Simons v. Bryce , 10 S.C. 354 ( 1878 )

The opinion of the Court was delivered by

McIver, A. J.

The first question in this case arises upon the construction of a clause in the will of John Bryce, who died 24th November, 1855, which is in the following words: “To my son, Campbell R. Bryce (with the above requisitions and reservations) and to his children, the lawful heirs of his body, I give and bequeath all the rest and residue of my estate, real and personal, of whatever kind I may die seized and possessed of, or that may at any time hereafter, either before or after my death, become mine, to him and to his children forever. And I wish it understood and declared that, having already given him about sixty thousand dollars at various times, and he being worth a property of his own at the present of fully that amount, clear of debt, that, in the event of his dying leaving a wife, his widow shall not be entitled to any part or portion of my estate which I am now disposing of, but that it shall be the property of all his children, share and share alike, to be enjoyed and managed and controlled by him during his lifetime for his and their use and benefit; and this is not intended to apply to the present wife only, who is a most excellent lady and faithful and loving wife and mother, but also to any future wife. And, furthermore, I intend and devise, that, in the event of his outliving his children and dying childless, without grandchildren, the lawful issue of his loins, then the estate which I now have shall go to the children of my brothers, Peter and Robert Bryce, and their children.”

The controlling rule in the construction of a will is the intention of the testator. Hence, if we can discover from the language of the testator what his intention was, we must construe the will in accordance with such intention, provided the same is not in violation of law. It seems to us, from the language of this clause, that the primary object of the testator’s bounty was his son, Campbell R. Bryce, and after him his children and grandchildren; and.in the event there were none such at the death of his son, then the children of testator’s two brothers, Peter and Robert. It is not so manifest, however, as to what was the nature of the estates which he intended these objects of his bounty to take. It is only necessary for us to determine in this case the nature of the son’s estate. Reading the whole clause together, with a view to give effect to every part of it, if possible, as required by one of the fundamental rules in the construction of wills, we cannot reach the conclusion that the testator intended that his son should take an absolute estate in fee simple, but, on the contrary, it appears to us that the intention was that the son should take a life estate, with remainder to his children and their children. If his purpose was to give the son an absolute estate, there was no necessity to insert the words “ and to his children, the lawful heirs of his body;” and these words would, therefore, be given no force or effect whatsoever, and may as well have been omitted. To construe the will as giving an absolute estate to the son would be practically ignoring that portion of the will containing the words above quoted. Again, if he should be regarded as intending an absolute estate to the son, what possible force and effect could be given to the words “ that in the event of his dying leaving a wife, his widow shall not be entitled to any part or portion of my estate which I am now disposing of, but that it shall be the property of all his children, share and share alike, to be enjoyed and managed and controlled by him, during his lifetime, for his and their use and benefit”? Now, these words would not only not be given any force or effect if the will should be construed as conferring an absolute estate upon the son, but such a construction would be a direct contradiction, and defeat the testator’s express wish, in one respect at least; for it is perfectly manifest that his intention was to exclude the widow of his son, for reasons entirely consistent with respect for the lady, which he has taken particular pains to explain, from any participation in the bounty provided for his son, and this it would be impossible to do if the will is construed as conferring an absolute estate upon the son; for if the son took such an estate, then, necessarily, upon his death ■ intestate his widow would inherit her portion under the Statute of Distributions, and if he left a will there would be nothing to prevent the son, if he held the absolute estate, from giving the whole or any part of it to her; so that, in either case, the intention of the testator would not be carried out, but, on the contrary, would be defeated and directly contradicted.

