
    Henry Hubbard & others vs. Jane Hubbard & others.
    When a legacy is given to a widow in lieu of dower, she takes as a purchaser for a valuable consideration, and is entitled to be paid in preference to legatees who are msre volunteers.
    A testator, after making certain specific devises and bequests to his wife and children, directed his executors to set apart $200,000 for the benefit of his wife, and to keep the same invested, and to pay her the interest and income thereof, quarter yearly, during her life 5 and that until said sum should be set apart and invested, his executors should pay to his wife $2500, quarter yearly 5 and that if part of said sum should be set apart and invested, and any income should be raised therefrom, before the whole of said sum should be set apart and invested, such‘income should be applied, so far as it would go, to the payment of said quarterly allowance of $2500 5 said provision for Ills wife to be in lieu of all dower in his estate: The testator next gave specific pecuniary legacies to his brother H. and to each of H.’s children, and then gave the residue of his estate to his executors, upon certain trusts as to the payment and distribution thereof among his own children3 and he finally directed, that after the death of his wife, the fund and property set apart for her benefit, and the income thereof, should be held and managed, and paid over and distributed by his executors, among his children, in the same manner that he had before directed concerning the general residue of his estate. The estate of the testator, after payment of the specific devises, was not sufficient to raise a fund of $200,000, but was sufficient to purchase an annuity of $ 30,000 for the wife during her life, and to pay the legacies to H. and his children.
    Held, that the provision for the wife was not in the alternative, that is, either to set apart $200,000, or to pay her an annuity of $10,000 5 that no part of the estate, that remained after payment of the specific devises, should be appropriated to the pur chase of an annuity for the wile, because such appropriation thereof would defeat the testator’s intent to provide for his children, after his wife’s decease, out of the fund to be raised for her benefit 5 that although the remaining estate did not amount to $200,000, yet that the whole thereof should be set apart to raise the yearly sum of $10,000 for the wife 3 and if the income should be insufficient for that purpose, then the deficiency should be made up to her yearly, from the capital 3 that if the capital should continue to be less than $ 200,000, during the life of the wife, the payment of the legacies to H. and his children must be postponed until her decease, and that upon her decease, the fund set apart for her benefit should be distributed among the testator’s children, after first paying the legacies to H. and his children, with interest thereon from the expiration of one year after the testator’s decease.
    The plaintiffs (Henry Hubbard and his children) set forth, in a bill in equity, that John Hubbard, late of Boston, by his last will, which was proved and allowed by the probate court on the 24th of October 1836, made the defendants, and the said Henry, (who is brother of said John,) his executors and trustees; that the defendants, Jane Hubbard, William J. Hubbard and Russell Sturgis, took upon themselves said trust, and that letters testamentary were duly issued to them — the said Henry having declined to accept said trust: That the said John, the testator, after directing payment of debts, &c. and making certain specific devises and bequests to his wife, the said Jane, one of the defendants, and to certain of his children, made the following provision, devises and bequests:
    “ I direct my said executors to set apart the sum of $ 200,-000, for the benefit of my beloved wife, Jane Hubbard, and to keep said sum invested in such manner as they shall deem safe and judicious, in real or personal estate, either or both, with authority from time to time to change the mode of investment, and to pay over the interest and income thereof to my said wife, in equal quarter yearly payments, during her life; and until said sum is so set apart and invested, I direct that there be paid to my said wife the sum of $ 2500, quarter yearly, the first of said quarter yearly payments to be made at the expiration of three months after my decease; and if part of said sum of $200,000 should be set apart and invested, and any income should be raised therefrom before the whole amount should be set apart and invested, such income is to be applied, so far as the same will go, to the payment of said quarterly allowance of $2500 ; it being well understood that the provision herein made for my said wife is to be in lieu of all dower in my estate.
    “ I also direct my said executors to set apart the further sum of $ 12,000, for the benefit of my son, Henry Hubbard, and to invest and keep the same invested in such manner as they shall deem safe and judicious, with authority from time to time to change the mode of investment; and I hereby authorize and empower my said executors to appropriate the net income of said fund, or so much thereof as they may judge necessary, according to their discretion, for the support and maintenance of my said son Henry ; meaning to place the disposal of .said income, for the purposes aforesaid, wholly under their control. And in case the whole of said income should not be wholly expend 3d in any one year, I direct that what may remain unex-pended shall be added to and make part of the principal sum so to be invested for the benefit of my said son Henry; and the provision hereinbefore made for my said son Henry is to be in full of his share of my estate, and of all claims which he may be supposed to have by reason of any thing contained in this my will.
