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(146 N.E.) cember 28, 1910, constitutes a valid gift for to any will her husband might execute in the benefit of the corporations named in the the future, her reference was to "my said will of her husband. The heirs at law con- husband's will" and to "the trust established tend that the residue of her estate belongs to by my said husband's will relating to the resthem.

idue of his estate." This will of her hus[1, 2] The intention of Mrs. Estabrook, as band's was admitted to probate in September, disclosed in her will in view of all the cir- 1919. Mrs. Estabrook did not die until 1922; cumstances, must prevail unless inconsistent she made no changes in her will after his with the rules of law. McCurdy v. McCallum, death. We need not, therefore, consider what 186 Mass. 464, 469, 72 N. E. 75; Jewett v. Jew- construction should be given to her will, if ett, 200 Mass. 310, 317, 86 N. E. 308; Woman's her husband had made another will after Seaman's Friend Society v. Boston Young 1910. This event did not happen and the inWomen's Christian Assoc., 240 Mass. 521, 531, tention and purpose of Mrs. Estabrook should 134 N. E. 601; Davis v. Clapp, 242 Mass. 139, be made effectual to carry out the end she 136 N. E. 185. Mrs. Estabrook intended that had in view. See Loring v. Blake, 98 Mass. the residue of her estate should go to the 253, 260; Gray v. Whittemore, 192 Mass. 367, charities mentioned in the eighth clause of 378, 379, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, her husband's will. When her will of 1910 116 Am. St. Rep. 246. was made, her husband's will with the codi- Curley v. Lynch, 206 Mass. 289, 92 N. E. cils had been executed. She appointed as her 429, relied on by the next of kin, is distinexecutors and trustees, in the fourth clause guishable. In that case the testator gave of her will, Frank B. Bemis, Stedman But- to his wife a power of appointment. She died trick and Frederic R. Galloupe, "who are nam- January 23, 1909, three days before her hused as executors and trustees under my said band. Her will was made January 15, 1909, husband's will." In this will, as well as in her husband's will was made January 19, the will of 1905, the testatrix provided that 1909. When he made his will he had already the residue of her estate should be distrib- read his wife's will and expressed satisfacuted as the residue of her husband's estate tion with it. It was held that the provision was to be distributed on her death. Her will in the husband's will for the wife was of no and the will of her husband were executed effect, because of her decease in his lifetime; on the same date, in the year 1905. The same that the power of appointment fell with the persons witnessed both instruments. And the life estate. It was also held that he might executors and trustees appointed by him have incorporated into his own will the prowere selected by her to serve as the trustees visions made in his wife's will, if he had so and executors under her will. Her reference desired, but he failed to do this. He made in the third clause of the will “to those per- no reference in terms to a particular will, sons who shall be appointed trustees" is noth- and did not seek to incorporate into his will ing more than a recognition of the fact that the specific provisions contained in her will. the trustees named in the fourth clause were in the case at bar there was no power of apto be appointed in the future. Her reference pointment given by the testatrix to her husto the trust to be disposed of "as shall be band. If he died before her, the property provided," and the other language looking to was to go as designated in his will, then in the future, are not sufficient to show that she existence, which by reference was incorporathad in mind some future will to be made by ed into her will. Atwood v. Rhode Island him. She had in mind this will, then in ex- Hospital Trust Co. (C. C. A.) 275 F. 513, is istence, to be effective on the death of the not in conflict with what is here decided. testator. In our opinion, Mrs. Estabrook in- Mrs. Estabrook had no power to change the tended to incorporate into her will the eighth provisions in her husband's will; she referclause of her husband's will, as a part of red to the list of charities mentioned therein, her will, and a valid trust was therefore es- which remained unchanged after the executablished to be administered as indicated in tion of the will; and the will had already his will.

