(1907) 79 Conn. 555, 65 Atl. 968, paid the beneficiaries the full income from the bond until the last payment, when the amount of the premium was reserved. It is stated that he thus obtained the same result (both the life tenants being still living) as if he had made an annual deduction to raise the same aggregate amount for the same purpose, and it is not necessary to decide whether the trustees failed in duty in not making such annual deductions. Where there is a contrary intention manifest, the premium cannot be charged to income. Thus, in Kemp v. Macready (1914) 165 App. Div. 124, 150 N. Y. Supp. 618, an action to charge trustees with a sum of money sufficient to meet the depreciation in capital value of certain securities, purchased by former trustees at a price above par, and turned over to the trustees by order of the surrogate's court after an accounting by the former trustees, because of the failure of the succeeding trustees to create an amortization fund from the income, the court, approving the general rule as above stated, holds that a different intention is clearly expressed in the will creating the trust, and that, therefore, the trustees could not charge the premium to the income. The direction which the court held to manifest the contrary intention was as follows: "I direct my executrix and executors hereinafter named to set apart out of my estate such sum as will be sufficient to provide an annuity or annual sum [of a specified amount] over and above all taxes, expenses, and charges connected therewith, and to collect and receive the income thereof, and out of the net income thence arising to pay over to or apply to the use of" the beneficiary named, a definite sum, which varied in amount in different cases. The court states that it is plain that the predominant purpose of the testator, so far as concerned the several trusts, was that each beneficiary should receive at least the annual income specified in each case, and the amount to be set apart in trust fund • was measured by its ability to produce such income. The reason given for this doctrine is that the fund is certain to be reduced by the amount of the premium at the maturity of the bonds; that that which is really income from a bond purchased at a premium and payable at a fixed time is not the amount received in interest annually, but that amount, deducting therefrom the sum necessary to restore, at the maturity of the bond, the premium paid; that a part of the amount received annually in interest is a return of the principal. It is stated in New York L. Ins. & T. Co. v. Sands (1898) 24 Misc. 102, 53 N. Y. Supp. 320, that if an investment be in securities purchased at a premium, only such part of the proceeds therefrom can be counted as income as shall leave the fund unimpaired at the maturity of the investment. In answer to the argument that, since securities may not mature until the trusts shall have expired, and in all probability they will not diminish in value, it would be unjust to the life tenant not to pay them all the annual income, the court, in Re Allis (1904) 123 Wis. 223, 101 N. W. 365, states that such an argument does not warrant treating the payments as interest only, and as belonging to the life tenant; that the repayment of premiums out of the annual income of the securities is based on the idea that the premium is an advancement of capital above the face of the obligation, which can only be realized and repaid out of the annual income or earning of the security, since the final payment will only pay an amount equal to the face of this security; and that the annual income is, in fact, a repayment of a part of the capital thus advanced for investment, and that such repayment is proportioned to the number of years the security runs, or the longest period which experience in dealing with securities has shown can be allowed with reasonable safety for the repayment of premiums, in view of the uncertainty of the value of securities at remote periods. b. Doctrine that premium should be charged to principal. The other line of authorities holds that the premium paid for bonds in which the capital of the estate is invested by trustees cannot be charged to the life tenants, and the amount thereof retained from the income and added to the capital for the purpose of meeting the loss which will occur when the bonds mature and drop to par. Hite v. Hite (1892) 93 Ky. 257, 19 L.R.A. 173, 40 Am. St. Rep. 189, 20 S. W. 778. This is also the doctrine in Pennsylvania. Penn-Gaskell's Estate (1904) 208 Pa. 346, 57 Atl. 715; Furness's Estate (1878) 12 Phila. (Pa.) 130; Boyer v. Chauncey (1900) 12 Pa. Super. Ct. 526, see infra, II. c. The will in Boyer v. Chauncey (Pa.) supra, directed the payment of "the net income" to the life tenant, and this provision is held to indicate an intention of the testator that would be defeated by the payment of premiums out of income. This doctrine is approved in American Secur. & T. Co. v. Payne (1909) 33 App. D. C. 178, although that decision is based finally upon the intention of the testator. See Hemenway v. Hemenway (1883) 134 Mass. 446, supra. See II. c, as to cases where the intention of the testator is manifest. See Farwell v. Tweddle (1881) 10 Abb. N. C. (N. Y.) 94, and Whittemore v. Beekman (1883) 2 Dem. (N. Y.) 276, supra, II. a. The reasons advanced by these courts is that the objects of investment are twofold, to wit, safety and production of income; that investments in bonds above par are not only more productive, but more secure, and in this way benefit the remainderman. It is suggested in other cases that the life estate, being uncertain in duration, may terminate while the bonds are still selling at a premium, and if the bonds are then sold at a premium after a deduction has been made from the interest, and added to the principal, the remainderman will be doubly benefited. It is stated in Penn-Gaskell's Es tate (1904) 208 Pa. 346, 57 Atl. 715, that no rule can be stated