed and delivered to four of his children respectively promissory notes which were without consideration and ineffectual as gifts mortis causa, on the same day made his will, by which, after various pecuniary legacies to other children and grandchildren, he gave to the four children "an equal proportion with" the others, "each to have in the same

proportion as I give in this will, together with the notes of this date to" the four children; and it was held that the four took specific legacies of the amounts of the notes. And in Thayer v. Wellington, 9 Allen, 283, 292, it was said by the court, A testator may refer expressly to a paper already executed, and describe it with such particularity as to incorporate it virtually in to the will, or he may refer to deeds or other instruments, or monuments, or existing facts, to which reference may be had in construing his will."

In Allen v. Maddock, above cited, a codicil headed, "This is a codicil to my last will and testament," was duly executed and attested in 1856; upon search among the papers of the testatrix after her death, there was found, enclosed in a sealed envelope on which were written the words "Mrs. Ann Foote's will," a will executed by her in 1851, but not so attested as to have any validity as a will, and no other testamentary paper of any description was found. Mr. Pemberton Leigh (afterward Lord Kingsdown) delivered the judgment of himself, Dr. Lushington, Sir Edward Ryan and Sir Cresswell Cresswell, affirming the decree of Sir John Dodson, reported in Deanc, 325; and upon an elaborate review of the authorities, holding that this will was sufficiently identified as the last will referred to by the codicil of 1856, and was incorporated with and made valid by that codicil, and that the two should be admitted to probate as together constituting the last will and codicil of the testatrix, although, as was observed in the judgment, since the St. of 7 W. IV & 1 Vict. chap. 26 (as under our Gen. Stats., chap. 92, § 6), "no paper not properly executed and attested can, in strictness, be for any purpose a will or codicil."

Several decisions of Sir IIerbert Jenner Fust since the statute, not referred to in that judgment, are to the like effect. For instance, where a widow made a will devising and bequeathing all her real and personal estate upon the trusts expressed in the will of her late husband, which she described by its date and as having been afterward revoked, it was held that the revoked will of her husband should be admitted to probate as part of her will. Goods of Durham, 1 Notes of Cases, 365; S. C., 3 Curt. Eccl. 57. So where a testator left property to his eldest son, in trust for himself and the other children as expressed in an indenture of settlement made between him and the testator two years before, it was held that the indenture was part of the will, but that as the original indenture ought to be retained by the trustee, a notarial copy should form part of the probate. Goods of Dickens, 1 Notes of Cases, 398; S. C., 3 Curt. Eccl. 60. And where a testator left a will and codicil, and on the first page of the will referred to "the paper hereunto annexed, as a further distribution of my effects," and at his death the will and codicil were found in a sealed packet, and attached to the will by a pin was a paper containing such a disposition and stated by the testator to be the paper referred to in the will, this paper was admitted to probate as part of the will. Goods of Willesford, 1 Notes of Cases, 404; S. C., 3 Curt. Eccl. 77. See, also, Goods of Bacon, 3 Notes of Cases, 644; Goods of Smartt, 4 id. 38.

In Dickinson v. Stidolph, 11 C. B. (N. S.) 341, a testatrix, on August 27, 1819, made a will executed and attested in the manner required to pass both real and personal estate, making specific devices and bequests, containing no residuary devise, appointing an executrix, and "revoking all former wills, excepting two memorandums dated May 10, 1819, which are to remain in force with this my last will." After her death, one memorandum only dated May 10, 1819, was found, which was signed by her and attested sufficiently for a will of personal property, but not for a will of real estate, and which, though not styling itself a will, purported to dispose of her property, without mentioning

whether it was real or personal. This memorandum was admitted to probate with the will, but by the law of England was not thereby established as to real estate. But in an action at law to try the title to the real estate, it was held, after advisement, in a judgment delivered by Mr. Justice Williams (the author of the Treatise on Executors, and a master of the law of wills) in behalf of himself and Chief Justice Earle and Justices Willes and Byles, that the memorandum was incorporated in and republished by the will, and operated on the real estate of the testatrix.

In Quihampton v. Going, 24 Weekly Rep. 917, a testator by his will declared, for the information of his trustees, that the amounts or values entered on a certain page of his ledger, dated fourteen days earlier than the will and signed by him, were the only advancements, either by way of gift or loan, previously made by him to any of his children. Sir George Jessel, M. R., held that the entries so signed on that page of the ledger must be regarded as part of the will, and conclusive for the purposes of the will, although the sums

afterward. Waters v. Stickney, 12 Allen, 1; Musser v. Curry, 3 Wash. C. C. 481. Decree affirmed.

