referee found a conversion by the defendant of the whole 12 tons, and assessed the plaintiff's damages at $180, and the defendant excepted.

Streeter, Walker & Chase, for plaintiff. S. Dana, for defendant.

SMITH, J. The defendant knew. of the division of the hay, made no objection to it, and, after it was made, recognized it. From these facts it was competent for the referee to find that the plaintiff became the owner of a divided half, subject to the restriction that it was to be consumed upon the farm, or be replaced by an equivalent in feed, or by an amount of fertilizers equal to what would be made by the hay sold. The defendant's direction to his employé to feed his cattle from the plaintiff's hay was an act of dominion wrongfully exerted over the plaintiff's property, inconsistent with his right. It is not necessary, in order to constitute a conversion, that there should be a manual taking of property. Baker v. Beers, 64 N. H. 102, 105, 6. Atl. 35; Evans v. Mason, 64 N. H. 98, 5 Atl. 766; and authorities cited. In this case there was a manual taking of two tons of the hay, and the evidence was sufficient from which to find a conversion of the whole. The plaintiff is entitled to judgment for $180, and interest. Exception overruled.

ALLEN, J., did not sit. The others concurred.

SMITH v. GREELEY et al. (Supreme Court of New Hampshire. Hillsborough. March 17, 1893.) TESTAMENTARY TRUST - POWER TO SELL TO SUPPORT BENEFICIARY -- CONSTRUCTION-"FAMILY" OF LEGATEE-MEANING OF WORD.

1. Where a will empowers a trustee to maintain testator's "son or his family" out of the income of the trust estate, or, if that be insufficient, then, in his discretion, to convert said estate into money to be used for such purpose, or, when it seems advisable, to convey such estate to said son, his heirs and assigns, the trustee may, in his discretion, sell the estate to reimburse himself for money advanced by him for the carrying out of such trust, and to repay a person who furnished necessaries to such son or his family.

2. The word "family," as used in such will, includes the widow and children of said son, though one of the children is merely a stepbrother of the others, and does not live with them and their mother, the widow.

Case reserved from Hillsborough county. Action by David O. Smith against Ida B. Greeley and others, asking for the construction of a certain will of which plaintiff is executor. Case discharged.

The plaintiff is executor of the will of Samuel Greeley, late of Hudson, in said county. The testator's will was proved April 22, 1879. The plaintiff asks for construction of a certain part of the will. The terms of the will referred to are these: "I give, bequeath, and devise to David O. Smith, of Hudson, afore

Said

said, trustee, in trust, the tract of land, with the buildings thereon, situated in said Hudson, known as the Tenney Farm.'* * * Also one undivided half of my land in said Hudson, lying between the 'Burns Road,' so called, and the Hills meadow, containing in all 40 acres, more or less." Following the description of the land is this provision: "Said trustee to hold the same for the following purposes, with full force to convert the same into money, if he thinks best, to pay the income thereof, and, if necessary for his support, such portion of the principal as he may think best, for the support and maintenance of my son, James C. Greeley, or his family. And whenever, in the discretion of said trustee, he may think it advisable, with full -----to convey the same to said James C. Greeley, his heirs and assigns." James C. Greeley was alive and unmarried when the will was proved. He had a son, one of these defendants, Lewis J. Greeley, by a former marriage, who was then, and now is, a minor. After the allowance of the will, James C. Greeley married Ida B., one of the defendants, and they had four children, now alive. James C. Greeley died in March, 1892, intestate. On the 11th day of January, 1882, this executor sold and conveyed a part of the land held in trust, and acquired in place of it, on the 13th day of December, 1881, another piece of land in Hudson, and the deed was taken in his name as trustee, and the title so remains, as also the title acquired under the will to that which was not disposed of. James C. Greeley, or his family, enjoyed the income of the premises for his support and maintenance and that of his family as long as he lived. The child of the first wife has lived in Lowell, and has not constituted a part of his family for several years. The executor not only allowed Mr. Greeley to have this income, or his family, but he paid out considerable money besides; the same being necessary for his support. The executor did not deem it best at that time to dispose of the premises to reimburse himself. One Chase, of Hudson, during Greeley's life, after the creation of this trust, loaned Greeley certain money for his support and that of his family, the same being necessary. The executor desires. if he has the right, to pay said Chase said money so loaned, and he desires to reimburse himself for the amount he advanced for said Greeley's support, and he thinks it advisable to sell a portion or the whole of said premises in order to do this. He brings this proceeding to ascertain what his power and authority is under the will, and because he is uncertain to whom he shall pay the proceeds arising from any sale of the premises that he may make, or whether he shall continue to hold the same in trust, if he thinks it advisable. He is uncertain whether by the "family" of said Greeley, as mentioned in the will, is meant his family as it existed at the time of the proof of the will, or his family as it existed after the second

