ed the parties in interest are at variance, | quarter of all moneys I have in Savings bank. and inasmuch as they are unable to deter- I give her more so she will make a home for mine among themselves the legal questions my adopted children, one of them being feeraised they concur in asking the court for an ble-minded. opinion. "Third-To my son James Cook and his heirs I give and bequeath one fifth part of my building at 14 No. Main St. Prov. also one fifth part of the business carried on there also one fifth part of the stock, fixtures, all leases, and money in business bank account. I also give him all my carriages harness and automobiles. "Your petitioners further request that this honorable court will appoint guardians ad litem for the aforementioned minors, Charlotte I. Cook, Kate Cook, Williminer Cook, Ann Cook, Allison Cook, and Willie Collins, and that said guardians ad litem be authorized to join in this request, if they deem it advisable, in order that the property and es"Fourth-To my son Wm. Cook I give and tates of the said minors may be bound by the bequeath to him and his heirs one fifth part decision of this court upon the questions of my building at No. Main St. Prov. Also herein propounded. Respectfully submitted. one fifth part of the business carried on James Cook, Charlotte Cook Sayles, Administhere. trators with the Will Annexed of Williamtures and leases and business bank account. Also one fifth part of the stock fixCook. James Cook. Charlotte Cook Sayles. "Fifth-To my adopted daughter Charlotte William Cook. James Cook, Father and Next I. Cook, and her heirs I give and bequeath Friend of Allison Cook. Harry L. Collins. Father and Next Friend of Willie Collins. St. Prov. Also one fifth part of the business one fifth part of my building at 14 No. Main Charlotte I. Cook, by her guardian, Kate carried on there and also one fifth part of Cook. Kate Cook, Williminer Cook, and Ann the stock, fixtures and leases and money in Cook, by Their Mother and Next Friend, Kate Business bank account. I also give her my Cook. Kate Cook." diamond ring. I also give and bequeath to my adopted daughter Charlotte I. Cook and her heirs forever three (3) lots of land situated on the northerly side of Hilltop and Providence Avenues. Said lots are marked 34, 35 and 36 on the plat from 7 Grosvenor. "Sixth-To my daughter Kate Cook Col Exhibit A. Copy of Will of William Cook, of Prov. idence, R. I. "In the name of the Lord Amen already got five thousand dollars from me. "I William Cook of the City and County of Prov. in the State of R. I. being of law-lins I give the sum of ten dollars, she having ful age, of sound and disposing mind, calling to mind the frailty and uncertainty of life, and being desirous of disposing of that property which God has blessed me with, do make publish and declare this and this only, to be my last will and testament. "Seventh-To my daughter Janet Cook, I give the sum of ten dollars, she being in no need of my property. Cook and her heirs I give and bequeath three "Eighth-To my adopted daughter Kate lots of land on the southerly side of Hilltop Avenue Providence. Said lots are numbered 9-10-11 on the plat. "First-I give and bequeath to my, wife Kate Cook the use of my house and furniture and land not otherwise disposed of, as long as she lives. Said house and land are at 735 Smith Street, Prov. I also give and bequeath to her one fifth part of my building at 14 No. Main Street, Prov. Also I give her one fifth part of the business carried on there, also one fifth part of the stock, fixtures, leases and money in Business Bank Account. I also give her one half of all money I have in Savings Banks. "Second-I give and bequeath to my old-numbered 33-32 on the plat. est daughter Charlotte Cook Sayles and her heirs forever, my house and lands, not otherwise disposed of, at 735 Smith St. Providence, also the furniture in said house. Said property is to become hers at once but my wife to have sole use of property till her death. I also give and bequeath to my daughter and her heirs, one fifth part of my Building at 14 No. Main St. Prov. to be hers and hers forever. I also give her one fifth part of the business carried on there, also one fifth part of the stock, fixtures, stock, leases there and other places. Also one fifth part of money in "Ninth-To my adopted daughter Wellinmer Cook, I give and bequeath to her and her heirs three lots of land on Hilltop Avenue Prov. said lots are numbered 6-7-8 on the plat. "Tenth-To my adopted daughter An Cook I give and bequeath to her and her heirs two lots of land on the northerly side of Hilltop Avenue Providence, said lots being "Eleventh-To my grandchild Allison Cook and his heirs I give and bequeath two lots of land on the northerly side of Hilltop Avenue Providence said lots being numbered 30 and 31 on the plat. "Twelfth-To my grandson Willie Collins I