Again, the language of the testator, speaking of his son, “that, in the event of his outliving his children and dying childless, without grandchildren, the lawful issue of his loins, then the estate which I now have shall go to the children of my brothers, Peter and Robert Bryce, and their children,” is wholly inconsistent with the idea that the testator intended to give his son an absolute estate, and, on the contrary, indicates an intention that the estate of the son was to terminate with his life. We are, therefore, of opinion that the testator did not intend to give his son an absolute estaté, but only a life estate, with remainder to his children or grandchildren, and, in the event of his dying without leaving issue, either of the first or second generation, then with remainder to the children of his brothers. It is not enough, however, to ascertain that such was the intention of thé testator, but we must go on and inquire whether such intention can be carried into effect consistently with established principles of law. If the language be construed as amounting to a devise to the son and his children, and, in case he should die without either a child or grandchild, then over to the children of the brothers of testator, as we think it may well be, and if the term children be regarded as synonymous with “heirs of the body,” which is the sense in which the testator seems to have used the word children, as is evidenced by the language “to his children, the lawful heirs of his body,” and which is the sense most favorable to the view presented by the respondents, then, prior to the Act of 1853, (12 Stat., 298; Gen. Stat., Chap. 86, § 10, p. 443,) there might have been a question whether the limitation over was not void for remoteness, and whether the son did not take a fee conditional estate in the realty and an absolute estate in the personalty. But since that Act, which was passed prior to the death of the testator, no such question could arise. That Act declares “that whenever * * * in any will of a testator hereafter dying, an estate, either in real or personal property, shall be limited to take effect on the death of any person without heirs of the body or issue, or issue of the body, or other equivalent words, such words shall not be construed to mean an indefinite failure of issue, but a failure at the time of the death of such person.” Hence-, in construing a will which took effect after the passage of that Act, we are required to read a devise to one and the heirs of his body, or to one. and his issue, and, in case of his death without heirs of his body or without issue, then over to some one else; as if the gift were to one and the heirs of his body, or to one and his issue, and, in case of his death without leaving heirs of his body or without leaving issue living at the time of his death, then over, in which case the limitation over would unquestionably be good. Reading, then, this will in that way, we should have a devise to Campbell R. Bryce and the heirs of his body, and, in case he died without leaving such heirs living at the time of his death, then over to the children of testator’s brothers. These are, in effect, the same words as those used in Bell’s will, and, according to the ease of Henry vs. Archer, (Bail. Eq., *535,) the authority of which has never, so far as we are informed, been questioned, but which, on the contrary, has been so repeatedly recognized in a number of subsequent cases, (which are appended in a note to that case, as reported in the second edition of Bailey’s Equity Reports,) that, as Dunkin, Ch., says in Hay vs. Hay, (4 Rich. Eq., 387,) “ it may now well be regarded as a rule of property.” These words, when applied to personalty, create an estate for life in the first taker, with remainder to his issue as purchasers. In the case of Henry vs. Archer, the bequest was to testator’s daughter Elizabeth, “ to her and the lawful issue of her body forever;” and after various other devises and bequests, the testator proceeds: “And it is my will and desire that if any of my sons or daughters should die without leaving lawful issue-of their bodies alive, then their part of the estate to be equally divided amongst my then surviving children.” The contest was between the children of Elizabeth, who was dead, and certain creditors of her husband, who claimed that Elizabeth took an absolute estate and that her husband’s marital rights had attached, he having been in possession during the coverture, and the Court of Appeals in equity held, in conformity with a previous decision of the Court of Appeals in law, in the case of Henry vs. Means, (2 Hill, 328,) that Elizabeth took only a life estate in the personalty, with remainder to her children, upon the principle that where there is an express gift to issue generally, a limitation over, in the event of the first taker dying without leaving issue living at his death, will confine the gift to such issue as are living at that time and entitle them to take as purchasers. The case under consideration comes within this principle, and we are unable to distinguish it from the case of Henry vs. Archer. In our opinion, therefore, Campbell R. Bryce took, under the will of his father, an estate for life in the personalty, with a valid remainder to such of his children or heirs of his body as were living at the time of his death. This being the case, the memo-randa of indebtedness, in the form of notes given by Campbell R. Bryce to the estate of John Bryce, so far as they represent personal property, constitute valid claims against his estate in behalf of his children; but as he was entitled to a life estate therein, such amounts will not bear interest except from the time of his death. So far as the two larger notes, so called, are concerned, they are admitted to be representatives of personal property — the proceeds of the sales of bank stock; but as to the one for two thousand dollars, it does not distinctly appear what it represents, except that it was money of the estate of John Bryce; but whether money arising from the sales of real estate, which Campbell R. Bryce was authorized by his father’s will to make, or from the sales of personal property, or from what source it was derived, does not appear, and may, therefore, be a matter for further inquiry in the Court below.

