its waterworks. Rev. Ord. Concord 1894, c. 22, §§ 2, 4. It is argued that this ordinance is in effect the same as a statute enacted by the legislature, and that therefore the commissioners come within the class of independent officers, whose acts the city cannot control or regulate, and for which it is not liable. The defect in this reasoning is apparent. The officer whose duties are fixed by the legislature is beyond the control of the city, and, however much it may desire to change those duties, it is powerless to do so. On the other hand, the ordinance in this case, although enacted in the form of legislation, is a mere rule of conduct or delegation of authority given by the city itself to those employed in its service. It may change the duties or take away the powers granted at any time, and the ordinance in express terms reserves to the city councils the right to remove the commissioners. Id. § 3. The commissioners were servants of the city. Grimes v. Keene, 52 N. H. 330, 335. The defense that the suit should be against the precinct, and not against the city, is not available. "The water commissioners are the officers of the whole city, and not of the precinct, are elected by the city councils, and, so far as they are answerable for their conduct, are answerable to the city, and not to the precinct." Brown v. City of Concord, 56 N. H. 375, 379. Demurrer sustained.

MUNICIPAL CORPORATIONS INSUFFICIENT DRAINS-FLOODING LAND-SURFACE WATER -CONTROL-REFEREE'S FINDING SUFFICIENCY-RECOMMITMENT.

1. Where a city, by reason of a faulty and insufficient system of drains, unreasonably turns surface water on another's land, thereby invading his property rights, it becomes liable for damages.

2. Though a city is not obliged to prevent the natural flow of surface water, and is not liable to a person whose lands have been flooded thereby, yet it will be liable if it increases the quantity of the water, and unreasonably fails to provide an outlet.

3. An owner of a lot, through which a natural outlet for certain surface water extended, closed the same, and put a closed drain in its stead, to which the city connected other drains. During a heavy rain the plaintiff's lands were flooded, by reason of the insufficient system of drains. Held, in an action for damages against the city, that the fact that there would have been an outlet but for the act of such lot owner in closing such natural outlet was no defense, since the city had no right to demand the use of a natural watercourse across his land to carry off water collected by it.

4. Where, in an action against a city for flooding lands by reason of a faulty system of drains, it does not appear whether the referee's

finding for plaintiff was founded on defendant's failure to control the natural flow of surface water, or on an unreasonable failure to take care of an artificial flow created by defendant, the case will be recommitted, since a city is not bound to control the natural flow of surface water.

Appeal from probate court, Merrimack county.

Action by Fred E. Flanders against the city of Franklin to recover damages for flooding plaintiff's land. From a finding by the referee in favor of plaintiff, defendants appeal. Reversed.

Case for negligence in allowing a sewer, culvert, and brook in Prospect street to become filled up, out of repair, and insufficient to carry off the water, in consequence of which it flowed down Winnipiseogee street onto the plaintiff's land. Trial by a referee. The land slopes from Prospect street westerly down Winnipiseogee street to the plaintiff's land, on Railroad avenue. Prior to 1887 there was a depression in the Shepard lot, just west of Prospect street, through which the water collecting in Prospect street and vicinity flowed off. About 1887 the owners filled up the depression, and laid an 8-inch drain pipe in its place. In 1889 the defendants constructed a covered drain 18 inches square across Prospect street, and connected it with the Shepard pipe. This drain was designed to take the water from the Sturtevant lot, lying east of Prospect street, and also from the street. About the same time they built a similar drain across Prospect street, 200 feet further south, and connected it with the Shepard pipe. This was to drain the Schlegel land and take the water from the street. In 1897, during the largest rainfall since 1869, the Shepard pipe proved insufficient to carry off the water coming to it; and as a consequence the water flowed down Winnipiseogee street, and washed large quantities of sand upon the plaintiff's land. These results were not caused by the defendants' negligence, as alleged, but were caused by the faulty and insufficient system of drains; the Shepard pipe being of insufficient capacity to carry off the water coming to it from the other pipes. If the natural water course through the Shepard land had not been filled up, the plaintiff's land would not have been damaged. Upon the opening of the case the defendants called attention to the fact that the declaration only charged negligence in allowing the sewer to become filled up. The plaintiff replied that he would ask for leave to amend by charging a faulty system of construction, and repeated the statement in the closing argument. The defendants objected upon the ground that it was too late to cite in the owners of the Shepard land. Later the plaintiff filed a proposed amendment, to the allowance of which the defendants objected, and stated that if it was allowed they would probably demur. The referee found that the plaintiff could not recover upon his original declaration, but could under the