    “I give to my brother, Henry Hubbard, the sum of $8000, to each of his daughters, Elizabeth and Mary, the sum of $ 1000, and to each of his sons the sum of $500, viz. to Babcock, Charles and Gilbert, each $500.”
    That the testator, after said provisions, gave all the rest and residue of his estate to his executors, upon certain trusts concerning the same and the investment thereof, and the payment and distribution thereof among certain of his children and their heirs; and that after declaring those trusts, he provided and directed as follows: “ And from and after the decease of my said wife and my son Henry, respectively, it is my will that the funds and property set apart for their benefit, and the income thereof, shall be applied, managed and disposed of, in the same manner, in all respects, that I have directed concerning the general residue of my estate ; and I do accordingly direct, that the same shall be retained, held, managed and improved, or paid over and distributed, as the case may be, by my said executors and trustees, the survivors or survivor of them, and the executors and administrators of such survivor, to and among my sons and daughters, respectively, and for their benefit as above provided, in the same manner, in all respects, that I have above directed concerning the general residue of my estate, and the income thereof.”
    That Henry Hubbard, the son of the testator, for whose use the trust fund of $12,000 was-to be set apart, died on the 14th of May 1837, within one year after the death of the testator and probate of the will, and before any part of said fund had been set apart; but that the sum of $ 575-53 was paid by the defendants, out of the general assets of the testator, for his support : That the said Jane accepted the provision made for her in said will in lieu of dower: That a large amount of property, real and personal, other, than that specifically devised, had come to the' hands of the defendants, as executors, the exact value of which the plaintiffs had no means of ascertaining, except by the answer and discovery of the defendants; but that they believed, that after the full payment of all debts and charges, a sum exceeding $120,000, (but not amounting to $200,000,) or assets of that value, remained in the hands of the defendants, for the payment of the general legacies aforesaid : That the defendants, alleging that it is their duty, in the first instance, to apply all the assets in their possession and control to make up the trust fund of $ 200,000, and that the whole assets are not sufficient for that purpose, (which the plaintiffs do not deny,) have proceeded and are proceeding to set apart all the assets, and to invest the same, as trustees, to the utter exclusion of the rights and claims of the plaintiffs, and of all persons claiming under the other provisions of the will, and have refused to pay the plaintiffs their respective legacies, or any part thereof.
    The prayer of the bill was, that the defendants might be ordered to make answer, and true discovery of the amount and value of the assets in their possession and control, as executors and trustees, and also of the amount of all sums paid to or retained by said Jane, on account of the devise and trust in said will; and that they might be ordered to pay to the plaintiffs respectively, from said assets, the amount of their legacies, or such proportion thereof, as in right and equity ought to be paid. There was also a prayer for such further relief, by injunction or otherwise, as might seem meet to the court.
    The defendants demurred to the bill. The arguments on the demurrer were submitted in writing.
    
      W. J. Hubbard & Watts, in support of the demurrer.
    The provision, made by the testator for his wife, was in lieu of dower, of which she could not be deprived, except by her consent; and as she accepted the provision, as a substitute for an existing legal right, she takes as a purchaser for a valuable consideration, and the legacy given to her does not abate ratably with others, though the whole fund be not sufficient to meet all the purposes of the will. 2 Williams on Executors, (1st ed.) 839. Burridge v. Bradyl, 1 P. W. 126. Lewin v. Lewin and Blower v. Morret, 2 Yes. sen. 415, 420. Davenhill v. Fletcher, Amb. 244. Heath v. Dendy, 1 Russell, 543. Davies v. Bush, 1 Younge, 341. Wood v. Vandenburgh, 6 Paige, 277. A legacy to a widow, in lieu of dower, draws interest from the death of the testator, where he has provided no other means for her support during the first year after his death. And such a legacy does not abate ratably with other general legacies, in case of a deficiency of assets. Williamson v. Williamson, 6 Paige, 298. And t.iese rules are not varied by the fact, that the value of the legacy to the wife exceeds the value of the dower to which she would have been entitled. Amb. ubi sup.