been admitted to probate when she died. Sea [3] The will of Mr. Estabrook was in exist. Damon v. Bibber, 135 Mass. 458; Matter of ence in 1910 when the testatrix's will was Piffard, 111 N. Y. 410, 18 N. E. 718, 2 L. R. A. executed. His will was sufficiently identified, 193. and it could be incorporated into her will. [4] We do not agree with the contention of “A testator may refer expressly to a paper the Massachusetts Homeopathic Hospital already executed, and describe it with such that it is to receive the entire residue of Mrs. particularity as to incorporate it virtually in- Estabrook's estate disposed of by the third to the will.” Newton v. Seaman's Friend clause of her will. In that clause the residue Society, 130 Mass. 91, 93, 39 Am. Rep. 433; | was “to be disposed of to the same persons Thayer v. Wellington, 9 Allen, 283, 85 Am. or corporations, in the same manner, and acDec. 753; Taft v. Stearns, 234 Mass. 273, cording to the same terms, as shall be provid125 N. E. 570. She had in mind and referred ed for the trust established by my said hus. to an existing will of her husband, a will of band's will relating to the residue of his eswhich she had knowledge. She did not refer tate." She did not mean to add her gift to

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the residue of his estate; she created a trust, ceased candidate was elected to office was ag. fund of her own, independent of that estab- serting impossibility; “persons," within statute, lished by her husband, though administered meaning living human beings. by the same persons, and distributed to the [Ed. Note.-For other definitions, see Words same persons and corporations. Her trust is and Phrases, First and Second Series, Person.) a “referential” trust and is to be carried out 4. Elections en 239–Petitioner held to have as she directed “to the same persons or cor been elected representative of General Court porations, in the same manner, and accord by plurality of votes susceptible of being

counted. ing to the same terms" as her husband directed. Her trust was separate and distinct

Where regular candidate for representa. from the trust fund created by her husband. tive in General Court died day preceding elecWe therefore answer the first prayer of the tion, and fact of death was generally known

throughout district, and petitioner became canpetitioners, whether the residuary clause of didate, all voters at polls being apprised of reg. Mrs. Estabrook's will constitutes a valid gift ular candidate's death, votes cast for latter for the benefit of the corporations named in were nullity and could not be counted, and petithe will of her husband, in the affirmative. tioner, having received next largest number of

[5] There is no necessity that the trust votes susceptible of count, was duly elected. fund under Mrs. Estabrook's will should be 5. Mandamus 74(5) --Duty of election com. transferred from her executors to themselves missioners to issue certificate of election held as trustees. As executors of her will they ministerial, as distinguished from political. should pay and distribute the residue of her The duties of boards of election commissionestate among the corporations named in the ers, under G. L. c. 54, § 128, to certify election residuary clause of her husband's will, and of candidates, is ministerial or administrative, in the same proportion as they take under his as distinguished from political. will. Bowditch v. Andrew, 8 Allen, 339; 6. Mandamus cm3 (1)-Performance of minSears v. Choate, 146 Mass. 395, 15 N. E. 786, isterial duty compelled by mandamus. 4 Am. St. Rep. 320.

It is function of mandamus to compel perThe question of the admissibility of certain formance of ministerial duties by public offievidence offered we do not discuss, because, cers, where no other remedy is provided. in our opinion, without considering this evi- 7. Elections C43_Statute providing for new dence the testatrix intended to refer to the election held inapplicable, where complete existing will of her husband.

election was held. Costs between solicitor and client are to be Duty of boards of election commissioners. in the discretion of the single justice. The under G. L. c. 54, § 141, where no. election has executors of Mrs. Estabrook's will are in- resulted, to certify such fact to secretary of structed to distribute the residue of her es. commonwealth, in order that new election may tate to the same persons or corporations men- tion was held.

be held, is inapplicable, where complete electioned in the residuary clause of her husband's will, they to take in the same manner 8. Appeal and error 781(4)-Certificate of and according to the same terms as they take

election having genuine value to petitioner, under the residuary clause of his will.

question raised thereon was not moot. Ordered accordingly.

In view of G. L. c. 3, § 4, providing that person having certificate or other evidence of election as representative may present certificate to presiding officer, who shall communicate it

to House of Representatives for action thereon, MADDEN V. BOARD OF ELECTION

question raised after organization of house, on COM'RS OF CITY OF BOS.

failure of board of election commissioners to TON et al.

certify duly elected candidate, is not moot; cer

tificate having real value to petitioner. (Supreme Judicial Court of Massachusetts. Suffolk. Jan, 30, 1925.)