amendment, if allowed, and assessed the damages.

George R. Stone and Edward B. S. Sanborn, for plaintiff. Leach & Stevens, for defendants.

PEASLEE, J. If the defendants unreasonably turned surface water upon the plaintiff's land, thereby invading his property rights, they must answer for the consequences. Rhobidas v. City of Concord (N. H.; Dec., 1899) 47 Atl. 82. They were not obliged to prevent the natural flow of surface water, and, if they did nothing to increase it, they are not liable. If they increased the quantity of water, and unreasonably failed to provide an outlet, they are liable. Rindge v. Sargent, 64 N. H. 294, 9 Atl. 723. The fact that there would have been an outlet but for the acts of Shepard is no defense. If he unreasonably stopped the natural flow, he must answer therefor; but this would not make him liable over to the defendants for what is here complained of. They had no right to demand the use of a natural water course across his land to carry off water collected by them. If their conduct in failing to guard against the danger which they created was unreasonable under the circumstances, they are liable, although their conduct might have been reasonable under other circumstances.

It does not distinctly appear whether the verdict for the plaintiff was founded upon a failure to control the natural flow of surface water, or upon an unreasonable failure to take care of an artificial flow created by the defendants. For this reason, the case must stand for a further trial.

The question whether the acts were those of officers over whom the defendants had no control, and for whose acts they were not responsible, was not raised, and has not been considered.

The plaintiff's proposed amendment was objected to, both as insufficient in law, and offered at too late a day. It would seem that justice requires that the plaintiff should be allowed to restate his claim before the case again goes to trial. The question of amendment will be settled at the trial term. Case discharged. All concurred.

(70 N. H. 121)

SNOW v. DURGIN et al. (Supreme Court of New Hampshire. Carroll. March 16, 1900.) WILLS-CONSTRUCTION-VESTING OF LEGACIES.

1. A will provided that the residue of the estate should be sold by the executors, and the proceeds invested, and the interest applied for 10 years for the relief of "the most destitute of my relatives, not to extend beyond the children of my brothers and sisters and their families," after which the principal to be equally divided "between them, including the children" of two deceased persons in no way related to testator. Held, that the word "them" referred to relatives not more remotely connected with the testator than nephews and nieces, including

the children of the persons particularly named, and did not refer to "the most destitute of my relatives, not to extend beyond the children of my brothers and sisters and their families."

2. The legacies vested at the death of the testator, and not at the expiration of the term during which the trust was to continue.

Bill by Leslie P. Snow, trustee appointed by the will of Josiah Thurston, deceased, against Mary E. Durgin and others, for instructions in the execution of the trust. Instructions given.

