Pearson v. City of Portland.

tiff purchased the note before maturity for value, that would be such a transaction.

Exceptions sustained.

APPLETON, Ch. J., WALTON, DANFORTH, VIRGIN, and LIFBEY, JJ., concurred.

PEARSON V. CITY OF PORTLAND.

(69 Me. 278.)

Constitutional law-"equal protection of laws."

A statute providing that no person shall recover damages from a municipality for an injury from a defect in a highway, unless he resides in a country where similar injuries constitute a like cause of action, is unconstitutional.

A

CTION by a resident of Cuba for personal injury by a defective way. The opinion states the point. The plaintiff had a verdict below.

S. C. Strout and H. W. Gage, for plaintiffs.

H. B. Cleaves, city solicitor, for defendants. The legislature can exercise all power not prohibited. People v. Flagg, 46 N. Y. 401. Charters granted cities may directly or by implication exclude the general laws of the State, and peculiar and exceptional regulations may be made applicable to particular portions only and still be valid. Nathaniel Goddard, petitioner, 16 Pick. 504; Commonwealth v. Patch, 97 Mass. 222; City of St. Louis v. Weber, 44 Mo. 547. The Constitution of the State in conferring the legislative power has established such prohibitions as the people see fit to impose. In ascertaining the powers of the legislature under the Consti tution we look not to what the instrument authorizes to be done, but to what is prohibited. McMillen v. Lee, 6 Clark (Iowa), 391. It is only necessary that the law should be uniform, and its effect the same upon all persons standing in the same category. Waterville v. Commissioners, 59 Me. 80; Smith v. Judge, 17 Cal. 547. Whether an enactment is reasonable or for the benefit of the people it is for the legislature alone to decide. Moore v. Veazie, 32 Mc. 343. This State law does not come within the class of those

Pearson v. City of Portland.

privileges and immunities guaranteed by amendment, article 14 United States Constitution. Corfield v. Coryell, 4 Wash. C. C. 380; Abbott v. Bailey, 6 Pick. 92; Connor v. Elliot, 18 How. 591; Ward v. Maryland, 12 Wall. 418; Lemmon v. People, 26 Barb. 270; 20 N. Y. 562; Crandall v. State, 10 Conn. 340; Butler v. Farnsworth, 4 Wash. C. C. 101; State v. Medbury, 3 R. I. 138; People v. Imlay, 20 Barb. 68; Ducat v. Chicago, 48 Ill. 172; Cincinnati Health Association v. Rosenthal, 55 id. 85; Haney v. Marshall, 9 Md. 194.

WALTON, J. In 1872 the legislature of this State enacted the following statute: "No person shall recover of any city or town in this State damage for injury to person or property, which damage is claimed to have been done in consequence of any defect, or want of repair, or sufficient railing, in any highway, townway, causeway or bridge, provided the said damage be done to or claimed by any person who was, at the time said damage was done, a resident of any country where damage done under similar circumstances is not recoverable by the laws of said country." Act 1872, ch. 34.

The only question we find it necessary to consider is whether this act is constitutional. We think it is not. It is in conflict with the fourteenth amendment of the United States Constitution, which declares, among other things, that no State shall "deny to any per son within its jurisdiction the equal protection of the laws." By the general statutes in force in this State at the time of the passage of this act (and still in force), every person sustaining an injury, in person or property, through any defect, or want of repair, in any highway, townway, causeway or bridge, could recover for the same, in an action on the case of the town, city or county whose duty it was to keep the way in repair. R. S., ch. 18, § 65. This is a protective law. It guards the traveler against injuries, by making towns and cities more careful to keep their ways in repair, and shields him from loss in case he is injured through their negligence in not keeping them in repair. And it is universal in its application. It protects every one alike. The act of 1872 undertakes to destroy this equality of protection. It declares in effect that one class of persons shall not be thus protected; that if they happen to be residents of a country where no shnilar protection exists, they must travel in this State at their peril, and without that protection which the law affords to all others. They may be citizens of the United States and of this State, and within its jurisdiction at the time of injury; still, they are denied

Blaisdell v. Hight.

redress, denied "the equal protection of the laws," on account of the condition of the law of a foreign country, for which they may be no more responsible than they are for the color of their eyes or the color of their skins. The denial might as well be based on race or color as upon the law of a foreign country; for the parties to be affected by it may be as powerless to change the one as the other. The general statute may undoubtedly be repealed; but the court is of opinion that while it remains in force for the protection of one class of persons within the jurisdiction of the State, it must remain in force for the protection of all others similarly situated.

The plaintiff was within the jurisdiction of the State at the time of her injury. She has established her right to recover for it, unless the act of 1872 is a bar. For the reasons above stated, the court is of opinion that it is not a bar.

Judgment on the verdict.

APPLETON, Ch. J., BARROWS, VIRGIN and LIBBEY, JJ., concurred

BLAISDELL V. HIGHT.