9. Constitutional law Om70(1)-Granting man.

damus to compel issuance of certificate of 1. Elections Emo 174-One dying before election election held not invasive of rights of House

cannot be candidate for office or elected of Representatives. thereto.

Where petitioner was entitled to certificate One who has died before election cannot be of election to General Court, mandamus requira candidate for or elected to office.

ing election commissioners to certify his elec

tion does not trench on prerogative vested ex2. Elections C239—Valid votes cannot be cast clusively in House of Representatives by Const. for one no longer alive.

pt. 2, c. 1, § 3, art. 10, to be judge of returns, Valid votes for election to office cannot be elections, and qualifications of its own members. cast for one who is no longer alive.

10. Mandamusemw74(5)-Issuance, of certifi3. Elections w2651/2-Certifying deceased as cate of election compelled through mandamus.

"person" elected held assertion of impossi Where election commissioners failed to isbility.

sue election certificate, to which petitioner was In view of G. L. c. 54, $ 128, certification entitled, it was function of court to require perby board of election commissioners that de- formance of that duty through mandamus.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(146 N.E.) Mandamus by William Madden against the elected" as representatives to the General Board of Election Commissioners of the City Court from the Fifteenth Suffolk district. of Boston and others to compel respondents It is plain from these agreed facts that in to certify petitioner's election to office. Per- general the voters of the district knew and emptory writ to issue.

those who went to the polls had in addition A. D. Hill and F. Adams, both of Boston, specific notice that William A. Canty had for petitioner,

died on the day before election. Ile had

ceased to exist before election day. He had RUGG, C.'J. This is a petition for a writ vanished as a possible participant in human of mandamus to compel the respondents to affairs. certify the election of the petitioner to the

[1, 2] One who has died before election office of a representative in the General | cannot be a candidate for an office or elected Court for the Fifteenth Suffolk district. The to an office. Valid votes for election to an case is submitted on agreed facts. They

office cannot be cast for one who is no longer show that the voters of the Fifteenth Suf- alive. It is equivalent to throwing away folk district were entitled at the election on a vote knowingly to cast it for one who has

It November 4, 1924, to elect two representa- passed from earth to the great beyond. tives to the General Court. The names of

is of no more effect than to deposit a blank William A. Canty and Joseph M. Ward and ballot, or one marked with a fictitious or

historic name. This is not a doubtful quesno others were printed on the official ballot, each name being followed by the word “Dem- tion. It requires no discussion of legal prinocratic." William A. Canty died early in

n is the morning of the day before election. That It is not open to debate. It is obvious to

to convince the intelligence. It is axiomatic. fact was generally known throughout the district and notices of his death were prom

everybody. inently printed in the newspapers of that

[3] It is equally plain that the respondents

were doing a vain thing and asserting an day. The specimen annexed to the record shows that there was headline announcement impossibility in certifying that William A. covering six of the eight columns of the first Canty was elected to the office of representa

tive in the General Court. They were repage of the newspaper and that an obituary billed more than one-fourth of a column of quired to make a certificate to the secretary

of the commonwealth of “election of the perthe first page, running onto a later page.

sons appearing to be elected.” G. L. c. 54, 8 On election day stickers carrying the name

128. The word "persons” means living huof the petitioner were distributed. He was

man beings. Sawyer v. Mackie, 149 Mass. a member of the Democratic party and was 269, 21 N. E. 307. The respondents ought generally known to be such by the voters and to have stated in their certificate to the secresidents of said district. The supporters retary the fact as to the decease of Mr. Canof the petitioner, knowing that the name ty before the day of election as they knew of William A. Canty was still on the official

it indisputably to be. ballot and for the purpose of making certain

[4] The question is whether the election that no votes should be cast for him in ignor- for the second representative from the Fifance of the fact that he was not living, sta- teenth Suffolk district was a nullity or tioned two persons near each of the 11 poll- whether the petitioner was elected. It was ing places in the district. These persons said in the opinion in People ex rel. Furman were instructed to inform each voter ap- v. Clute, 50 N. Y. 451, 461 (10 Am, Rep. 508): proaching the polling booth of the fact that William A. Canty had died. These persons