PERSONAL LIABILITY OF PUBLIC OFFICERS ON CONTRACTS.

IOWA SUPREME COURT, JUNE 20, 1881.

WING V. GLICK.

Defendants, who were officers of the school board of a town ship, made a written order upon plaintiff to deliver certain school supplies of a designated value. The order contained this, and we agree to pay for said goods on the first day of March, 1879," etc., and was thus signed by defendants, "J. B. Southwick, Sec'y School Board; W. H. Glick, President School Board." Held, that defendants were personally liable upon this order, and in an action against them thereon parol evidence was inadmissible to establish a liability on the part of the township.

the children.

The cases of Smart v. Prujean, 6 Ves. 560; Wilkinson v. Adams, 1 V. & B. 422; Dillon v. Harris, 4 Bligh N. R. 321, and Croker v. Hertford, 4 Moore P. C. 339, merely show that clear proof of the identity of the paper referred to, and of its existence at the time of the execution of the will, is essential, and was not made to the satisfaction of the court in those cases.

It is usual and proper, though not absolutely necessary, that a paper sufficiently referred to, and in existence at the date of the will, and clearly identified, should be set out in the probate; and this should always be done when the executors desire it, and the paper is in their possession, in order that the entire disposition of the estate may appear upon the record. Sheldon v. Sheldon, 3 Notes of Cases, 150; S. C., 1 Rob. Eccl. 81; Goods of Sibthorp, L. R., 1 P. & D. 106; Bizzey v. Flight, 3 Ch. D. 269; Quihampton v. Going, above cited.

In the present case the testator by the third codicil expressly revokes that part of the will which gives directions for the payment of legacies, and orders and directs his executors to pay the legacies mentioned in his will and codicils as nearly as may be according to the directions written in a book by Melvin W. Pierce, signed by the testator and witnessed by Pierce. The book admitted to probate contains such directions, so written, signed and witnessed, specifying the property out of which each legacy is to be paid; and with the exception of two memoranda in the margin, which were excluded from the probate, is agreed by the parties to have been in its present form at the time of the making of the third codicil. There is no doubt, therefore, of the identity of the document referred to, nor of its existence at the date of the execution of the testamentary instrument which refers to it.

The fact that the book was in the possession and control of the testator might require a close scrutiny of the evidence that it remained in the same condition as at the time of the execution of the codicil, if there were any controversy upon that point, but is otherwise immaterial. It is not necessary that every portion of a will should be verified by the signature of the testator and the attestation of the witnesses; it is sufficient that the different sheets or papers should clearly appear upon their face, or by extrinsic evidence, to have formed part of the will at the time of its execution and attestation. Ela v. Edwards, 16 Gray, 91, 99; Marsh v. Marsh, 1 Sw. & Tr. 528.

The document in question, which was in law part of the will, having by mistake not been presented for probate with the will, the Probate Court had, and rightly exercised, the power to admit it to probate

Southwick for goods sold and delivered upon this

The defendants claimed in their answer that they did not execute the contract as their own, but as that of the township of Hale, and they were permitted upon the trial to give parol evidence to establish their claim. From a verdict and judgment for defendants plaintiff appealed.

W. I. Chamberlin and Herrick & Doxsee, for appellant.

J. W. Jamison, for respondents.

ADAMS, C. J. The defendants were allowed to show by parol evidence that the contract was executed as the contract of the district township of Hale. The plaintiff insists that the court erred in allowing such evidence, because the effect was to add to the terms and change the effect of the written contract. It will be observed that the district township of Hale is not mentioned in the contract, nor are any words, letters or abbreviations used with the design of indicating such district township. Most clearly such district township cannot be said to be a party to the contract so far as its terms are concerned. It follows that unless the contract can be held to be the contract of the defendants, it is the contract of no one. But we are not allowed to so construe a contract as to deprive it of all force, if it is susceptible of any other reasonable construction. If the defendants had not appended to their signatures a description of themselves, it would have been abundantly evident that they intended to assume a personal obligation. The language of their contract is, "We agree to pay," etc. But the description alone will not enable them to evade the obligation. It is well settled that where a person in executing a contract describes himself as agent without disclosing his principal, the contract becomes the personal obligation of the maker and no one else. Kenyon v. Williams, 19 Ind. 44.