It appears, however, that some of the children of Campbell R. Bryce released their claims against the estate of their father on account of two of the so-called notes, and, as the bonafides of that release has not been questioned, it must operate as a discharge so far as the interests of those who were of age at the time are concerned. Two of the parties who signed this release were not of age at the time it was signed, but attained the age of twenty-one years some time before the commencement of this action; and as the Circuit Judge has found that “ the existence of the three notes and the release above recited was always known to the several members of the family of Campbell R. Bryce, deceased, and at no time before the commencement of this action was any claim to the said notes set up, or any objection to the said release urged, by any one of the parties,” it may be that these two children will be held to have ratified the release, which they signed while minors after they had attained their majority. But as there is no decision upon this point by the Court and but little testimony, it will be necessary for that Court to make further inquiry as to this point. As to the two children who did not sign the release and who are not yet of age, it is manifest that their rights can in no wise be affected thereby.

The next inquiry is as to the effect of the several mortgages executed by Mrs. Sarah M. Bryce to some of the defendants. She was executrix as well as devisee under her husband’s will, and the property mortgaged consisted of lands devised to her by him. The will of Campbell R. Bryce invests his executors, or a majority of such as may qualify, “ with authority to sell or dispose of any portion'of my estate, real and personal, they may deem expedient, at public or private sale, for change of investment, partition or any other purpose not inconsistent with my will.” It seems that all three of the executors named qualified, though one of them, Mrs. Sarah C. Bryce, died prior to the execution of the mortgages in question. These mortgages, however, do not purport to have been executed in pursuance of any power conferred by the will, even were it conceded that the terms of the will were sufficient to confer such a power; they were not given to secure debts due by Campbell R. Bryce, but, on the contrary, were given to secure the individual debts of Mrs. Sarah M. Bryce, and they were executed by her alone and not by the other surviving executor. It is clear, therefore, that these mortgages cannot be regarded as having been executed in pursuance of any power conferred upon his executors by the will of Campbell R. Bryce, but must be regarded as the individual act of Mrs. Bryce as devisee. Mrs. Bryce being both executrix and devisee, she cannot in the latter capacity claim any rights inconsistent with her duty in the former. Her first duty as executrix was to pay the debts of her testator so far as his property would extend, and until she had performed that duty it is difficult to understand how she could acquire any adverse rights to such property, which was in her hands, primarily, for the purpose of paying such debts. She must, therefore, be regarded as in possession as executrix until the debts are paid, and the lands devised to her must, while in her hands, remain liable for the payment of the debts due by her testátor in preference to any debts due by her in her individual capacity.