“It is the theory and the general practice of would testify, that each voter going to the our government that the candidate who has but polls was so informed. The result of the a minority of the legal votes cast does not be

come a duly elected officer, But it is also the balloting was that 5,317 votes were cast for theory and practice of our government, that a Joseph M. Ward, 2,942 votes for William A. minority of the whole body of qualified electors Canty, 1,165 votes for the petitioner, and a may elect to an office, when a majority of that much smaller number of votes for several body refuse or decline to vote for any one for others. The petitioner, who contends that that office. Those of them who are absent from Joseph M. Ward and himself were elected the polls, in theory and practical result are as

sumed to assent to the action of those who go representatives, caused the respondents to

to the polls; and those who go to the polls, and be notified of the fact that William A. Canty who do not vote for any candidate for an ofdied on November 3, 1924, the day before fice, are bound by the result of the action of election. The respondents, knowing of the those who do; and those who go to the polls fact of Mr. Canty's death, refused to certify and who vote for a person for an office, if for that the petitioner was elected, but did file any valid reason their votes are as if no votes, a certificate with the secretary of the com- they also are bound by the result of the action monwealth to the effect that at the election of those whose votes are valid and of effect. on the 4th day of November, 1924, “William As if, in voting for an office to which one only

can be elected, two are voted for, and their A. Canty, 430 Centre St., Boston, and Jos- names appear together on the ballot, the ballot eph M. Ward, 38 School St., Boston, were so far is lost. The votes are as if for a dead

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man or for no man. They are thrown away; 1 second largest number of votes cast for any and those who cast them are to be held as in- candidate capable of being voted for. He tending to throw them away, and not to vote

was elected by a plurality of the votes susfor any person capable of the office. And then ceptible of being counted under the law. Arhe who receives the highest number of earnest valid ballots, is the one chosen to the office. I ticle 14 of Amendments to the Constitution.

* They who, knowing that a person is in- Any other conclusion might inconceivable cireligible to office by reason of any disqualifica- cumstances enable a cohesive and perverse tion, persistently give their ballots for him, do minority to work much mischief with electhrow away their votes, and are to be held tions. This conclusion is supported directly as meaning not to vote for any one for that of- by the well reasoned cases of State ex rel. fice.

Bancroft v. Frear, 144 Wis. 79, 128 N. W. At page 466:

1068, 140 Am. St. Rep. 992, and Gulick v. "We think that the rule is this: the existence New, 14 Ind. 93, 77 Am. Dec. 49, and by the of the fact which disqualifies, and of the law principle of People ex rel. Furman v. Clute, which makes that fact operate to disqualify, 50 N. Y. 451, 10 Am. Rep. 508, already cited, must be brought home so closely and so clearly and of Gosling v. Veley, 7 Q. B. 406; Reg. v. to the knowledge or notice of the elector, as Coaks, 3 El. & Bl. 249; Drinkwater v. Deakthat to give his vote therewith indicates an in- | in, L. R. 9 C. P. 626; Beresford-Hope v. tent to waste it."

Lady Sandhurst, 23 Q. B. D. 79; State ex

rel. Clawson v. Bell, 169 Ind. 61, 82 N. E. This is a succinct and clear statement of 69, 13 L. R. A. (N. S.) 1013, 124 Am. St. Rep. the law. Amplification will not elucidate it. 203 and cases there reviewed. See 9 R. C. It is precisely applicable to the facts here L. 1126, and cases there collected. It is disclosed. It is agreed that the death of Mr. contrary to the principle of Sheridan v. St. Canty on November 3, 1924, was on that day Louis, 183 Mo. 25, 81 S. W. 1082, 2 Ann. Cas. generally brought home to the knowledge of 480 which relies in part on State v. Walsh, the voters of the Fifteenth Suffolk district. 7 Mo. App. 142. That is a district in the city of Boston,