Bill in equity for instructions in the execution of a trust. Josiah Thurston died testate November 13, 1886, leaving 1 sister, 17 nephews and nieces (11 of whom were children of deceased brothers and sisters), and a large number of grandnephews and grandnieces, of whom 2 were children of a deceased child of the surviving sister, 5 were children of nephews and nieces who died before the date of the will, and the others were children of surviving nephews and nieces. Sarah A. Towle, a person "brought up" by Josiah, as stated in his will, died between the date of the will and his death, leaving 1 child, who survived him. Nathaniel H. Thurston, who, as the testator states in the will, was "formerly in my family, and died in my house in April, 1875," left 3 children, who survived Josiah. Neither of the last-named persons was an heir of Josiah. He bequeathed $100 to his sister, $25 to each of his nephews and nieces, $500 to each of Thurston's children, $500 to Thurston's widow during life and then to his children, and $5,000 to Sarah A. Towle's child. He also gave $5,000 and some articles of personal property to Mrs. Towle, but after her death he revoked the legacy. He gave nothing to either of his grandnephews and grandniece. The residuary clause of the will is as follows: "As to all the rest and residue of my estate, real, personal, or mixed, wherever found or situated, it is my will that the same be sold by my executors as above provided, and the proceeds safely invested, and the interest of the same be applied by my executors, for the term of ten years, for the relief of the most destitute of my relatives, not to extend beyond the children of my brothers and sisters and their families, after which time the principal to be equally divided between them, including the children of Nathaniel H. Thurston, deceased, and the children of Sarah A. Towle." Instruction is asked in reference to the division of the residue of the estate.

Worcester, Gafney & Snow, for plaintiff and others. Foster & Hersey and John C. L. Wood, for Arthur H. Kenison and others. Josiah W. Thurston, pro se.

CHASE, J. By the terms of the will the income of the residue of the estate, for the term of 10 years, was to be applied for the relief of the most destitute of the testator's relatives, not to extend beyond the children of his brothers and sisters and their families; and then the principal was to be "equally di

vided between them, including the children of Nathaniel H. Thurston, deceased, and the children of Sarah A. Towle." In respect to the income, it has already been decided that a charitable trust was created, the beneficiaries of which were limited to such of the testator's relatives as were not more remote than nephews and nieces and their families. Gafney v. Kenison, 64 N. H. 354, 10 Atl. 706. The time for the distribution of the principal of the fund having arrived, the question arises, who are entitled to shares? This depends upon the intention of the testator, expressed by the pronoun "them" and the words following it. That this pronoun was designed to take the place of the noun "relatives," in some sense of the word, is apparent. The question is, what was the sense intended? In its broadest sense, "relatives" means all persons connected with another by blood or affinity, however remote the connection. There is, however, a limit beyond which these ties are not sufficiently strong to influence a person in making a disposition of his property. This fact is recognized in the laws of descent and distribution by the limitation of the persons who take under them to the next of kin, if there is no child, father, mother, brother, or sister. When the testator first used the word in his will, he expressly provided that it should not extend beyond the children of his brothers and sisters and their families. It thus appears that he used it in a limited sense. The word "relatives" and the words "next of kin" have been used in wills to designate the next of kin according to the statute of distribution. Varrell v. Wendell, 20 N. H. 431; Pinkham v. Blair, 57 N. H. 226; Goodale v. Mooney, 60 N. H. 528, 536. But "relatives," or its substitute, "them," was not so used here; for it included within its meaning "the children of Nathaniel H. Thurston and the children of Sarah A. Towle," persons who were not next of kin. Several independent provisions of the will uniformly tend to show that the testator did not intend to include in these terms any persons whose connection with him was more remote than that of children of his nearest of kin, or those who were nearest to him by reason of association and affection. Relatives more remotely connected were not to be relieved from the income. A legacy of $25 was given to each of his nephews and nieces, but no legacy was given to any grandnephew or grandniece, although there were many of them, and some whose parents had died before the date of the will. He "brought up" Mrs. Towle. He gave her $5,000, and her child $5,000,-much larger legacies than he gave to any of his kin. Thurston had lived in his family, and died at his house. He gave each of Thurston's children a liberal legacy. Evidently his association with these persons had been such that they were very near to him in affection, and yet in respect to them and their descendants he did not extend his gifts beyond their children. This evidence seems to be decisive of the point as to the limitation

