claims, to declare them to be his estate, he could hardly be presumed to have intended, in the interest of equality, that those in whose hands these unequal portions of what he thus elected to regard as his estate were, should, during the length of time required for settlement, enjoy so much of what would otherwise be coming to them, without accountability for interest, and yet be entitled to share fully in the income earned by the residue of the estate during that period, as if no advancement had been made. It seems much more probable to us, however, that the testator, by this provision as to inventory, did not intend to constitute these amounts charged assets. They were not to be received by his children as a portion of the estate coming to them, but were to be "deducted" from such portion. Equality, indeed, required that, for the purpose of ascertaining the share of each child, they should first be added to the amount to be divided among all the children, and then, from the fractional part of the amount so obtained, to which such child appeared entitled, the sum advanced to such child should be deducted. Including the advancements for such purpose, of computation and equitable division only, does not constitute them portions of the estate. Taking the whole sixth clause together, the full intention seems to be as we have before stated, the equalization of the several shares. This intention is further evidenced by the provision in the third clause, as to the wife of the testator, to whom is to be paid during her life "the net income" arising from "one third of the balance of my estate." This is followed by the fourth clause, beginning with the expression: "The other two-thirds of said residue shall be divided into eighteen equal parts or shares." In ascertaining the third to be set to the widow, the distributors followed the rule laid down in Porter v. Collins, 7 Conn. 4,-that her third did not include the advancements,-and their action was approved by the court of probate. Neither the action of the distributors, nor the approval of the court of probate, has been appealed from. On the contrary, counsel for the appellant tells us, in his argument in this court, that the appellant regards that action as correct. It seems to us that the action of the court of probate, so acquiesced in by all parties, has put a construction upon the testator's intent, in respect to these sums called "advancements," such that it cannot now be changed even if this court, under other circumstances, might have put a different one on it. But this third is to be ascertained as of the date of the death of the testator. Lawrence v. Security Co., 56 Conn. 423, 15 Atl. 406. And, since this one-third is to be ascertained as of that date, it is not likely that the testator intended the other shares, into which the remaining two-thirds were aparted, should be ascertained as of a different and subsequent time, namely, that of the final distribution of such two-thirds. It may be further added

that by the fifth clause of the will, upon the decease of the wife of the testator, the onethird of his estate held in trust for her use is to be divided and aparted in precisely the same manner as the remaining two-thirds were directed to be by the fourth clause; preserving therein, also, the same idea of equality, so far as consistent with the perhaps peculiar preference manifested for sons over daughters.

For these reasons, it seems to us it was the manifest intention of the testator that in making the distribution of his estate there should be deducted from the share of said estate which was to be distributed to the appellant, and in trust for him, the amount. charged on the books of the testator against him ($113,385.25), as of the date of the death of the testator, and that there was properly distributed to him, as his proportional share of the income of said estate, such part only of the entire income as corresponded with his share of the clear residue existing at the death of the testator, as such residue was at last ascertained. The distributors therefore adopted the true rule, and the superior court is advised that the decree of the court of probate, appealed from, should be affirmed. The other judges concurred.

HAYDEN v. CONNECTICUT HOSPITAL FOR THE INSANE et al. (Supreme Court of Errors of Connecticut. May 16, 1894.)

CHARITIES-DEVISE IN TRUST-VALIDITY-CONSTRUCTION.

A devise in trust to establish free beds

at the Middletown Hospital for the Insane for ferale patients, the income in each year to be used under the direction of the trustee, creates a valid trust; and it is the trustee's duty to apply the income to the support in such hospital of such female patients as he may designate, and, at any time he may be unable to make arrangements with such hospital, to use it for the benefit of insane females possessing the requisites to entitle them to admission into such hospital, as nearly as practicable in the manner indicated by testatrix.

Case reserved from superior court, Hartford county; George W. Wheeler, Judge.

Action by H. Sidney Hayden, executor, against the Connecticut Hospital for the Insane, and others, for the construction of a will. Case reserved.

Charles R. Ingersoll and Edward H. Rogers, for executor. for executor. Henry E. Burton, for Connecticut Hospital for the Insane and its trustees. Charles E. Perkins, for heirs at law.