    
    There is no ground for the position, that the whole trust provision falls, in this case, because the entire sum cannot be set apart, and that therefore the bequest becomes a mere annuity. Until the whole $200,000 is set apart, the widow is doubtless entitled only to $10,000 a year, in quarterly payments. But the testator evidently contemplated that a part of the $200,000 might be set apart, before the whole should be, and he expressly provided that, in such case, the income derived from what might be set apart should be applied towards paying the $ 10,000 per annum. The sums, that have been set apart, have therefore been legally appropriated, according to the directions of the testator, and cannot now be diverted to any other use. If the principal, so set apart, can be diverted to some other use, then the income falls with it, and the nature of the provision is materially changed, to the detriment of the widow. If barely enough to pay her a life annuity were set apart, and any portion thereof should be lost, her income must be lessened, so that she could not receive even the $ 10,000 a year. Wnei eas, if any part of the principal, which is now set apart for her, should be lost, so as to diminish her income from that source, and there should be no other means to supply the deficiency, she might resort to the principal, so far as might be necessary to make her yearly income amount to $10,000. Stamper v. Pickering, 9 Simons, 176.
    
      Atwood, for the plaintiffs.
    The clause of the will which follows the devise of the general residue of the testator’s estate, directs, that after the decease of his wife, the funds and property set apart for her benefit shall be applied, in the same manner, in all respects, as he had directed concerning the general residue. By this clause, and the clause respecting the setting apart of the trust fund, the testator provided, in terms as plain as professional skill could make them, that his widow should receive either the net income of a trust fund of $ 200,000, specially set apart for her, or the sum of @ 10,000 per annum, to be paid to her by the executors, in quarterly payments of @2500, until the whole of such fund should be set apart and invested. If, then, the creation of such a fund, by reason of the deficiency of assets, was, and is, and always must be impossible, the right of the widow to demand the @10,000 per annum, in quarterly payments, during her life, becomes absolute, by the very terms of the bequest. It is not the case of an election between the income and the annuity; but the testator has expressly given her the income of @200,000, if that sum can be invested, or the annuity, if it cannot.
    Whatever was the belief of the testator, as to the amount oí his property, the only guide for his executors, in the administration of it, is the language of his will. 9 Ves. 205. All the directions to set apart a trust fund relate expressly to a fund of @200,000. No order is given for setting apart a less sum. The only reference to the investment of a less sum is the conditional direction, that “if part of said sum of @200,000 be set apart and invested before the whole amount should be,” the income should be applied, so far as the same would go, to the quarterly payment; the deficiency being payable from the remaining uninvested general assets. The notion that all his assets were to be set apart and invested in a trust fund of less than @200,000 never occurred to the testator. He certainly has not directed it. Every word used by him relating to a less investment is obviously conditional, upon the possibility of making up the whole fund; and therefore inoperative, if the deficiency of assets renders it impossible.
    It is admitted by the demurrer, that the assets are insufficient to make up the $ 200,000 fund. It being then confessedly impossible to set apart the fund as first directed by the testator, the bequest becomes a simple bequest of the annuity; and, like» every other bequest of an annuity, (at least as to its effect on other legacies,) is the same thing as a bequest of the cash value or purchase money of such an annuity for such a life ; that is, in this case, as if it were a legacy of $100,000 — which is about the value of an annuity of $ 10,000 for the life of this annuitant, according to the tables of the Hospital Life Insurance Company, in Boston. Franks v. Cooper, 4 Ves. 763. Ex parte Thistlewood, 19 Ves. 236. Nannock v. Hoi-ton and Sib-ley v. Perry, 7 Ves. 391, 522. Hume v. Edwai-ds, 3 Atk. 693. 1 Roper on Leg. (1st Amer. ed.) 289. Perhaps — though the cases do not make the distinction — the rule may be different as against the residuary legatees; but the plaintiffs are not called to consider that question.
    If the court assent to these principles, this case is decided by them; as it is admitted that the assets exceed $120,000, and are therefore sufficient to purchase the annuity payable to the widow, as directed by the will, and also to pay the legacies given to the plaintiffs, leaving a surplus to fall into the general residue. The fact that the annuitant' is the widow, cannot, either upon principle or precedent, vary this result. Several of the cases just cited were annuities to the widows of testators; and there is no intimation that (except on the question of abatement) the character of the annuitant is to be considered, whether widow, child, purchaser, or stranger. It is equally plain, that the widow cannot, by any interference of her own, even by the surrender of her legal claims, affect the rights of other legatees.