which the testator placed upon the term “relatives" and its representative. It may be said that the connection in which the pronoun "them" stands shows that it was intended to supply the place of the words, "the most destitute of my relatives, not to extend beyond the children of my brothers and sisters and their families." The testator attempted to accomplish two objects by the provision of the will in which these words occur: (1) The application of the income of the residue of his property for a term of years to the relief of destitute relatives; and (2) the ultimate division of the principal. As his purpose was not to distribute the income among his relatives, or the most destitute of them, in fixed proportions, but to have it applied to their relief according to their needs, it was necessary to create a trust to accomplish the object. Accordingly he gave the possession and control of the property to his executors for the term of 10 years, accompanied with authority to determine who were relatively the most destitute of his relatives, to what extent they should severally be relieved, and whether the relief should be furnished in money or otherwise. Gafney v. Kenison, 64 N. H. 354, 357, 10 Atl. 706. His plan in reference to the principal was radically different. He divided that himself, not according to the degree of destitution of the relatives, but equally. A trust in favor of the most destitute of a class can be executed; for the trustee has authority to determine, subject to the supervision of a court of equity, who the beneficiaries shall be. Goodale v. Mooney, 60 N. H. 528. In the case of an absolute gift to such persons, the question would be where the dividing line between the destitute and the most destitute is; and it would be a question of fact, to be determined like other questions of fact. It is extremely improbable that a testator would create such a question for decision, even if he had the power. Moreover, if destitution were to be taken into consideration in making a division, it would naturally conflict with the principle of equality, as, in the appropriation of the income in this case, the division would be likely to be unequal and according to the respective needs of the legatees. For an example, see Goodale v. Mooney, supra. But there is direct evidence that the testator did not make destitution a condition of the right to share in the principal. He did not impose that condition in respect to the children of Thurston and Mrs. Towle. No reason is apparent why he should not have done so if he intended to do so in the case of his relatives. The conclusion is that "them" was intended to refer to relatives not more remotely connected with the testator than nephews and nieces, and to include the children of the persons particularly named.

The question when these legacies veste remains. Was it at the death of the testator, or at the expiration of the term during which the trust was to continue? A will ordinarily speaks as of the time of the tes

tator's death. "My relatives" are relatives who were living at that time. Langmaid v. Hurd, 64 N. H. 526, 15 Atl. 136. The most destitute of these were to be relieved from the income for a time, and then all of them (in the sense above indicated), including the children of the persons particularly named, were to share equally in the principal. There seems to be no room for doubt in respect to the testator's intention on this point. It is also evident that the legacy was given to the individuals described by the terms "relatives" and "children" as classes, and consequently that it goes to the survivors of the classes named. Hall v. Smith, 61 N. H. 144; Campbell v. Clark, 64 N. H. 328, 10 Atl. 702; Brewster v. Mack, 69 N. H. 52, 44 Atl. 811. In such case the legacy vests in the survivors immediately upon the testator's decease. Kennard v. Kennard, 63 N. H. 303; Stevens v. Douglass, 68 N. H. 209, 38 Atl. 730; Thyng v. Lane, 69 N. H. 403, 43 Atl. 616. In Pinkham v. Blair, 57 N. H. 226, the testator devised his estate to his two daughters in fee, and provided that if either should die without issue the survivor should have the share of the one so dying, and if both should die without issue the testator's son should have the use of the property during life, and it should then go to the heirs of his body and their heirs and assigns, or, in the event of his dying without issue, to the testator's next of kin. It was found that the testator's intention was that the persons who were his next of kin at the time of the death of the survivor of his children should take the property in case all of the children died without issue. One reason given for the decision was that "it would be * extremely absurd to suppose the testator could possibly have intended to give the property over, after the death of his children without issue, to those very children to whom he had previously given it in fee." A similar provision in a will was construed in the same way, upon like grounds, in Hardy v. Gage, 66 N. H. 552, 22 Atl. 557. But, aside from being authorities upon the point that the intention of the testator is to govern, they afford no aid in the decision of this case. Here there was no intermediate conditional estate, but the fund and its income were unconditionally disposed of at the same time, and by words which were to be applied to the circumstances as they existed at the time of the testator's decease.