This brings us to the question whether the mortgagees can claim the benefit of the Statute 3 and 4 W. and M., Chap. XIV, (2 Stat., 535; Gen. Stat., 92, § 5, p. 464); that is, whether a mortgage of real estate is an alienation within the meaning of that statute. It admits of no dispute that if the answer to this question depended alone upon the English cases it must be answered in the affirmative. These cases are the legitimate result of the nature of a mortgage at common law. A mortgage under that law is defined to be “ the conveyance of an estate, by way of pledge, for the security of debt, and to become void upon payment of it.” — 1 Hilliard on Mortgages, Chap. I, § 2, following 4 Kent Comm., 133. Or, “a mortgage is a pledge and more, for it is an absolute pledge, to become an absolute interest if not redeemed at a certain time,” following the definition in 1 Powell on Mortgages, 3-4. Hence it naturally followed, from the inherent qualities of a mortgage, that, as Nott, J., says, in State vs. Laval, (4 McC., 339-40,) “ a mortgage, according to the English law, is a conveyance of land' as a security for money to be paid in future, and defeasible upon the payment of the money within the time prescribed. If the money be not paid according to the contract the deed becomes absolute and the fee of the land is vested in the mortgagee.” This being so, the necessary result would be that a mortgage must be regarded as an alienation. It is very apparent, however, that our Act of 1791 (5 Stat., 169,) introduced not only important but radical changes in the very nature of a mortgage; in fact, we may say, not only revolutionizing but absolutely reversing the nature of a mortgage. For, while at common law it operated as a conveyance of an estate, by that statute it is expressly declared that it shall not so operate, “ even after the time allotted for the payment of the money secured by the mortgage is elapsed.” And while, as we have seen, by that law “ a mortgage is a pledge and more, for it is an absolute pledge, to become an absolute interest if not redeemed at a certain time,” by that statute it is expressly declared that it ought to be considered “only as a pledge;” and while at common law the mortgagee, upon breach of the condition, could maintain an action to recover the possession of the mortgaged premises, by that statute it is expressly declared that a mortgagee shall not be entitled to maintain such action except “ when the mortgagor shall be out of possession.” In the face of these radical changes in the nature and effect of a mortgage, made by statute, it is difficult to understand how a Court can now attribute to a mortgage qualities of which it has been deprived by legislative enactment; for it is essential to the idea of a mortgage being an alienation that it should be the conveyanee of an estate, and that the statute expressly declares it shall not be. The word is never used, so far as we are informed, either by text writers or in adjudicated cases in any other sense. The essential feature of it is that it involves the idea of a transfer of the title to an estate by the act of the parties as contradistinguished from the operation of the law. The legal definition of the term is, the act by which the title to an estate is voluntarily resigned by one person and accepted by another in the forms prescribed by law. — 2 Bouv., § 1992. It is true that we do find the expression “ alienation by way of mortgage” both in the text books and reported cases, but it is applied to mortgages as they were at common law, and not to mortgages as changed by the Act of 1791; or, if so applied/incorrectly applied, — resulting, probably, from a habit which grew up under the common law, just as we will presently find with regard to the words “ equity of redemption.” It is argued, however, that by the terms of the Act of 1791 the changes thereby introduced do not apply “ when the mortgagor shall be out of possession,” and therefore in such cases a mortgage still retains all of its common law incidents or qualities, amongst which is, that it is a conveyance of an estate, and, therefore, should be regarded as an alienation. A sufficient answer to this is, that we are not now dealing with such a case, and that it will be time enough to consider such a case when it arises. In the case in hand the mortgagor is still in possession, and therefore it does not come under the proviso to the second Section of the Act of 1791. It may be insisted, though, that as in the one case a mortgage must still be regarded as an alienation, that it ought also to be so considered in the other, probably, for the purpose of preserving the symmetry of the law. This is undoubtedly a good purpose; but however good it may be, we are unable to see by what authority a Court can abrogate a statute, or any part of it, even for the purpose of subserving so desirable an end. It is perfectly manifest that the Act of 1791, as it has been construed by our Courts with respect to the effect of that proviso, has established not only marked differences, but absolute contradictions, in the two cases; for where a mortgagor remained in possession, the mortgagee might, under certain specified circumstances, have applied to the Court of law for a sale, while in the other case, where the mortgagor was not in possession, he was not allowed, under any circumstances, to resort to what is called in one of the cases “ the easier and cheaper mode” afforded by the Court of law, but was forced to take proceedings in the Court of Equity, which are denominated as “ tedious and expensive.” In the former case he could not maintain an action for possession of the mortgaged premises, while in the latter he could. In the one case the mortgage was to be regarded as only a pledge, while in the other it was a pledge and something more. And, finally, in the former case the mortgagor was still the owner of the land, even after breach of the condition, while in the latter he was not. We do not, therefore, see the force of the argument that, notwithstanding all these radical changes, we should still attribute to a mortgage in the one case a feature of which it was deprived by these alterations, simply because in the other case, to which these alterations do not apply, the mortgage might still retain all of its common law features. Whether the true construetion has been placed upon the proviso to the second Section of the Act of 1791 we do not propose to inquire, inasmuch as it cannot affect the ease under consideration, especially as that construction has been so long settled and has been followed in so many cases as to demand, probably, that it should not be disturbed, even though originally it may have been wrong. But we are not disposed to extend the effects of that construction beyond what the cases on the subject absolutely require.

