bills for the time agreed on, of two months, and furnish defendants sufficient incandescent light; and plaintiffs claim defendant was to use this light, and pay at a rate conforming to their previous expense, and give up their other gas and arc lights, so as to enable the experiment to go on. There is some conflict on several points, but this is an outline of the case so far as material to begin with. The apparatus was put in and work begun early in July, but it turned out a failure, partly, if not entirely, from the inadequacy of the apparatus for furnishing electricity. This machine was taken out, and further arrangements proposed and agreed upon to substitute a new style of apparatus, working directly without storage, and for new experiments, which began in the latter part of December. After this, plaintiffs claim defendants did not live up to their bargain in furnishing power, and in using these lights exclusively; and defendants claim a failure on the part of plaintiffs to fulfill their engagements. Defendants finally detached the motive power from the apparatus, and refused to have it continued. Plaintiffs bring this suit to recover for defendants' alleged wrong in violating the contract. Defendants claim that they were justified in what they did, and so the jury found. Errors are assigned which rest upon a very few questions. The first error assigned relates to allowing defendant, Baxter, to relate a conversation with one Holcomb, an agent of plaintiffs, concerning the storage battery, which was the first apparatus put in. The ground of the objection was that this conversation was had before the defendants had determined to furnish their own steam-power, which entered into the subsequent contract. We can see no objection to this testimony. The declaration itself goes back to the summer arrangement, which was given up for the later one; and from the record it is easy to see, that, throughout the whole dealings, which were all verbal, the parties acted in view of all of the earlier statements and propositions. Their negotiations were practically continuous, and without the whole of them it would not be easy to understand fully any of the later transactions. The second assignment relates to the refusal to charge according to a special request, which was in effect that the inferior or worthless quality of the light furnished by plaintiffs would constitute no breach of contract, but would only bear on the amount which plaintiffs should recover for furnishing it, such as it was. The same idea is repeated in exceptions to the charge of the court, which assume that one of the considerations for defendants' undertaking was that plaintiffs should furnish light. The court sufficiently distinguished between a failure of light by plaintiffs' fault, and failure by defendants' fault. It is enough to say that in the declaration itself, the lighting of the store by incandescent electrical light was one of the chief considerations relied upon. This meant adequate light; and, inasmuch as one of the grievances relied on by plaintiffs, is the failure of defendants to put out all other lights so as to leave plaintiffs' lights the only ones, it would be unreasonable to imagine that defendants were to submit to having their business interfered with, and interrupted by imperfect lighting or by darkness, without cause of complaint. The testimony shows, and common sense indicates, that it would have been extreme folly to submit to all the inconveniences and annoyances attendant on such experiments, without some beneficial result as their outcome. There was no error in any of these rulings. Defendants were not bound to have their business interests continuously impaired when the plaintiffs failed to make their apparatus work to any advantage. As the jury found that plaintiffs had no cause of action, it is not clear how the rulings as to damages became important. But the court ruled correctly that the plaintiffs could recover no damages for the expense of experiments, which failed on other grounds than the fault of defendants; and we do not see on what principle defendants are bound to keep and pay for material used in abortive experiments, which was not sought or desired for any other reason. There was no testi mony, as the court suggested, of any substantial loss in value in this material; but, if there was any error at all in this regard, it was in leaving the jury to infer that defendants. might be bound to pay damages for this material, even if not in fault. Such was probably not the idea intended to be conveyed, and the verdict of the jury has disposed of it correctly, if, as they must have done, they exonerated defendants from fault. We find no error, and the judgment must be affirmned. SHERWOOD and CHAMPLIN, JJ., concurred. MORSE, J., did not sit. DANIEL H. FITZHUGH, JR., TRUSTEE UNDER THE WILL OF Will-Construction of conditional devise. 