as to premiums that in all cases will produce an equitable result; that if the whole premium is at once charged to income, or if a part of the income is withheld each year so that the successive deductions will cover the whole time the security has to run, the life tenant, who is the primary and immediate object of the testator's bounty, will be deprived of the income provided; that, on the death of the life tenant before there has been a depreciation in the value of the security purchased, the remainderman will be enriched by the amount of the premium paid from the income of the estate. On the other hand, as the securities mature the premiums will decrease, and in the end they will be lost, and if they have been charged to the remainder the principal of the estate will be impaired. After stating that in the ordinary case the principal has the advantage of any profits made on investments, and bears any losses resulting from depreciation, the court concludes that there should be no different rule in case of losses resulting from wasting premiums. In one case, the court argues that bonds might be bought at a premium and sold at a still higher one, and then, if enough could be taken from the income and added to the principal to balance the excess above par at which they were purchased, the remainderman would be doubly benefited. And it is stated that some investments will increase, while some will diminish in value; that bonds might be purchased under par, but their face value collected at maturity, and all would be added to the principal; that, all things considered, it seems to be the safe rule to let those matters balance themselves, as they are likely to do in time. Hite v. Hite (1892) 93 Ky. 257, 19 L.R.A. 173, 40 Am. St. Rep. 189, 20 S. W. 778. c. Question determined by manifest intention of testator. The cardinal rule in the construction of trusts created by will to pay the income of a fund to a life tenant, remainder over, is to determine the intention of the testator. Where this intention is manifest it governs upon the question whether the premium paid for bonds shall be paid out of the income or borne by the remainder estate. In the following cases, the intention of the testator was manifest, and governed this question: In Shaw v. Cordis (1887) 143 Mass. 443, 9 Ν. Ε. 794, where the testator gave explicit directions to his trustee to convert the residue of his estate into three enumerated kinds of securities, which included the bonds upon which a premium had been paid, and directed the trustee "to pay over all the dividends and income of said stock" to the life tenant, the court held that this manifested an intention on the part of the testator as to the disposition of the income, which must govern. It was accordingly directed that the entire income be paid to the life tenants, without any deduction to make good to the remainderman the premium paid in purchasing the bonds. In Pell v. Mercer (1884) 14 R. I. 412, where the testator directed his executors to sell securities and invest the proceeds in certain specified bonds, and directed that the interest on these bonds be paid to certain specified persons for life, it was held that an intention was manifested to pay the interest of the bonds as stipulated in them, and, therefore, there could be no deduction for premiums. Where a testator has bequeathed the greater part of a large fortune to collateral relatives, providing that only a small part of the fortune shall be appropriated from his estate and held in trust for the use and benefit of his daughter during her life, but has indicated a desire to provide for her in the most bounteous and liberal manner as to expenditures, so as to promote her convenience and comforts, and gratify her reasonable desires, and that "the interests, dividends, and income therefrom, and from each and every part thereof" (referring to the trust fund), should go to the daughter, a premium on bonds paid on investing the trust fund cannot be charged to the life tenant and the amount thereof deduct ed from her income. Re Hoyt (1899) 160 Ν. Υ. 607, 48 L.R.A. 126, 55 Ν. Ε. 282. A bequest to a trustee to invest and "pay over the income to my daughter-in-law for the full term of her natural life," with power in the life tenant to bequeath the legacy to such of testator's children or grandchildren as she may elect, indicates that the dominant object in testator's mind was the protection and welfare of the life tenant, and requires a premium to be borne by the principal. American Secur. & T. Co. v. Payne (1909) 33 App. D. C. 178. So, where the tenant for life was a daughter of the testator, and it is declared in the will that the investment should be made for her benefit, and there is nothing tending to show that the remaindermen, who were the children of the daughter, were in being at the date of the will, a premium paid on an investment in United States bonds, as specifically authorized by the will, cannot be charged to income. Lynde v. Lynde (1906) 113 App. Div. 411, 99 Ν. Υ. Supp. 283. In Re Johnson (1901) 57 App. Div. 494, 67 N. Y. Supp. 1004, affirmed as to this point in (1902) 170 Ν. Υ. 139, 63 N. E. 63, it is held to be the intention of the testator that the entire earnings of trust funds should be available as income to the life tenant, and therefore the right of the trustees to hold back from the accruing income a sum deemed adequate as a sinking fund, to compensate for this wearing away of the premium, was denied. After approving of the case of McLouth v. Hunt (1897) 154 Ν. Υ. 179, 39 L.R.A. 230, 48 Ν. Ε. 548, supra, the court in Re New York L. Ins. & T. Co. (1898) 24 Misc. 71, 53 N. Y. Supp. 382, holds that where a life estate is given to the children of the testator, and remainder over, the relationship of the parties indicates that it was intended that the diminution in the value of bonds, due to a falling premium, should be borne by the remaindermen. The general rule is then laid down by the court