Again, it may be argued that the provisions of the Act of 1791 are but the declaration of the construction which had always been placed upon the nature and effect of a mortgage by the Court of Equity, and that the legal estate was always regarded by that Court as remaining in the mortgagor. This is a common remark, and is to be met with in many of the cases; but, like most common remarks, it is true only in a modified sense. It is not true that the Court of Equity always regarded the mortgagor as the legal owner of the mortgaged land, for, if so, whence the necessity of a recon-veyance when the mortgagor applied to that Court to redeem after condition broken ? If the legal title was regarded by the Court of Equity as still in the mortgagor, as it is still declared to be by the Act of 1791, after condition broken, the reconveyance of the mortgagee would be worse than a nullity — it would be an absurdity. A person who had no title would be conveying to one who already had the title. Certainly a Court of equity would not decree that one should convey what he never had to another who already had the thing to be conveyed. And yet, as Wardlaw, J., says, in Mitchell vs. Bogan, (11 Rich., 697,) “the right to redeem, if opposed, always required the aid of a Court of equity for its enforcement, and was not complete in fruition until there had been a reconveyance from the owner of the legal estate” — the mortgagee. Even where the mortgage debt had been paid or extinguished, there must have been a reconveyance. As Lord Hardwicke said in Harrison vs. Owen, (1 Atk., 520,) “if a mortgagee cancels a mortgage and it is found so in his possession, it is as much a release as canceling a bond, but it does not convey or revest the estate in the mortgagor, for that must be done by some deed.” This shows that the Court of Equity did not regard the mortgagor as the owner of the legal estate. It would probably be more correct to say that the Court of Equity always regarded the mortgagee as the owner of the legal estate, which, however, was impressed with a trust to reconvey upon payment or tender of the mortgage debt; and this is a very different thing from the light in which the relations of the parties — mortgagor and mortgagee — are to be regarded under the provisions of the Act of 1791. In the one case, the mortgagor, upon payment or tender of the debt, might be forced to go into the Court of Equity to get back that — the legal title to the land — which he had alienated; while in the other, having never parted with such legal title, he is under no necessity to apply to apply to any Court to get that which he already had, having never alienated it.

Again, it may be urged that the provisions of the Act of 1797, (5 Stat., 311,) which was passed, as its title declares, “to explain and amend” the Act of 1791, show that the Legislature did not intend to effect the radical changes in the nature of a mortgage which we have indicated above as the necessary result of the Act of 1791 in those cases to which it applies. The Act of 1797 provides that, whereas, under the Act of 1791, “doubts have arisen whether a mortgagee, taking a release of the equity of redemption from his mortgagor, can be considered as legally and fully seized of the premises mortgaged, inasmuch as that Act discloses that the premises mortgaged are still to be the estate of the mortgagor, and only a pledge in the hands of the mortgagee, who is not thereby vested with any legal estate, and, therefore, cannot be benefited by such release:

“ Be it, therefore, enacted, * * * * That all releases of the equity of redemption made since the passing of the said Act, or hereafter to be made, shall have the same force and effect in law as if the said Act had not been passed.”

From this it may be argued that the design of the Act of 1791, as thus explained and amended, was not to change the previously existing law in respect to who should hold the legal estate, — whether mortgagor or mortgagee, — inasmuch as the Act of 1797 provided that a mere release of the equity of redemption should be sufficient to perfect the title in the mortgagee, and that this necessarily involved the idea that, notwithstanding the express declaration of the Act of 1791 to the contrary, the mortgage did convey the legal estate to the mortgagee, which was a perfect title, subject only to the trust, which equity impressed upon it in favor of the mortgagor, to reconvey upon payment of the mortgage debt; and, therefore, when that equity was gone, by the release of what was called the equity of redemption, the title of the mortgagee was absolutely perfected. This argument, though plausible and ingenious, is answered conclusively by the remark that it results necessarily in the repeal or abrogation of that portion of the Act of 1791 which expressly declares that, even after condition broken, “ the mortgagor shall be deemed the owner of the land and as there are no repealing words in the Act of 1797, and no such effect has been attributed to it in any case that we are aware of, but, on the contrary, the full force of the Act of 1791 has been repeatedly recognized by our Courts, we must necessarily seek for some other construction of the Act of 1797. The most obvious one is that it was not designed to repeal any portion of the Act of 1791, but simply to give additional force and effect to a release of the equity of redemption — make it operate as a conveyance. Indeed, since the passage of the Act of 1791, the term “equity of redemption” is, as Nott, J., says in State vs. Laval, (4 McC., 340,) “clearly a misnomer,” as is fully shown by Wardlaw, J., in Mitchell vs. Bogan, (11 Rich., 704). In speaking of the Act of 1791, he says: “There can be under the Act no redemption before sale for satisfaction, for no estate to be redeemed has passed from the mortgagor or those who. hold under him until a sale which bars their title. What is generally called the equity of redemption is a legal right in the owner of the land to disencumber it. * * * There can be no simple foreclosure; for if all right to disencumber was taken away and nothing more done, there would still be no estate in the mortgagee. The release of the equity of redemption is a conveyance of the land to him who has the encumbrance.”