To make a division of the residue according to these views, it should be divided into as many equal parts as there were persons living at the decease of the testator, who were his sister, nephews, and nieces, and the children of Nathaniel H. Thurston and Sarah A. Towle; and each of such persons now living should have one part, and, if any have died in the meantime, their representatives should have their parts, respectively. Case discharged.

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

(70 N. H. 251) FRANKLIN et al. v. NEW HAMPSHIRE FIRE INS. CO. SAME v. PALATINE INS. CO. NEW HAMPSHIRE FIRE INS. CO. v. FRANKLIN et al. PALATINE INS. CO. V. SAME.

(Supreme Court of New Hampshire. Coos. March 16, 1900.)

INSURANCE COMPULSORY ARBITRATION WITHDRAWAL OF ARBITRATOR-RIGHT TO SUE-TIME TO BRING ACTION.

1. Where one of the arbitrators selected to pass on the differences between an insurer and an insured concerning a loss under a fire policy withdraws before a determination is reached, the award is of no effect.

2. Where, after the difference between an insurer and insured over a loss on a fire policy has been submitted to arbitration, but before an award has been made, the insured gives notice that he will not proceed further, an award is of no validity.

3. The provision in the New Hampshire form of fire policy providing for a compulsory reference between insurer and insured in case of a loss does not require an arbitration as a condition precedent to beginning suit on the policy, under Pub. St. c. 170, § 10, permitting suit to be brought by the insured if not satisfied with the adjustment made by the insurer.

4. The provision in the New Hampshire form of fire policy authorizing a compulsory arbitration of the differences between insurer and insured does not limit the right of action of the insured to an action to recover the amount allowed in such arbitration.

5. Under Pub. St. c. 170, § 9, authorizing an action on a fire policy if the insurer fails to adjust the loss within 15 days after notice thereof, an action may be maintained after such notice, although the policy provides that the insurer shall pay within 60 days, and that time has not expired.

Actions by Franklin & Salomon against the New Hampshire Fire Insurance Company and the Palatine Insurance Company, and petitions by the New Hampshire Fire Insurance Company and the Palatine Insurance Company for appointment of arbitrators. Case presented on an agreed statement of facts. Case discharged.

Assumpsit to recover on policies of insurance, and petitions by the insurers for the appointment of arbitrators. Facts agreed. The policies were in the standard form. The insurance was upon furnishing goods and clothing. The fire occurred February 4, 1899. On February 13th the parties agreed upon referees to adjust the loss, who proceeded in accordance with the submission until February 20th, when the referee chosen by the insured withdrew and refused to participate further in the appraisal. On February 23d, and before the appraisal was completed, the insured served upon the insurers' agents, and upon the two referees who had not withdrawn,, a notice of refusal to proceed with the arbitration. The insured were notified of the appraisal by the insurers prior to March 6, 1899, when proof of loss in the usual form was made against both companies, and March 27, 1899, suits were brought upon the policies. The insurers served their petitions on the insured April 17, 1899. The insurers do not de

ny their liability, and have always been willing to pay the award.

Daley & Goss, for Franklin & Salomon. Drew, Jordan & Buckley, for the insurance companies.