deem it advisable to convey the premises to the family, whether he should deed it to the widow and her children, or to the child of the first wife, or to all of the children. He is also uncertain, if he deems it advisable to retain the property, whether he shall apply the income for the support of the widow and her children, or that of the children alone, and whether that would include the children of both marriages. The widow claims that the income should go to the support of herself and her own children, and the defendants claim that the plaintiff should not reimburse himself, or pay said Chase. The child by the first marriage has been supported for several years at Lowell, by his grandmother, who claims of the executor that she should receive a portion of the income of this property, or the whole, to remburse her, and for future support, and for reimbursement out of the proceeds of any sale. Upon these points the plaintiff asks for a construction of the will, and an order concerning his duty.

George B. French, for plaintiff. C. W. Hoitt and Doyle & Lucier, for defendants.

CLARK, J. By conferring upon the trustee the power to convert the real estate devised into money, at his discretion, the testator indicated a purpose to provide a fund, the income of which, and so much of the principal as the trustee might consider necessary, should be applied to the support and maintenance of his son, James C. Greeley, or his family, and that the trustee should terminate the trust by transferring whatever of the fund remained to James C. Greeley and his heirs when he considered it advisable to do so. The trust estate set apart by the testator for the support of his son or his son's family was chargeable with that support to the extent deemed necessary by the trustee, and, the conversion of the trust property into money being in the discretion of the trustee, it was immaterial whether it took place before or after the support was furnished. It was the duty of the trustee to adopt the course most beneficial to the estate, and in the exercise of his judgment he advanced the money needed for the purposes of the trust upon the credit of the trust estate. The trustee is entitled to be reimbursed for the money advanced by him, and for this purpose, in the exercise of the authority vested in him by the terms of the trust, he may sell a part or the whole of the trust property. If the money loaned by Chase to Greeley for the support of himself and family was furnished at the trustee's request, it stands upon the same footing as the money advanced by the trustee, and the trustee is authorized to repay it from the trust fund. If it was not furnished at the request of the trustee, it is like any other claim for necessaries furnished for the reasonable support of James C. Greeley or his family, if there are any such; and such claims may be paid by the trustee, if, in his

sonable and necessary. By the word "family" we think the testator meant to include any wife, child, or children of James C. Greeley Townsend v. Townsend, 156 Mass. 454, 456, 31 N. E. 632. In wills the word "family" ordinarily means "next of kin," and there is nothing indicating that it was used in a different sense by the testator. The trustee is authorized to pay for the maintenance of Lewis J. Greeley by his grandmother at Lowell, whatever sum she is reasonably entitled to receive in the judgment of the trustee. It does not appear that the support was furnished with the expectation of being repaid from the trust fund. It is apparent that the testator considered the possibility of the termination of the trust in the lifetime of his son from the provision empowering the trustee to convey the property to him whenever he should think it prudent or advisable to do so. Aside from the fact that the discharge of the trust is vested in the discretion of the trustee, there is nothing indicating a purpose to continue it beyond the life of James C. Greeley. The judgment of the trustee is to determine when it shall cease. Unless the circumstances require its continuance, the trustee may close the administration of the trust, and make distribution of the residue, whenever he deems it advisable. If the situation is such in the judgment of the trustee as to require the continuance of the trust, the income should be applied to the support of the family of James C. Greeley, including the widow and all of the children. If distribution is made, it should be according to the statute of distribution of personal estate,— one-third to the widow and the remaining two-thirds divided equally among the five children of James C. Greeley. Case dischar ged.

1. In trespass for beach land, it appeared that the land was originally granted by charter to South Hampton. By Act Dec. 4, 1742, "all the inhabitants of South Hampton and their estates," lying to the eastward of a certain line, were annexed to Hampton Falls. Held, that the transfer of the inhabitants and their estates, without other description, did not convey the uninhabited land, of which the beach lands were part.