There are numerous decisions, where a where numerous daily papers are printed and candidate has been ineligible, or has died widely circulated. The attention of every late on election day, and the voters did not voter who went to the polls on election day appear to have exact knowledge as to the was directed specifically to the fact of the disqualifying facts, in which the election has death of Mr. Canty. Therefore there is no been declared void, and the candidate reroom for doubt that the votes nominally ceiving the next largest number of votes has cast for Mr. Canty were deposited in the been denied election, We express no opin. ballot box with the knowledge that he had ion upon such facts. The present decision is died the day before the election day. The of course confined to the issues presented motives of those who thus cast ballots are upon this record. In some of those decisions not revealed on this record. We assume that somewhat broad language has been used. they were unėxceptional as humane senti- | But the facts of all those cases are so difments. It may have been done as a tribute ferent from those in the case at bar that it of respect to his memory or as some expres- is not necessary to review them. They are sion of sorrow for his decease. Elections

collected in a foot note, 1 are not held for any such purpose. Purity

[5, 6] It is apparent that all the pertinent of motive cannot clothe with vitality an act facts were seasonably known to the respond. which is in its very nature a nullity. Elec

ents. Since the votes cast for William A. tions are held at great public expense for the Canty must be treated as nullities, conscioussingle purpose of selecting those who are to ly deposited as such by the voters who put hold public office and of enabling voters to them in the ballot box, the petitioner, having express their preference as to questions con- ! received the next largest number of votes, cerning government lawfully placed upon the

was elected, together with Mr. Ward. It ballot. Those who attempt to use the machinery of election to any other end, what.

1 Chandler v. Wartman, 6 N. J. Law, J. 301 ; Subever it may be, are acting contrary to the lett v. Bedwell, 47 Miss. 266, 12 Am. Rep. 338 ; Crafwhole theory of elections. They cannot com

ford v. Molitor, 23 Mich. 341 ; Gardner v. Burke, 61

Neb. 534, 85 N. W. 541; Haggard v. People, 130 III. plain if those who resort to the polls and App. 211'; Fish v. Collens, 21 La. Ann. 289; McKeeact in conformity to the theory and right ver v. Cameron, 179 Wis. 405, 192 N. W. 374; Compractice of elections accomplish the aim of monwealth_v. Cluley, 56 Pa. 270, 94 Am. Dec. 75; the election by choosing the officers required Heald Payson, 110 Me. 204, 85 A. 576; Sanders

v. Rice, 41 R. I. 127, 102 A. 914, L. R. A. 1918C, 1153 ; by law to be chosen,

Heney v. Jordan, 179 Cal. 24, 175 P. 402; Swepston No one would contend, if the votes cast for v. Barton, 39 Ark. 549; Dryden v. Swinburne, 20 Mr. Canty had been blank ballots or had con

W. Va. 89; State v. McGeary, 69 Vt. 461, 38 A. 165,

44 L. R. A. 446; Dobbs v. Buford, 128 Ga. 483, 57 S. tained three names for representative proper- E. 777, 11 Ann. Cas. 117; Batterton v. Fuller, 6 s. ly marked, two only being capable of elec- D. 257, 60 N. W. 1071 ; Woll v. Jensen, 36 N. D. 250, tion, that the petitioner would not have been 162 N. W. 403, Ann. Cas. 1918B, 982; Barnum v. Guelected. The same result follows on the facts man, 27 Minn, 466, 8 N. W. 375, 38 Am. Rep. 304.

Bowker et al., Petitioners, Loring & Russell Elechere disclosed. The petitioner received the ltion Cases in Massachusetts, 282, and note, page 285.