    The duty of the executors seems therefore to be easily determined. If the assets in their hands be $150,000, (for example,) and the cash value of the annuity of $10,000 be $100,000, they are to pay the plaintiffs’ legacies, $11,500, from the remaining assets, $ 50,000, and are either to purchase the annuity for $100,000, leaving the balance, $38,500, for the residuary devisees, or to pass over all the remaining assets, $ 138,500, to the residuary devisees, taking sufficient security for the payment of the annuity. The fact, that the executors are themselves trustees of all or of parts of the residue, can make no difference in the principle of the settlement. It will only make it expedient for them to obtain directions from the proper courts, if they have any doubts whether it is best to purchase or to secure the annuity. The rights of the plaintiffs are just the same, as if the residue had been devised to strangers, or as if the defendants took it in their own right. Thus all the directions of the testator will be literally fulfilled, without embarrassment to the executors, or injury to the just claims of any legatee.
    On this construction of this paid of the will, the plaintiffs have no reason to question the force of the authorities cited for the defendants to prove that a legacy to a widow, in lieu of her dower, is not subject to abatement, in case of a deficiency of assets; though this point is not known to have been decided in this Commonwealth, and though the doctrine does not seem to be so obviously just, as to be received here without a full consideration. But admitting the authority of the decisions cited, they decide only this; that the widow’s separate interest is to be first secured; if the assets permit, she is to receive the full value of her beneficial interest. When therefore the court see that her interest is safe, the rights of all other legatees are to be regarded, and made effectual also, so far as the assets are sufficient. The present is the first case in which it has been attempted to make the widow’s claim to prior payment a plea for withholding from other legatees the remainder of the assets, after reserving sufficient to pay or secure her.
    Even if there had been no provision in the will for the contingency of a failure to make up the fund, no annuity given, and the bequest had been merely of the income of the trust fund, the court, if acting on the principle of the cases cited for the defendants, would only reserve for the widow the value of that income, or direct security for the payment of that income. When the rights of other parties are to suffer thereby, no court will direct or justify the placing in abeyance, during a life time, of a large fund, more than sufficient for the security of the beneficiary, and to a part of which, by the will of the testator, others have a better title. In the present cese, the defendants indeed argue as if the words “ set apart ” and “ keep invested31 had some special power to lock up all the assets in their hands, for a purpose which a part only is sufficient to secure. But those directions were given only on condition that the whole trust fund could be made up, consistently with the state of the assets and the rights of other legatees; and in the present circumstances of the estate, they are wholly inoperative. The duty of the executors is now, in all respects, the same as if no clause for the execution or management of a trust fund were found in the will.
    None of the cases cited for the defendants are analogous to the present. They are all cases of a deficiency of assets unforeseen and unprovided for. In none of them is the opinion maintained or suggested, that the widow’s right to the whole of her beneficial interest shall in any way control the disposition of the surplus assets, to the loss or delay of other legatees. The cases in 1 P. W. 126 and 2 Yes. sen. 415, may seem, at first view, to favor the defendants’ ground, as the annuities given to the widow, and to her children after her death, were preferred to other legacies. But it will appear, on examination, that although the court took the opportunity to express an opinion that the widow’s legacies would in no case abate, yet that the decision of those cases rested on other grounds. In the first of those cases, the annuity to the widow and children was held to be a specific bequest, and therefore not subject to abatement, even of the children’s interest therein. In the second case, all the other legacies were held, on the interpretation of the testator’s words, to be only residuary, after the annuity to the widow and children. (See Lord Hardwicke’s explanation of this case, in 2 Ves. sen. 421.) Nothing in either of these cases shows that any larger sums would have been allowed than that required to purchase the widow’s annuity, if the other considerations had not given the children an independent right to a preference also. Nor does any case sustain such a proposition.
    There is no hardship, nor anything odious, in the application to the present case of the principles already suggested On the contrary, the result would be beneficial to all concerned. In asmuch therefore as the legacy to the widow is of an easily determined cash value, which can be secured by a portion only of the assets, leaving more than sufficient for the payment of the plaintiffs’ legacies, their right to such payment is absolute, and ought to be made effectual by a decree of the court enjoining the defendants from the misappropriation of the assets, and directing their application in behalf of the plaintiffs.