give my gold watch and chain and my sword and guns and my books. "Thirteenth-I appoint the Treasurer of the Rhode Island Hospital Trust Co. bank to be executor of this my last will and I ask him to see that my grave is lined top bottom and sides with stone slabs. The money for of my Savings bank money before being di- by the statute aforesaid signify in writing vided. her nonacceptance of the provisions of the "In witness whereof I hereunto set my will, she is deemed to have accepted those hand and seal. provisions in lieu of her dower. [Seal.] "William Cook. "Joseph Delevgon. [Seal.] [Seal.] 1908." The case is brought under the provisions of Gen. Laws 1909, c. 289, § 20: "Parties having adversary interests in any question of the construction of any statute of this state, or of any will, deed, or other writing, or in any question of title or evidence of title to any real or personal estate contracted to be sold, or which is to be otherwise dealt with, or as to the parties to or the form of any deed or other instrument for carrying such contract into effect, or as to any matter or thing within the jurisdiction of a court of equity, may concur in stating such question in the form of a special case for the opinion of the Supreme Court; and executors, administrators, trustees, infants by their guardian or next friend, and married women, may concur in such statement; and the court may order any person having any interest therein to be summoned in and to be made party thereto; and the court, on hearing the case, may declare its opinion of the rights involved therein without administering any relief, and such declaration shall have the same effect as to all the parties before the court as if contained in a decree on original bill: Provided, that the court may decline to answer such questions as in its opinion it cannot properly decide." In our opinion the first and second questions must be answered in the affirmative. There is nothing in the will that is indicative of the testator's intention to give the real and personal property therein devised and bequeathed to his widow in addition to her dower interest in his real estate. On the contrary, the disposition made of his property by the terms of his will negatives such an intention. After the decease of William Cook, his widow had the right to elect whether she would enforce her right of dower in the real estate of her late husband or take under his will, under the provisions of Gen. Laws 1896, c. 203, § 21: "The widow of any testator, in whose will provision is made for said widow in lieu of her dower, shall, in case of her nonacceptance of such provision, signify the same in writing to the probate court within one year from the probate of the will." As Kate Cook, the widow of William Cook, did not within the time limited The third question is not susceptible of a A simple affirmative or negative answer. cardinal rule to be observed in the construction of wills is that the intention of the testator, in so far as it can be definitely ascertained, must govern. It is perfectly apparent from an inspection of the will in question that besides the other bequests made to his widow the testator desired her to have one half of all the money he had in savings banks, A we Our The answers herein before given render an answer to the fourth question unnecessary. Sufficient answers to the fifth, seventh, and eighth questions may be found upon examination of the case of Martin, Petitioner, 25 R. I., wherein at page 12 et seq., 54 Atl. 589, Mr. Justice Rogers has given the subject an adequate and exhaustive consideration. In answer to the sixth question we would say that the sum of $3,000 paid by way of compromise to the persons therein named may properly be considered as a part of the expenses of administration of the estate, and therefore should be paid with other like expenses and from the same sources. (83 Conn. 311) AVERY v. WHITE. (Supreme Court of Errors of Connecticut. April Term, 1910.) already recovered judgment in that action for the trees sued for in the suit at bar. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1804; Dec. Dig. § 950.*] 5. TRESPASS (§ 45*)-EVIDENCE-RELEVANCY. In an action for cutting timber on plaintiff's land, evidence as to the number of trees cut within six years on land lying some distance from that of plaintiff was irrelevant. [Ed. Note.-For other cases, see Trespass, Cent. Dig. § 116; Dec. Dig. § 45.*] Appeal from Court of Common Pleas, New London County; Charles B. Waller, Judge. Action by Sherwood G. Avery against Charles E. White. Judgment for plaintiff, and defendant appeals. Reversed. THAYER, J. This was an action brought on the 29th day of October, 1901, to recover 1. PLEADING (§ 236*)—AMENDMENT-DISCRE- for trees cut upon the plaintiff's land prior TION. Where an application to amend defendant's answer was not made until after the jury had been impaneled for trial, it was within the discretion of the court to deny it. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 601; Dec. Dig. § 236.*] 2. JUDGMENT (§ 606*)—RES JUDICATA-DIF-| FERENT CAUSES OF ACTION. Plaintiff, on October 29, 1901, sued to recover for trees cut from his land prior to that date, and on November 13th, following, brought another action against the same defendant for trees cut from the same land subsequent to October 28, 1901. Held that, the later case having been tried first and judgment recovered for plaintiff, such judgment was not for the same cause of action as stated in the complaint in the suit first filed, and was therefore no bar to a recovery therein. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1120; Dec. Dig. § 606.*] 3. WITNESSES (§ 379*) — CREDIBILITY-CONTRADICTION-EVIDENCE. Plaintiff, having sued for the recovery of trees alleged to have been cut from his land prior to October 28, 1901, later brought suit to recover for trees cut after that date, which, being first tried, resulted in a judgment for plaintiff for a substantial sum. Defendant admitted that he began to cut timber from certain tracts on October 22d, but did not reach plaintiff's land or cut any trees therefrom until October 29th, but that after that date he cut all the trees on plaintiff's land on the belief that they belonged to others, and that only 255 such trees were cut. Plaintiff, however, claimed that 215 trees were cut from his land prior to October 28th, and testified that he assisted in counting the trees. Held, that defendant was entitled to show, to discredit plaintiff as a witness, on his cross-examination, that on the former trial he testified that 455 trees had been cut from the land after October 28th. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1252; Dec. Dig. § 379.*] 4. JUDGMENT (§ 950*)—RES JUDICATA-PLEADING AND PROOF. Where, in an action for cutting trees, there was no issue raised as to the bar of a former judgment, evidence that on a prior trial plaintiff testified that subsequent to October 28, 1901, defendant had cut 455 trees from plaintiff's land, was inadmissible to show that plaintiff had to that date. On the 13th day of November following the plaintiff brought another action in the superior court against the same defendant for trees cut upon the same land subsequent to the 28th day of October, 1901. That action was tried several years ago and came before us on appeal in 1907. See Avery v. White, 79 Conn. 705, 66 Atl. 517. The plaintiff recovered a substantial judgment in that action. After the jury had been impaneled in the present case, on March 23, 1909, the defendant asked permission to amend his answer filed in June, 1902, by adding a third defense setting up the judgment in the superior court in bar of this action. The court refused the request as a matter within its discretion, but informed the defendant's counSel that he would be permitted to offer evidence to show that the former judgment, described in the proposed third defense, was between the same parties and for the same cause of action as the present suit, and if the court should become satisfied that they were it would permit the amendment. The de fendant having produced the file in the superior court case and offered evidence to prove that the parties therein were the same as in this, the court refused to permit the amendment to be filed. It was within the court's discretion to disallow the amendment when offered. The defendant had had sufficient time after the case went to judgment in the superior court to offer the proposed amendment and ask for its allowance prior to the assignment of the present case for trial and the impaneling of the jury. It was no abuse of the court's discretion, therefore, to deny the defendant's motion to amend had the court received no evidence as to the validity of the defense. But it appears from the complaints in the two cases that they are not The cutting for the same cause of action. complained of in the action in the superior court, as already stated, is of trees cut after the present action was brought. This action is for cutting trees on the plaintiff's land prior to October 29th, the date of the complaint. A recovery for trees cut subsequent to that date would be no bar to a recovery for those previously cut. The court therefore properly refused to permit the amendment to be filed after the defendant had introduced his evidence. The plaintiff's land upon which the cutting occurred adjoined a tract of land upon the south called the "Rogers tract" and upon the west a tract called the "Burgess tract." The defendant had purchased the standing timber on those two tracts prior to October, 1901. Upon the trial he claimed that he began to cut the timber on those tracts on October 22d and did not reach the plaintiff's land or cut any trees thereon until