(146 N.E.) follows that it was the duty of the respond- [9, 10) The decision of this case affects ents under G. L. c. 54, $ 128, to certify the merely the right of the petitioner to the cer. election of the petitioner as one of the rep- tificate. This adjudication does not trench resentatives to the General Court from the in any degree upon the constitutional preFifteenth Suffolk district. In view of the rogative vested exclusively in the House of facts known by the respondents, it was their Representatives by part 2, c. 1, § 3, art. 10, ministerial duty to issue the certificate. It of the Constitution to be the "judge of the is an appropriate function of the writ of man- returns, elections, and qualifications of its damus to compel the performance of minis- own members.” There can be no invasion terial duties by public officers where no oth of that field. Dinan v. Swig, 223 Mass. 516, er remedy is provided. Flanders v. Roberts, 112 N. E. 91. But the petitioner is entitled 182 Mass. 524, 529, 530, 65 N. E. 902; Brew- to the certificate of election on the facts ster v. Sherman, 195 Mass. 222, 225, 80 N. E. here disclosed. The respondents in the ex821, 11 Ann. Cas. 417; Attorney General v. ercise of the statutory duty imposed on them Apportionment Commissioners, 224 Mass. ought to certify to that election. It is the 598, 609, 610, 113 N. E. 581 ; Mansfield v. Sec- function of the court through the writ of retary of the Commonwealth, 228 Mass. 262, mandamus to require the performance of 117 N. E. 311; Andrews v. Board of Regis- that duty. We go no further than that. trars of Voters, 246 Mass. 572, 574, 141 N. E. Peremptory writ of mandamus to issue as 507. The duty of the respondents upon the prayed for. facts found was ministerial or administrative, as distinguished from political. Hence decisions like Fitzgerald v. Mayor of Boston, 220 Mass. 503, 108 N. E. 355, are inapposite.

PORTAGE MARKETS CO. V. GEORGE. [7] If no election had resulted on the 4th

(No. 18480.), of November, it would have been the duty of the respondents so to certify to the secre- (Supreme Court of Ohio. Dec. 23, 1924.) tary of the commonwealth, in order that a new election might have been held on the 4th

(Syllabus by the Court.) Monday of November. G. L. C. 54, § 141. 1. Appeal and error Om 1001(1) - Requested This provision of law is inapplicable because, special verdict, supported by evidence, not as already shown, a complete election was

set aside. held.

A special verdict, returned at the request [8] The House of Representatives of the of a party upon issues joined in a civil action, General Court had already assembled and will not be set aside, where there is competent organized before this case was argued. It evidence to sustain the same. is not, however, too late for the issuance of 2. Food 25–Violation of food law by sale a proper certificate to the petitioner. This of unwholesome meat negligence per se. is not an instance of the possibility of two

The violation of the pure food laws of this outstanding certificates held by different per- state by the sale of unwholesome meat is negsons. In no right sense has a certificate is- ligence per se, and may be the basis of resued to William A. Canty. The act of the covery for damages by the user of said unrespondents in going through the form of wholesome meat, who suffers injury proximateissuing such certificate was an utter nullity. ly resulting therefrom, provided the user is Of course there was no delivery of it to him. not himself guilty of negligence in the care,

preparation, cooking, or in any other manner It is provided by G. L. C. 3, § 4, that:

which contributes directly to his injury. Allen “A person having a certificate or other docu- 1139, 46 W. L. B. 208, and Schell v. DuBois,

v. Marvin, Adm'r, 64 Ohio St. 608, 61 N. E. mentary evidence of his election as a represen- Adm'r, 94 Ohio St. 93, 113 N. E. 664, approved tative who is not named on said lists may,


and followed. the house has been called to order, present such certificate or evidence to the presiding officer, 3. Food On 25–Intent to violate food law and or to the speaker if one has been chosen, who

knowledge of unwholesomeness immaterial, shall communicate the same to the House for

In an action for damages against a retail its action thereon; but such person shall not take a seat as a member until permitted by the meat vendor, growing out of the sale of unHouse."

wholesome veal in violation of the pure food laws of this state, it is not error for the court

to charge the jury: "Whether or not the de. The manifest purpose of this provision is fendant intended to violate the law does not to permit an elected member to present a

make any difference. Whether the defendant certificate of election after the organization or its servant knew that the veal was unwholeof the House, if for any reason he did not some, if it was unwholesome at the time it was receive it earlier. Therefore the case at bar violate the law is no defense to the defendant.

sold, makes no difference. Lack of intent to is not moot; it is real. The certificate has the defendant's ignorance of the condition of a genuine value now to the petitioner. the veal at the time it was sold is no defense."

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