(69 Me. 306.)

Will-devise-subsequently acquired lands.

A devise of all the testator's real estate in S., and the residue of his "personal estate and possessions of whatever kind or name," does not cover land in another place, many years subsequently descending to the testator.

E'

JECTMENT. The lands in question were claimed by the plaintiff as heir of Alexander Barnard. The defendant claimed under his will. The opinion states the other facts.

S. S. Brown, for plaintiff.

E. F. Pillsbury, for defendant. The will indicated that the testa tor intended to make a full disposition of his property and ought to receive that construction. R. S., ch. 74, § 5; 2 Redf. Wills, 116; Brimmer v. Sohier, 1 Cush. 118; Winchester v. Forster, 3 id. 366; Fisk v. Keene, 35 Me. 349; Deering v. Adams, 37 id. 264; Cotton v Smithwick, 66 id. 360. The words "situate in Sidney" are merely words of description and not limitation. The concluding words

Blaisdell v. Hight.

"and possessions of whatever name or kind" show an intention to dispose of everything not previously devised, and this general form of expression is sufficient to convey the estate. Hopewell v. Ackland, 1 Salk. 239; Wilce v. Wilce, 7 Bing. 664, and cases there and before cited.

PETERS, J. The testator after bequeathing a support to his wife and sums of money to several children added in his will these words: "I give and devise to my son, Albert G. Barnard, his heirs and assigns, all my real estate situate in Sidney aforesaid; also all the residue of my personal estate and possessions of whatever kind or name." Many years after the will was made an undivided fourth of a parcel of land not situate in Sydney descended to him from a brother. It is reasonable to suppose, as argued on both sides, that at the date of the will he had no expectation of such an inheritance. Nor does it appear that at that time he had any real estate outside of Sidney. The question is, does the will operate to devise this real estate not situate in Sidney? The claim that it does rests upon the idea that the words "situate in Sidney" undertake to describe rather than to limit the real estate to be devised, the testator meaning to devise all the real estate he had or might have, wherever situated, and that the word "possessions" was used to embrace real as well as personal estate. The argument is aided by the suggestions, usually of force, that the presumption is, that the testator intended to leave no possible property undisposed of, and that the policy of the law favors the rule of preferring a construction which will prevent intestacy.

Although the question is a nice one we are constrained to think, that all things considered, this interpretation is not the correct one. We are to ascertain the real intent of the testator. It will be noticed that the will was drawn by some one tolerably familiar with the use of legal terms. The word "possessions" may, no doubt, include real estate if so intended, though such would not be its technical signification. Bouvier so declares in his law dictionary. The words "all I may die possessed of" may include real estate (Wilce v. Wilce, 7 Bing. 664), or may not (Monk v. Mawdsley, 1 Sim. 286), just accord ing to the context with which the words are associated.

The writer of the will had used the term "real estate" describing the property in Sidney and knew the force and meaning of it. The presumption is that if he had intended to include other real estate in

Blaisdell v. Hight.

an after-description he would have used the same term again. If he intended to leave all his real estate to his son, why should he have devised it in two parcels instead of including it in a single description? If it was his intention to devise all lands then or ever to be possessed, he would have left off the qualifying words "situate in Sidney." And if by the word "possessions" he intended to include realty, there was no necessity of the other clause in addition to it. It has been held that, where the word "land" has been used in a preceding portion of a will and omitted in a later portion of the instrument, the omission of so important a word could not have been accidental. Redfield in his work on Wills, cites cases to that effect.

Had the testator intended to include real estate in the word "possessions," it strikes us forcibly that he would not have used the prefix "personal" at all, and the language would have been "all the residue of my estate and possessions." The words "of whatever kind or name" are not naturally descriptive of real estate, but usually apply to personal property. Lands are not of various kinds and names often. The word "personal" was manifestly used to qualify and describe both estate and possessions. Accomplished draughtsmen often use words somewhat tautologically in the effort to embrace every description of personal estate.

The defendant's counsel insists that a general intention existed in the mind of the testator to dispose of all the property he ever expected to have. The trouble is that he had not employed words sufficient to carry that intention into effect. There may have been an omission. But the court are to construe and not make the will. After all, it is but conjecture that the testator would have made the favored son the devisee of still other real estate had he known he was to possess other. It might have led him to make an entirely different partition of his property among his children. In Roper's Leg. 1464, it is laid down that where a testator, in the disposition of his property, overlooks a particular event, which had it occurred to him he would have provided against, the court will not rectify the omission by implying or inserting the necessary clause. Then it is a general rule, that if it is uncertain and doubtful whether the testator intended to devise real estate, the title of the heir must prevail. At common law, after-acquired interests in real estate would not pass by will. By our statute (R. S., ch. 74, § 5) they do, provided such appears to have been the intention. Bullard v. Goffe,