the 29th of October. He admitted that after that date he cut all the trees upon the plaintiff's lot in the belief that it was a part of the Rogers and Burgess land. He claimed, and offered witnesses who had counted the stumps to prove, that only 255 trees were cut upon the plaintiff's lot. The plaintiff claimed that 215 trees were cut upon his land by the defendant prior to October 28th. The plaintiff was called as a witness in his own behalf and testified that he had taken part in counting the trees so cut. The defendant, for the purpose of discrediting the witness and showing that his count was not correct, asked him upon crossexamination if he did not in the trial in the superior court testify that 455 trees had been cut upon the same land subsequent to the 28th of October. For the same purpose, and for the additional one of showing that in the superior court the plaintiff had already recovered for the trees sued for in this action, the defendant offered evidence to prove that upon the trial in the superior court the plain tiff testified that the defendant cut 455 trees upon the plaintiff's land subsequent to October 28th. This evidence was excluded. As the defendant admitted that he had cut 255 trees upon the plaintiff's land, the substantial issue between the parties was whether the trees or any of them were cut prior to October 29th. The plaintiff claimed that they were. The defendant claimed the contrary. Anything which tended to discredit the plaintiff or show that he included in his count trees which were not cut upon his land was proper cross-examination. If the jury believed the defendant's evidence that only 255 trees were cut upon the plaintiff's lot, the fact that he had testified in the former action that 455 trees were cut upon it subsequent to October 28th would tend to discredit him as a witness. It would show that in the two actions he was claiming, and testifying in support of the claim, that 670 trees had been cut upon his lot. This would tend to convince the jury either that he had included in his count trees cut upon the adjoining land, or had made some other mistake in his count, or that he was willfully testifying falsely. If he was mistaken in his count or included in it trees cut upon other land than his own, the trees sued for in this action might have been among those erroneously counted. The offered evidence was therefore competent upon cross-examination for the purposes indicated. It was also competent to prove the same facts by independent witnesses to discredit the plaintiff's testimony. The evidence was therefore improperly excluded when offered for these purposes. It was not admissible for the other purpose for which it was offered, namely, to show that the plaintiff had already recovered judgment for the trees sued for in this action. No such issue is raised by the pleadings, and the evidence when offered for this purpose was properly excluded. The evidence of Pitcher and Chapman, witnesses called by the defendant, was properly excluded. The former was asked as to the number of trees cut within six years on land east of the easterly line of the claimed cutting, and the latter was asked as to the number of trees cut within the same period upon land lying west of a virgin forest which was claimed by the plaintiff to lie some distance east of the east line of the cutting. Answers to these inquiries could in no way aid the jury in determining the issues before them, and were therefore irrelevant and immaterial. There is error, and a new trial is granted. JUDGES (8 46*) - DISQUALIFICATION RELA TION TO ATTORNEY-"PARTY." Gen. St. 1902, § 496, provides that when there shall be so near a relationship between any judge and any party in any proceeding before him, as between father and son, brothers, uncle or nephew by nature or marriage, etc., he shall be disqualified. Held, that the word "party" does not mean any one who has a pecuniary interest in the result of the suit, and did not include an attorney for one of the parties to the record, and especially was a judge not disqualified by the fact that his brother was one of the entered attorneys for the plaintiffs, where he withdrew his appearance on the day the case was called for trial and took no part therein. [Ed. Note.-For other cases, see Judges, Cent. Dig. § 213; Dec. Dig. § 46.* For other definitions, see Words and Phrases, vol. 6, pp. 5203-5213.] Appeal from District Court of Waterbury; Frederick M. Peasley, Judge. Action by John Casmento and others against the Barlow Bros. Company. Judgment for plaintiffs, and defendant appeals. Affirmed. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes Bronson & Lewis, for appellant. Terrence | est in the result of the suit. Clyma v. KenF. Carmody, for appellees. nedy, 64 Conn. 318, 29 Atl. 539, 42 Am. St. Rep. 194. RORABACK, J. This action was brought to the district court of Waterbury on the first Tuseday of March, 1909, when one Henry W. Minor and James A. Peasley were entered as attorneys for the plaintiffs. On November 4, 1909, Peasley withdrew his appearance, and on the same day Terrence F. Carmody entered as attorney for the plaintiffs. The trial took place on November 5, 1909. An attorney for one of the parties to the record is not a “party” within the meaning of the statute. There is no error. Other Judges concurred. (83 Conn. 342) 1. WILLS (8 506*)-"LEGAL HEIRS." [Ed. Note. For other cases, see Wills, Cent. For other definitions, see Words and Phrases, vol. 5, pp. 4063, 4064.] - James A. Peasley is an attorney at law, and is a brother of Judge Peasley who presided at the trial of this case. James A. Peasley is about nine years younger than Judge Peasley. They are in no way associated in the practice of law, having independ-Dig. § 1090; Dec. Dig. § 506.* ent offices on different streets in Waterbury. During a portion of the first day of the trial James A. Peasley was present in the courtroom but took no part in the trial. He occupied a chair during this time in a portion of the courtroom usually occupied by witnesses. Before beginning the trial, counsel for the defendant objected to proceeding be fore said Judge Peasley, on the ground that he was disqualified by reason of his relationship to James A. Peasley. Judge Peasley overruled this objection, and proceeded with the trial, the defendant excepting. Judge Peasley had no interest in the outcome of this action. It did not appear that James A. Peasley at the time of the trial had any interest in the result of the litigation. 2. WILLS (§ 511*) - CONSTRUCTION "LEGAL REPRESENTATIVE." The only ground of appeal is that the court erred in overruling the claim that Judge Peasley was legally disqualified to try the case. Section 496 of the General Statutes of 1902 provides that: "When there shall be so near a relationship between any judge or justice of peace and any party in any proceeding in court before him, as between father and son, brothers or uncle or nephew, by nature or marriage, or landlord and tenant; or when any judge or justice of the peace may be liable to contribute to the damages, costs, or expenses of any such proceeding, or when he may receive a direct pecuniary benefit by the determination thereof-he shall be disqualified to act, except as hereinafter provided." Construing the word "party," used in the statute, so that it would include an attorney | or any one having a pecuniary interest in the result of the suit, the defendant has no reasonable ground for complaint. The record discloses that, when the case was tried before his brother, James A. Peasley had disappeared from the case, and it does not appear that he had any interest in the action at that time. The statute upon this subject speaks of "any party in any proceeding in court before him." The word "party" should not be construed in such a broad sense as to include every one who has a pecuniary inter Testator, after bequeathing one half of his half be distributed among his legal heirs and estate to his wife, directed that the remaining legal representatives according to the laws of distribution. Held, that the term "legal representatives" was without precise determinate meaning, and was used merely to indicate that testator' intended that all who would take under the statute of distribution were entitled to share under the term "legal heirs," and hence did not include children of testator's first cousins who died before testator, they not being entitled to distribution in intestacy, as provided by Gen. St. 1902, § 398. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1107; Dec. Dig. § 511.* For other definitions, see Words and Phrases, vol. 5, pp. 4070-4079; vol. 8, p. 7704.] Appeal from Superior Court, New Haven County; Howard J. Curtis, Judge. Judicial settlement of the accounts of Da vid R. Alling, as executor of the will of George H. Alling, deceased. From an order of the superior court, allowing the account showing payments by the executor, pursuant to a decree and return of distribution of the estate, R. Charles Dickerman and others ap peal. Affirmed. Watrous & Day, for appellants. Living. stone W. Cleaveland and Clarence W. Bron. son, for appellees. RORABACK, J. George H. Alling died testate without issue. He left no parents, brothers or sisters, or their representatives, no grandparents, or great-grandparents, and no uncles or aunts. He left a widow, 4 first cousins, and 32 descendants of first cousins. His will, dated November 13, 1906, and admitted to probate in February, 1908, reads as follows: "First: I give and bequeath to my beloved wife Esther Alling my house and lot estimated to be three acres of land situated in said town of Orange at the corner of Milford Turnpike and Campbell Avenue being the same where I now live, and also the lot ad |