FENN, J. This case reserves for our advice the question as to the validity and proper construction of the residuary clause in the last will of Mary L. Townsend, late of New Haven, deceased. The language is as follows: "All the rest, residue, and remainder of my estate I give and bequeath to my executor for the following purposes: All the fur

in the first place, to determine as definitely as possible its scope and proper limitations. Stephen, in his Digest of the Law of Evidence (article 90), after stating the general rule of exclusion of parol evidence in case of a written agreement, gives certain exceptions, the second of which is as follows: "The existence of any separate, oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if, from the circumstances of the case, the court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them." Assuming this language to be correct, we may say that in Averill v. Sawyer, supra, it could not be inferred that the parties did not intend the writing to be a full and final statement of the whole of the transaction, but the contrary was presumed. And in the present case the same may be said, and, in addition, that the oral contract claimed is inconsistent with the writing. The third exception stated by Stephen is: "The existence of any separate, oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant, or disposition of property." This exception has been recognized in our state in McFarland v. Sikes, 54 Conn. 250, 7 Atl. 408, and other cases there cited.

In

But it cannot-nor is it claimed that it can-avail the defendant. Parol evidence, in such cases, merely goes to prove that the written contract never went into force as a binding obligation. In the case now under consideration it had so gone into force, and there had been part performance on both sides,-delivery by the plaintiff, advance payment by the defendant. Greenl. Ev. § 284a, it is said: "Nor does the rule [excluding parol evidence] apply in cases where the original contract was verbal and entire, and a part only of it was reduced to writing." This was commented upon in Eighmie v. Taylor, 98 N. Y. 294, where the court said that such language is capable, if too broadly and loosely interpreted, of working utter destruction of the general rule excluding oral evidence, for, say the court, "if we may go outside of the instrument to prove that there was a stipulation not contained in it, and so that only part of the contract was put in writing, and then, because of that fact, enforce the oral stipulation, there will be little of value left in the rule itself." The court added: "The writings which are protected from the effect of contemporaneous oral stipulations are those containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. If, upon inspection and study of the writing, read, it may be, in the light of surrounding circumstances in order to its proper understanding and interpretation, it appears to contain the engagement of the parties, and to define the object and measure the ex

tent of such engagement, it constitutes the contract between them, and is presumed to contain the whole of that contract." We do not think our own court, in holding parol evidence admissible under the exception to the rule of exclusion as above stated, has ever gone beyond the limits of the doctrine of Eighmie v. Taylor, nor are we now disposed to do so. It follows that the parol evidence offered was clearly inadmissible, and properly excluded. Not only did the writing appear to contain the engagement of the parties, and constitute, presumably, the whole contract, but the additional stipulation proposed to be shown conflicted with the instrument, and was inconsistent with it. There is no error in the judgment complained of. The other judges concurred.

GREGORY v. LEE.

(Supreme Court of Errors of Connecticut. June 29, 1894.)

INFANCY-CONTRACT FOR NECESSARIES-AVOIDANCE.

Where a minor contracts for the lease of a room, and leaves after occupying it for part of the period covered by the lease, he cannot be compelled to pay for the remaining time.

Appeal from court of common pleas, New Haven county; Studley, Judge. Action by Mary E. Gregory against Frank Lee for rent of a leased room. Judgment for defendant, and plaintiff appeals. Affirmed.

Talcott H. Russell, for appellant. Edward G. Buckland and Harry G. Day, for appellee.

TORRANCE, J. The complaint in this case alleges that on the 1st of June, 1892, the defendant, being a student in Yale College, entered into a contract with the plaintiff, by which he leased a room for the ensuing college year of 40 weeks, at an agreed rate of $10 per week, payable weekly, and immediately entered into possession of said room, and has neglected and refused to pay the rent of said room for the 10 weeks ending February 7, 1893. The answer, in substance, is as follows: On or about September 15, 1892, the defendant agreed to lease a room in the house of the plaintiff for the ensuing college year of 40 weeks, at the agreed rate of $10 per week, payable weekly; that he then entered into possession of said room, and occupied it till December 20, 1892; that on said day he gave up possession of said room, and ceased to occupy the same, and then paid to the plaintiff all he owed her for such occupation and possession up to that time; that immediately thereafter he engaged at a reasonable price another suitable room elsewhere, and continued to possess and occupy the same till the end of said college year; that during all of said period he was a minor, and a student in said college; and that on December 20, 1892, he refused to fulfill said agreement with the plaintiff to oc