    But if the opinion of the court be adverse to the present right of the plaintiffs to payment of their legacies, they pray that, for the protection of their interest in the assets, even if future and contingent, they may be allowed to amend their bill, and .hat such proceedings may be thereupon had as may prevent any detriment to their rights under the will, by lapse of time, or otherwise. The plaintiffs’ legacies are on interest from the expi ation of the first year after the testator’s decease, even if, from the condition of the estate, the payment was then, and now is, impracticable. 2 Williams on Executors, (2d ed.) 1023.
    C. G. Loring, in reply.
    The plaintiffs seek to avoid the application to the present case of the rule that a legacy, given in lieu of dower, is not to abate proportionally with general legacies, by so construing the will as to make the testator intend that his wife should take one of two provisions; either, 1st, the whole income of the trust fund of $ 200,000, or 2d, if the estate proved insufficient to set apart a fund to that amount, then an annuity of $ 10,000, in quarterly payments, in lieu of her dower This construction is entirely inadmissible. The testator manifested no apprehension of a deficiency of assets for the purposes of his will. On the contrary, he plainly anticipated a residuum, after setting apart the $ 200,000 trust fund, and gave legacies out of it. The clause which provides for a quarterly payment to the widow, and on which the plaintiffs rely, does not imply the idea of any deficiency of assets, and was not inserted to meet that contingency. Nor does it import a permanent annuity to the wife, in lieu of dower. But it looks directly to the ultimate sufficiency of the assets to furnish the full fund, and provides for the quarterly payments, not during the widow’s life — as it would, if providing for her permanently — but only until the trust fund should be set apart. This was evidently a temporary provision for the wife’s support while the executors should be collecting the assets and setting apart therefrom the trust fund of $ 200,000, and was not intended as a substitute for the provision that the fund should be created. There is no intimation of two independent provisions for the wife, nor does tne language of the will justify the conclusion that she is permanently to receive the one or the other, or imply that one is the alternative of the other. In that clause of the will in which the testator disposes, after the death of his wife and his son Henry, of that part of his estate set apart for their support, he manifestly does so without a thought that, by reason of any circumstance, such provision should not be made, and that there might therefore be no such residue to dispose of. Besides; it is certain that the clause giving to the wife a quarterly payment, is not a provision independent of that which created the trust fund, nor intended as a permanent substitute for it; because he makes it, in terms, subsidiary to and in aid of the other. He directs that it shall be available to the wife, with the other, while that may be incomplete ; and he declares that if the fund be in part created, and income be received therefrom, before it is wholly set apart, such income shall be his wife’s, and if it fall short of $ 2500 a quarter, the deficiency shall be made up to her; thus manifesting that he did not intend the quarterly payments to constitute, by themselves, a fixed and permanent annuity of $ 10,000 a year, or to be a provision separate from the trust fund, but to be varying and contingent payments, sufficient only to make up such sum, short of $2500 per quarter, as the trust fund should fail to yield before the full amount thereof should be invested. If during any quarter before the $200,000 had been invested, the part which had been invested should have yielded a quarterly income of $2500, no payment whatever could be made under this provision for quarterly payments to the wife. So that the mere insufficiency of the estate to set apart a fund of $ 200,000 does not, of itself, give the widow a claim to an annuity of $10,000; for non constat that though less than $ 200,000 is set apart, it may not produce annually $10,000, if well invested; and if it does, no benefit of the clause, which provides for the quarterly payments, could be claimed by the widow. The hypothesis, therefore, on which alone the whole argument for the plaintiffs stands, is without foundation. The language of the will is not that if the trustees are unable to set apart $200,000, then $10,000 shall, at all events, be paid to the wife for life; but that until that sum is set apart, so much shall be paid to her quarterly, by the execu tors, as, with the income derived from the portion which has been set apart, will amount to $ 2500 quarterly. It is therefore uncertain. It may be something, or it may be nothing.
    The intent to provide munificently for the widow is mani festly the main intent of the will. That intent looked to a permanent investment of $ 200,000, of which she was to enjoy the income during her life. And it is the duty of the court to effect that intent, if possible, and if it is not possible to effect it fully, to effect it as nearly as possible. Such is the course of courts of equity.