1. A testatrix, after providing for the payment of certain specified legacies, and the maintenance and education of a granddaughter, during her minority, and thereafter the payment to her of the income derived from the residuary estate, during her life-time, devised and bequeathed said estate to the lawful issue of the granddaughter, if any survived her; and if not, then to the brothers and sisters of the testatrix equally, "and to the children of such of them as shall be no longer living, so that the children of each of the deceased shall take the share-to be equally divided among them if there be more than one-to which the deceased parent would have been entitled if living." At the time of the execution of the will a son of a deccased brother of the testatrix was alive, but he died prior to the death of the granddaughter, leaving a will whereby he bequeathed, as claimed, his prospective and contingent share under his aunt's will. Afterwards the granddaughter died, without issue, and the trustee, under the original will, brings this suit to obtain a construction of the same. Held, that the manifest intent of the testatrix was, that no estate should vest in any one, outside of her granddaughter and her issue, until the event of the granddaughter's death, and that in case she should die without issue, only the living brothers and sisters, and the living issue of those dead, should inherit. 59 427 98 380 59 427 827NW 561 132 1323 Held, further, that there is no intimation in the will that the testatrix meant to give her nephew, or any other person, an estate capable of alienation, or devise, before the death of the granddaughter, but, on the contrary, its whole tenor seems to be strongly against such a construction. 2. There is no rule of law that prevents the carrying out of this intention. There was no vested estate until the death of the granddaughter, and no interest passed to the nephew by the terms of the will, except a contingent estate, that perished with him, if he died before the granddaughter. 8. Granting that such contingent estate was devisable, under our statute, in the same manner as an estate in possession, yet it is equally true that the nephew could devise no greater estate than he himself held, and such devise would be defeated and destroyed by the same contingency which would have defeated his interest had he not disposed of it. The only effect of the statute was to enable the nephew, by his will or deed, to put another in his place with the same prospective rights he himself had under his aunt's will. 4. The estate taken by the nephew was a contingent one, liable to be defeated by the happening of either one of two events, to wit: the death of the granddaughter, with issue surviving her, or his own death before that of the granddaughter. Appeal from Bay. (Green, J.) Decided January 27, 1886. Bill to construe will. Defendant Townsend alone appeals. Affirmed. Winsor Scofield and Benton Hanchet, for complainant: It is the clear intention of the will that the property should go to persons who were of the family of the testatrix and living at time of the granddaughter's death, who was her only descendant. Being unknown to her, their names are not specified but their identity was to be determined by ascertaining who were her relatives at the time of such death. The testatrix does not devise the estate, or any power to dispose of it, to her granddaughter, the special object of her bounty, but simply the income derived from it, in order that she may direct its disposition at the end of her granddaughter's life. She does not give the estate to her next nearest relativeher granddaughter's children-unless they shall be living at time of their mother's death, and they have no power to dispose of the property vested in them unless alive at that time, although they might be born and live to old age after William Addison Fitzhugh had died. In case of her granddaughter's death, without living issue, then only such of the brothers and sisters of the testatrix as shall be then living are to take under the will, and unless so living they have no power of disposition over the property, hence cannot confer upon any one else, who may be then living, the right to take. And, finally, the will provides that in case of the death of the granddaughter, without lawful, living issue, and in case any brother or sister of the testatrix shall then "be no longer living," then "the children of each of the deceased shall take the share, to be equally divided among them, if there be more than one, to which the deceased parent would have been entitled if living." The language used in this provision of the will, by force of its most obvious and natural import, conveys the idea that the persons who are to take in the place of the brothers and sisters, who are then dead, are to be persons who shall be living. The only reason why the brother or sister shall not take is because he or she is then dead. Would the testatrix, acting on that reason, give the property to another dead person? Would she intend to withhold a share from a brother, because dead, at that date, and give it to a nephew, who was also dead, at the same date? Such is the construction contended for by the appellant. The will intends that the grandchildren, shall take under it, and no portion of the estate decreed to them would go to the appellant, if it should be held that they are not entitled to take under the will. If the term children, in the twenty-fourth paragraph of the will, is used in its general sense, as meaning offspring or descendants, then the grandchildren would take: Pronitt v. Rodman, 37 N. Y. 42, 54-8; Parkman v. Bowdoin, 1 Sumn. 359; Royle v. Hamilton, 4 Vesey 437; Duvall v. Goodson, 79 Ky. 224; Beebe v. Estabrook, 79 N. Y. 246-9, 251; Bowne v. Underhill, 4 Hun 130; How. Stat. § 5812; 4 Kent Com. 419, and the will shows that such was the meaning attached to the term children. It is plain that the testatrix intended to dispose of her estate, so as to keep it in her own family, until the death of her granddaughter, and to have it at that time go to her own family, and only to her family. If the nephew had left a child living at the grand |