PEASLEE, J. The agreement of the parties to submit their differences to arbitration was revoked by the refusal of one of the arbitrators to act, and the notice given the insurers by the insured. It is the well-settled law of this state that either the refusal of the arbitrator to perform the duties necessary to carry out the purpose of the agreement, or the withdrawal from the compact of either party before the award is published, renders the agreement of no effect. Wright v. Cobleigh, 21 N. H. 339, 342; Kimball v. Gilman, 60 N. H. 54. The contract of insurance contained the following provision: "In case difference of opinion shall arise as to the amount of any loss under this policy, other than on buildings totally destroyed, unless the company and the insured shall, within fifteen days after notice of the loss, mutually agree upon referees to adjust the same, either party may, upon giving written notice to the other, apply to a justice of the supreme court, who shall appoint three referees, one of whom shall be thoroughly acquainted with the kind of property to be considered, and their award in writing, after proper notice and hearing, shall be final, and binding on the parties." The policy being in the form approved by the legislature, it is argued that this provision is a condition precedent to the right to sue; that the parties must first arbitrate, and then, if the insured chooses, he may sue; but upon the question of damages the only evidence admissible will be the award of the arbitrators. Being the only admissible evidence, it would be conclusive on the question. Like a formal judgment, it would import absolute verity. He might sue for his loss, but he could not litigate one of the principal questions involved. The contract, it is said, is not to pay the loss, but only to pay what three men shall say that the loss is; that is, since the adoption of this form of policy in 1885, every case in which the amount of loss has been litigated has been erroneously conducted; and in each case the only inquiry on this branch should have been, "What is the sum fixed by arbitrators?" The contention is that the referee clause is of the very essence of the contract; but beyond the policy is the statute which the policy is not allowed to contradict (Pub. St. c. 170, § 18), and which shows that the legislature did not understand that the question of the amount of loss had been taken from the court. Section 13, c. 170, Pub. St., provides that "If upon trial the insured recovers more than the amount determined by the insurers," etc. If the only contract made by the insurer was to pay the amount determined by arbitrators, this provision of the statute is meaningless; but if the statute means, as it must, that the amount

of loss may be litigated, the referee clause cannot mean that an award of arbitrators is the only foundation for the suit.

It is further argued that, after an adjustment by the company, it is the right of either party to compel a reference by a seasonable application therefor; that this is the contract which the legislature has provided for the parties; that by entering into it the insured waives any rights conflicting with its provisions; and that for various reasons such a law is wise and equitable, and should be upheld. This contention is answered by the provision that, if the insured is dissatisfied with the adjustment made by the insurer, he may bring his action. Pub. St. c. 170, § 10. The adjustment here referred to is the amount which the insurer is willing to pay, or the sum it fixes as the amount of the loss. Even if the parties are agreed as to all other questions, dissatisfaction with the insurer's estimate of the loss entitles the insured to sue. If he may bring suit, he is not bound to abandon the action because of a stipulation in the policy which conflicts with the statu tory provision under which the suit was brought. The statute must prevail over the policy contract, for such was the legislative intent. "This chapter shall be a part of every contract of insurance. No waiv

*

er of any part of it shall be set up by the insurer, and every stipulation in the contract in conflict with it shall be void." Id. § 18; Perry v. Insurance Co., 67 N. H. 291, 33 Atl. 731. This section was enacted in 1879 (Laws 1879, c. 13), immediately after the decision that a provision in the policy which conflicted with the statute was a waiver of the latter. Tasker v. Insurance Co. (decided Aug., 1878) 58 N. H. 469. Since 1879 the law which is now chapter 170 of the Public Statutes has been a part of every contract of fire insurance made in this state. In 1885 it was enacted that the insurance commissioner should provide a standard form of policy, and that all companies should. conform to the regulations prescribed by him. Laws 1885, c. 93, § 3. Acting under this authority, the commissioner prescribed the form since known as the "New Hampshire standard form of policy." Ins. Com. Rep. 1885, pp. 5, 73. Grave doubts arose as to the binding effect of the commissioner's action. A similar statute, passed by the same legislature, was held to be invalid as an attempted delegation of legislative power. In re School Law Manual, 63 N. H. 574, 4 Atl. 878. In the revision of 1891 all doubts were removed by the enactment that "the form of policy and insurance contract now in force in this state is continued until the insurance commissioner shall change it." Pub. St. c. 170, § 1. At the same time all the earlier statutory provisions, including the law of 1879 as to waiver, were re-enacted. There is no evidence of an intent to remove or modify the protection given to the insured, or to make the policy the controlling factor. On the contrary, the legislature expressly provided that, as between the policy and the provisions of Pub. St. c. 170,