Again, it is obvious that the words “equity of redemption” do not mean what the words would naturally import, for it is beyond dispute that the interest which is commonly, called the equity of redemption is liable to levy and sale under an execution; and it is equally clear that if it were, what the words import, a mere equity, it would not be liable to levy and sale under an execution. It is plain, therefore, that what is miscalled the equity of redemption is, in fact, the legal estate in the land, subject to the encumbrance created by the mortgage, and that the release of the equity of redemption must be regarded, as Judge Wardlaw says, as the com veyance of the land to him who holds the encumbrance.

We do not think that-this question is concluded by the decision in Haynesworth vs. Bischoff, 6 S. C., 157. The point decided there is, that a mortgagee may claim the protection afforded to purchasers for valuable consideration without notice, upon the equitable principles regulating the doctrine. The case does not decide that a mortgage is an alienation in the proper sense of that term. As the present Chief Justice well says in that case: “The equitable doctrine as to purchasers springs out of the peculiar nature of equity as the administration of a settled rule of conscience. When it is sought to affect a party or subject his rights or estate to some equity or state of equities existing primarily between other parties, on the ground that he has acquired some property or right from one bound by such equity, and in whose hands the property or right previous to its transfer was specifically bound by such equity, it is necessary to show that the act of acquiring such property or right ought not. in conscience to stand. If the dealing has been fair and the pur-' chaser has been at cost to acquire the property or right, not intending or knowing of any injury to result therefrom to a third person, it is clear that a Court that proceeds on the ground of conscience cannot interfere with rights thus obtained.”

But in this case the mortgagees do not and could not invoke any such equitable doctrine, but rely upon the express provisions of a special statute, and by that statute must they stand or fall. The claim which they resist does not rest upon a mere equity, as in JETaynesworth ' vs. Bischoff, but is a plain legal right — lands in the possession of an heir or devisee being liable at law for the debts of the ancestor or testator. Therefore the question here is not whether the mortgagees can claim the protection afforded purchasers for valuable consideration without notice, upon the equitable principles regulating that doctrine, but the only question .is, whether a mortgage of real estate can be regarded as an alienation within the meaning of that term as used in the Statute of William and Mary.

It is argued, however, that the words used in that statute are “sold, aliened or made over,” and not merely the word aliened, and that this shows a purpose to include something more than mere alienation, in the strict sense of that term, as those words will include any disposition of the property whereby the rights of third persons are affected. This argument is not sustained by the facts, for in that part of the statute which’saves the rights of purchasers— the only part with which we are concerned — the only word used is the word aliened. In the previous part of the Section fixing the liability of the heir or devisee, as the case may be, the three terms, sold, aliened and made over, are used, but not in that part which saves the rights of purchasers. Hence, if there is any force in this argument at all, it is rather against than in favor of the view contended for by the respondents. For if it be argued that the Legislature, by using the three terms, designed to cover other .cases than those strictly within the meaning of the term aliened, then the-fact that the additional terms were dropped when they came to provide for the rights of purchasers would seem to indicate that they intended to save the rights of purchasers only in the case of alienation, in the strict sense of that term.

Finally, it is argued that as a mortgage was undoubtedly an alienation at the time of the adoption of the Statute of W. and M., (1712) that statute ought now, notwithstanding the subsequent changes in the nature of a mortgage, still to be construed as embracing a mortgage. There might be some force in this argument but for the fact that this statute has been re-enacted in the general statutes, and the same terms, so far as the question under consideration is concerned, are retained, although the phraseology in other respects is changed, as we know has been the case throughout the general statutes, in order to make them conform to existing laws. For example, in this very statute, from that part of it which makes the heir answerable, the words “ in an action or actions of debt” are omitted, because the Code of Procedure had abolished all distinctions in the forms of actions.

It follows, therefore, from these views that the children of Campbell R. Bryce, who have not debarred themselves by the release above mentioned, have a right to subject the lands of their father in the possession of his devisee to the payment of any claims which they may be able to establish against him, notwithstanding the fact that the devisee has mortgaged the same to secure the payment of debts contracted by her. The question of the Statute of Limitations was not passed upon by the Circuit Court, and therefore is not properly before us.

The judgment of the Circuit Court is reversed and the case remanded to that Court for such further proceedings as may be necessary and proper.

Willard, C. J., and Haskell, A. J., concurred.