that the loss or gain in the value of securities pur chased by the trustees in the exercise of a sound discretion should go to the diminution or accretion of the capital, as the case may be, unless a contrary intention is expressed in or necessarily implied from the trust instrument. This general rule can no longer be regarded as the law, since the decision in Re Stevens (1907) 187 N. Y. 471, 12 L.R.A. (N.S.) 814, 80 N. E. 358, 10 Ann. Cas. 511, supra. The purchase of the government bonds which were the subject of this litigation was expressly authorized by the testator. Under a will directing the investment of a trust fund in certain named securities, among which are United States bonds, the loss of a premium paid on such bonds, due to approaching maturity, falls upon the remainderman. Bergen v. Valentine (1882) 63 How. Pr. (N. Y.) 221. The court here states that the idea of a loss is purely speculative, and rests upon the assumption that the face only of the bond will be realized. It is further stated that, at the time of the decision in this case, the bonds had a premium beyond that paid, and, should the trust close by the death of the life tenant sometime before the maturity of the bonds, it is not clear but what a profit may yet be realized, instead of a loss suffered. It is further stated that the income of the life tenant is diminished by the payment of the premium, since the income is only on the par value of the investment; that this loss must fall on the life tenant, and the loss of the premiums on the remainderman. In Re Fisk (1904) 45 Misc. 298, 92 N. Y. Supp. 394, where the life tenant was a feeble-minded infant daughter of the testator, and the testator expressed his intention of providing for her before any other person, by giving her, in addition to the income, as much of the principal as might be necessary for her comfortable support and main tenance, it was held that the premiums See Kemp v. Macready (1914) 165 See Boyer v. Chauncey (1900) 12 Pa. Super. Ct. 526, supra, II. b. In Hite v. Hite, supra, II. b, the court, after deciding that the premium cannot be paid from the income, concludes: "The testator no doubt intended that, where an investment was made, the cost of it was to be charged to the principal, without any deductions from the income of the life tenants." A contrary intention was manifested where the testator directed the investment of the trust funds in certain named securities, including bonds which he knew could not be purchased except at a premium, and directed the trustees to collect and receive the interest and income arising from the investment, and pay and apply the "net" interest and income arising therefrom to the life tenant, and the trustees were held to be authorized to retain out of the income a sum sufficient to make good a deficiency in the principal of the investment arising from the fact that the premium paid therefor had been gradually diminishing, by reason of the fact that the bonds and stocks were approaching maturity. Reynal v. Thebaud (1893) 3 Misc. 187, 23 N. Y. Supp. 615. In New York L. Ins. & T. Co. v. Kane (1897) 17 App. Div. 542, 45 Ν. Υ. Supp. 543, the life tenant allowed a part of the income to remain in the hands of the trustee, by whom it was again invested, and the court held that it was the intention of the life tenant and trustee to keep intact the original fund by replacing the amount that had been paid for premiums, and accordingly, upon distribution, this was done. See New York L. Ins. & T. Co. v. Baker (1901) 165 N. Y. 484, 53 L.R.A. W. A. E. 544, 59 Ν. Ε. 257, supra. STATE OF MAINE V. JOHN C. SLORAH. Maine Supreme Judicial Court-June 5, 1919. (- Ме. -, 106 Atl. 768.) Criminal law - discharge of jury - exclamation of accused at view of premises. 1. The exclamation of one charged with murder, upon approaching the scene of the crime with the jury, who are to view the premises, "Take me away, or I will go insane again," is ground for discharging the jury. [See note on this question beginning on page 1266.] - continuance of prosecution for homicide. 2. A statutory provision that trial of any criminal case except for a crime punishable by imprisonment for life may be postponed by the court, or the case continued if justice will be thereby promoted, does not preclude by implication a continuance in any event of cases in which the offense charged is punishable by imprisonment for life. [See 6 R. C. L. 544.] - speedy trial - trial at second term. 3. A statute providing trial or bail at the next term after indictment found, if demanded, implies that trial at the second term complies with the constitutional provision guaranteeing a speedy trial. [See 8 R. C. L. 71.] - demand for trial silence. Criminal law - when jeopardy begins. 8. Jeopardy begins when accused is put upon trial before a court of competent jurisdiction upon an indictment sufficient in form and substance to sustain a conviction, and the jury has been harged with his deliverance. [See 8 R. C. L. 139.] - when jury charged with deliver ance. 9. The jury is charged with the deliverance of an accused when it is impaneled and sworn. [See 8 R. C. L. 139.] 10. A jury which does not stand indifferent between the state and accused may be discharged without entitling accused to his release. [See 8 R. C. L. 156.] View - purpose. 11. The purpose of a view by the jury in a criminal case is to enable the jury more intelligently to understand and apply the evidence presented in court, and it is reversible error to permit evidence in any form to be received during the view. - necessity of presence of accused. 12. The presence of accused is not necessary, at a view of the premises in a criminal case. - waiver of right. 13. Whatever right an accused has to be present when the jury views the premises in a criminal case may be waived by him. Criminal law tional questions. waiver of jurisdic 14. An accused cannot waive jurisdictional questions in a criminal case. [See 8 R. C. L. 96.] |