    There is another evident intent of the will, which ought to be effected, and which the testator’s children are entitled to have effected. It is clear that the testator intended to give the specific funds, set apart for his widow’s use during her life, to the use of his children and their representatives, after her death. An interest is given to them in this specific fund and property, as distinguished from that which they had, by the will, in the general residuum of the testator’s estate; (1 Roper on Leg. (1st Amer. ed.) 294, 295 ;) thus manifesting the testator’s intent that the plaintiffs, who were the voluntary objects of his bounty, and had no claim on him for support, should receive their legacies out of some other fund; making their legacies in fact residuary, after payment of this $200,000 fund for the benefit of the wife and children. The construction contended for by the plaintiffs frustrates this intent of the will. For if the executors should purchase an annuity of $10,000 for the wife, (as the plaintiffs suggest they should,) at a cost of $100,000, this latter sum would be forever lost to the children; whereas, if invested as a part of the $ 200,000 trust fund, they will ultimately have it.
    The difficulty in the case, if any, is caused by the plaintiffs’ assumption that an annuity of $ 10,000 is secured to the wife for life, in lieu of the trust fund, on a present inability to set apart $ 200,000; when in fact the testator has declared no such intent. The income to which the wife is entitled, till the full fund is set apart, is contingent in amount. It may exceed $ 10,000 a year, though less than $200,000 be set apart; and if it fall short of $ 10,000 at any period, and afterwards exceed it, she can only claim payment from the executors during the deficiency. If at any future time the assets shall have accumulated, or risen in value, so as to enable the executors to complete the investment of $ 200,000, they will be bound to do it, and the widow, thereupon, could only claim the income of that $200,000, whether greater or less than $10,000. Her right to receive $10,000 being contingent, it does not admit of such a valuation as the plaintiffs propose.
   Shaw, C. J.

The court are of opinion that the provision made for the testator’s wife was not in the alternative, that is, either to set apart $200,000, or to pay her an annuity of $ 10,000. If the estate is not sufficient to set apart $200,000, after payment of the specific devises, then it is to be set apart pro tanto, and the income applied to her use. If that income exceed $ 10,000 a year, she is to have it; but if it fall short, it is to be applied pro tanto, and the balance made up out of the general estate.

Had the fund been sufficient, after setting apart the $ 200,000 and the $ 12,000, to pay the plaintiffs’ legacies, they would have been payable at the expiration of a year from the testator’s death; but as it was insufficient, they must be postponed till after the death of the widow, who takes as a purchaser, and is entitled to the payment of her annuity in full.

Although there would be estate sufficient to purchase the annuity and leave a surplus, still we think the estate cannot De so appropriated, consistently with the terms of the will construed by taking all its provisions together: Because it was not pro vided or contemplated by the testator, that the estate should be applied to the purchase of annuities, so as to part absolutely with the reversionary interest in it; and because it would defeat a plain and manifest intent of the testator to provide, out of that fund, for his own sons and daughters, after the decease of their mother. In order to accomplish this, he directs that after the decease of his wife, the fund thus set apart to raise an annuity for her, shall be held, managed and improved, or paid over, in the same manner as the general residue was directed to be held, managed or paid over. But the general residue could not have been paid over till after the payment of these specific legacies to the plaintiffs. This results from the force of the term “ residue.”

The court are therefore of opinion, that by the terms of this will — it appearing that after the specific devises, the general estate did not amount to @200,000 — the whole fund was to be appropriated and set apart to raise the annual sum of $ 10,000 for the widow ; and if the income is insufficient for that purpose, then the balance is to be t made up annually from the capital: That if this general fund shall remain less than @200,000, during the life of the widow, then the whole will thus stand appropriated and set apart during her life: That after the decease of the widow, the fund thus set apart is to be paid to the residuary legatees, in the same manner as the general residue is directed to be paid, viz. after the payment of specific pecuniary legacies. It follows, therefore, that the plaintiffs’ legacies will be payable to them out of that fund when thus released, and before the residuary legatees can take.

We are also of opinion, that these legacies, when payable, will be payable with interest from the expiration of one year after the decease of the testator. 2 Williams on Executors, (2d. ed.) 1023, and cases there cited.

Bill dismissed. 
      
      
        Hubbard.- J. did not sit in this case.
     