2. Act June 26, 1822, fixed the west line of Seabrook, and enacted that "all the lands, nonresident as well as resident, and the waters lying easterly thereof to the sea shall belong to the town of Seabrook for the purpose of taxation * * * and to all other legal * * * purposes." Held, that the act did not affect the title to land within such limits which was previously vested in another town.

the establishment of the boundary between the province of New Hampshire and the provInce of Massachusetts in 1741, this territory had been within the limits of Salisbury, in the province of Massachusetts Bay; and the case finds that the beach in controversy was at that time, and for many years prior thereto had been, in the possession of the commoners or proprietors of the common lands of Salisbury. After the establishment of the boundary line substantially as it exists between the states at the present time, a charter was granted May 25, A D. 1742, "at the petition of sundry inhabitants of the land. bordering on Massachusetts, granting and confirming to the said inhabitants and their successors to be a town or parish incorporate by the name of South Hampton, bounded as follows: Beginning at the Atlantic ocean on the east, at a distance three miles north of the mouth of the Merrimack river, and thence to run northerly to the bound of that part of Hampton called Hampton Falls, thence westerly to the parishes of Kensington and Kingston," etc., "including all the inhabitants and their estates from said three miles north of the Merrimack river northerly from Mitchell's line [state line] to Hampton Falls * * excepting the lands, estates and polls of Jacob French," and certain others named in the charter, "who are hereby annexed to the parish of Hampton Falls." "To have and to hold all the privileges and immunities of a town corporate, and to be ruled and governed in all respects for the said town affairs by the laws of the province of New Hampshire as other towns are." The beach in controversy is within the boundaries of the South Hampton charter. December 4, A. D. 1742, upon a petition of sundry of the inhabitants of South Hampton, setting forth that, "by reason of their distance from the meetinghouse, it was difficult for them to attend public worship and other affairs of the town usually transacted there, and thereupon praying to be set off to the parish of Hampton Falls, to which they were nearest, which having been considered, and appearing reasonable," it was enacted by the provincial legislature that "all the inhabitants and their estates lying to the eastward of said line [now the westerly line of Seabrook] within the said part of South Hampton shall be annexed to Hampton Falls parish aforesaid, and are hereby determined and declared to belong to the same to all intents and purposes whatever," excepting only with respect to the duty of repairing highways below or to the eastward of a line described. As the set-off from South Hampton to Hampton Falls was of the "inhabitants and their estates" in that part of South Hampton eastward of what is now the westerly line of Seabrook, without other description, it did not include the nonresident and uninhabited lands of South Hampton lying east of that line, and southerly of the part set off, and did not extend to the Massachusetts line or to

the ocean, and did not include the beach lands. June 3, 1768, a charter was granted by the provincial legislature incorporating a new parish in Hampton Falls by certain boundaries (describing a line beginning on Kensington line, and extending by sundry intermediate bounds to the mouth of Brown's river, and being substantially the present line between Hampton Falls and Seabrook), which is declared to be "the dividing line between the old parish of Hampton Falls and said new parish, which contains all that part of Hampton Falls which lays southerly of said line and easterly of Kensington line, and all the polls and estates within said boundaries are hereby erected and incorporated into a new parish by the name of Seabrook." A clause in the charter permitted any person, within two months after the division was made, "to poll off" with his estate into the other parish, thus giving the inhabitants the privilege of choosing which parish they would belong to. The exercise of this privilege caused confusion afterwards in the matter of highway taxes, and in 1791 the legislature, upon petition, enacted that the inhabitants should work out or pay their highway taxes in the parish where they lived. The petition to the legis lature recited that Seabrook was taken off from Hampton Falls, and made a distinct parish, on account of the dissent of the people from the settlement of the Rev. Mr. Wingate as the minister of the parish of Hampton Falls, and that liberty was given to persons on either side of the division line to poll off with their estates into the other parish, "that they might have the choice as to the enjoyment of the privileges of religious worship in one parish or the other." 12 N. H. Town Papers, p. 151. It is apparent that Seabrook, when incorporated as a parish in 1768, was taken entirely from Hampton Falls, and included substantially the territory set off from South Hampton to Hampton Falls by the act of December 4, 1742, being separated from the ocean and from Massachusetts by the easterly portion of South Hampton. From a plan of South Hampton filed in the office of the secretary of state under the act of December 30, 1803, requiring towns, parishes, and places to be surveyed for the purpose of obtaining a map of the state (Laws 1804, p. 207), showing, among other things, the extent other towns adjoined, it appears that what is now the southern portion of Seabrook was then included within the limits of South Hampton. This plan contains the following the following memoranda: "South Hampton joins Seabrook, or runs down in or upon Seabrook 1,901 rods." "South Hampton adjoins the ocean 433 rods." "South Hampton adjoins Salisbury, Mass., as the line runs, 3,077 rods." "South Hampton taxes all the nonresident land below this. double line [Seabrook west line] to the ocean, but the inhabitants belong to Seabrook." South Hampton v. Fowler, 52 N. H. 226