of said 40 weeks, and has always refused to pray for the time during which he did not possess or occupy said room. The reply to the answer was as follows: "Paragraph 1. Plaintiff admits all the allegations of said defense. Par. 2. Defendant, at the time of making said contract, was between nineteen and twenty years of age. Par. 3. Defendant and his parents are residents of the island of Trinidad. His father makes him an annual allowance, out of which he is expected to defray all his college expenses, including room and board, transacting the business incidental thereto in his own name, and not on account of his father. Par. 4. It is the general custom among students and lodginghouse keepers to rent rooms for the college year of forty weeks, and students also usually contract for and pay tuition by the year. Defendant, at the time of renting said rooms, had contracted for his tuition during the college year. Par. 5. The rent charged for the room was fair and reasonable, and was suitable to his necessities as a student and to his condition in life. It was also necessary for him to have a room as a place of lodging and study during his college year. Par. 6. Defendant could not have obtained a room equally suitable for his purpose, nor on such advantageous terms, if he had not contracted for the year, except by going to a hotel, and paying the usual charges made by hotels for such period as he wished to stay. The cost of this would have been considerably greater. Par. 7. Owing to the custom above noted, plaintiff cannot rent her room for the balance of the year, and will be subjected to great loss, unless defendant is compelled to pay rent for the balance of said period." There was also filed in the case a second defense and a reply to the same, which, in view of the conclusion reached upon the first defense and the reply thereto, need not be considered. To the reply above set out the defendant demurred specially, the court below sustained the demurrer, and judgment was rendered for the defendant. The sole reason of appeal is the claimed error of the court in sustaining the demurrer.

Upon this appeal the facts stated in the answer, and also in the reply so far as the same are well pleaded, must be taken to be true. It thus appears that the defendant, a minor, agreed to hire the plaintiff's room for 40 weeks at $10 per week, and that he entered into possession and occupied it a part of said period; that he gave up and quit possession of the room, and refused to fulfill said agreement, on the 20th of December, 1892, paying in full for all the time he had occupied it; that he has never occupied it since. but has been paying for and occupying a suitable room elsewhere. Under the facts stated, it must be conceded that this room, at the time the defendant hired it, and during the time he occupied it, came within the class called "necessaries," and also that to

essary, for lodging comes clearly within the class of necessaries; and the room in question was a suitable and proper one, and during the period he occupied it was his only lodging room. "Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging, and the like. About these there is no doubt." Chapple v. Cooper, 13 Mees. & W. 252; 1 Swift, Dig. 52. So long, then, as the defendant actually occupied the room as his sole lodging room it was clearly a necessary to him, for the use of which the law would compel him to pay; but, as he paid the agreed price for the time he actually occupied it, no question arises upon that part of the transaction between these parties. The question now is whether he is bound to pay for the room after December 20, 1892. The obligation of an infant to pay for necessaries actual ly furnished to him does not seem to arise out of a contract in the legal sense of that term, but out of a transaction of a quasi contrac tual nature; for it may be imposed on an infant too young to understand the nature of a contract at all. Hyman v. Cain, 3 Jones (N. C.) 111. And where an infant agrees to pay a stipulated price for such necessaries, the party furnishing them recovers not necessarily that price, but only the fair and reasonable value of the necessaries. Earle v. Reed, 10 Metc. (Mass.) 387; Barnes v. Barnes, 50 Conn. 572; Trainer v. Trumbull, 141 Mass. 527, 6 N. E. 761; Keen. Quasi-Cont. p. 20. This being so, no binding obligation to pay for necessaries can arise until they have been supplied to the infant; and he cannot make a binding executory agreement to purchase necessaries. For the purposes of this case, perhaps, we may regard the transaction which took place between these parties in September, 1892, either as an agreement on the part of the plaintiff to supply the defendant with necessary lodging for the college year, and on the part of the defendant as an executory agreement to pay an agreed price for the same from week to week; or we may regard it as what, on the whole, it appears the parties intended it to be, a parol lease, under which possession was taken, and an executory agreement on the part of the defendant to pay rent. If we regard it in the former light, then the defense of infancy is a good defense; for in that case the suit is upon an executory contract to pay for necessaries which the defendant refused to take, and never has had, and which, therefore, he may avoid. If we regard the transaction as a lease under which possession was taken, executed on the part of the plaintiff, with a promise or agreement on the part of the defendant to pay rent weekly, we think infancy is equally a defense. As a general rule, with but few exceptions, an infant may avoid his contracts of every kind, whether beneficial to him or not, and whether executed or executory. Riley v. Mallory, 33 Conn. 201.