Thus it appears, and it is agreed, that the boundaries of the parish of Seabrook, as incorporated June 3, 1768, did not include the beach in controversy. If Seabrook has a title to the beach, it has been acquired since its charter was granted. The only mode suggested by which a title could be gained is by the act of June 26, 1822. That act confirmed and established the westerly boundary line of Seabrook, and enacted that "all the lands, non-resident as well as resident, and the waters lying easterly thereof to the sea shall belong to the town of Seabrook for the purposes of taxation and jurisdiction, and to all other legal and constitutional interests and purposes whatever. Provided, however, that any part thereof, which is now the public property of the town of South Hampton, shall be exempt from taxation so long as the same shall belong to that corporation." The act did not purport to transfer any title or make any grant of land. It extended the municipal franchise over the territory, but it neither divested nor conferred any title. Its operation and effect was to make all the land, nonresident as well as resident, within the limits defined, subject to the municipal authority of the town. of Seabrook, the resident land being already under its jurisdiction. The mere act of incorporation of the inhabitants of a territory confers no title to the land previously granted or ungranted. But, if the law was otherwise, the recognition of the claim of South Hampton to the ownership of a portion of the territory by exempting it from taxation is conclusive that the legislature did not undertake or intend to transfer any land title from South Hampton to Seabrook. It does not appear that Seabrook ever acquired a title to the beach land in controversy. Judgment for the defendant.

CARPENTER and CHASE, JJ., did not sit. The others concurred.

WHITNEY v. HALE. CHENEY v. PETERBOROUGH SAV. BANK. VAIL v.

HUDSON NAT. BANK. (Supreme Court of New Hampshire. Cheshire. March 17, 1893.) MORTGAGE-DESCRIPTION OF NOTE - KNOWLEDGE OF BENEFICIARY-ACCEPTANCE.

1. H. received $5,000 of W., on an agreement to convey W. an interest in land, or to refund the money, with interest. $4,000 of the money was borrowed of the K. Bank on a joint and several note of W. as principal and H. as surety. Thereafter, H., having disposed of the land, executed a mortgage conditioned to secure W. from loss by reason of his signing, at the request and for the accommodation of H., a note for $4.000, with H., payable to the K. Bank. Held, that the description of the note was correct and sufficient.

2. Such mortgage is a valid security for the note, though W. supposed that he had an interest in the land, and that the debt to the bank was his, as between him and H. v.30A.no.8-27

3. The validity of a recorded mortgage is not dependent on the beneficiary's knowledge of its existence. His acceptance of it will be presumed.

Case reserved from Cheshire county.

Action by George E. Whitney, Thomas P. Cheney, and Theodore N. Vail against Samuel W. Hale, the Peterborough Savings Bank, and the Hudson National Bank for the foreclosure of a mortgage given by the defendant Hale, June 3, 1885, of certain real property, in favor of the plaintiffs and oth

Damages assessed by a commissioner, who reported the following facts: Vail's damages are assessed at $7,792.10, and Cheney's at $178.18, concerning which no objection is made. In January, 1883, Hale offered to sell to Whitney one-fourth interest in a tract of land in Victory, Vt., for the sum of $5,000. January 22, 1883, Whitney accepted the proposition, and paid Hale $5,000, of which sum $4,000 was raised at the Keene National Bank on a joint and several promissory note in the usual form, signed by Whitney as principal and Hale as surety, and date January 22, 1883. At the same time Hale gave Whitney a writing, of which the following is a copy: "Keene, N. H., Jan. 22, 1883. Received of George E. Whitney five thousand ($5,000) dollars for a onefourth interest in a certain tract of timber land in the town of Victory, Vermont, which I recently bought of George W. Chamberlin and I. Thompson. Said lot contains six and one-half lots of land, the conditions of the said purchase of G. E. Whitney being that said Whitney is to have one-fourth of the proceeds, less expenses, or his money refunded, with interest. S. W. Hale." A corporation styled the New England Lumber Company was organized March 22, 1883. The property of the corporation consisted of the Victory land above mentioned, with the lumber and certain machinery thereon, conveyed to the corporation by Hale. Whitney never received any deed from Hale of any share or part of the land, nor any portion of the proceeds of the property so conveyed by Hale to the company, nor any of the certificates of stock of the company. Hale became insolvent in June, 1885. Whitney considered the $4,000 note as his note, and paid the interest upon it to January 22, 1886, making the last payment April 30, 1886. He ceased to pay interest because Hale had disposed of the land. He supposed at the time of Hale's failure, and stated, that he had a quarter interest in the land. The condition of the mortgage, so far as it related to Hale's indebtedness to Whitney, is as follows: "And shall well and truly indemnify and save harmless the said Whitney from all loss, cost, damage, and expense to which he may be subjected by reason of his signing, at the request of said Hale and for his accommodation, a certain promissory note for four thousand dollars, with said Hale, payable to the Keene National Bank, and shall well and