TILLINGHAST, J. This is a proceeding under Pub. Laws R. I. c. 596, §§ 19-27, (of May 27, 1886,) for the seizure and forfeiture of certain intoxicating liquors, alleged to have been illegally kept for sale by one Morris S. Horgan. The complaint upon which the search-warrant was issued was in the following form:
"To Darius Baker, Esq., Justice of the District Court of the First Judicial District, in the County of Newport, in the State of Rhode Island and Providence Plantations: William C. Congdon, chief of police, and a legal voter of the city of Newport, in said county, on oath complains, in the name and behalf of the state, that certain intoxicating liquors, to-wit, a certain quantity of rum, being about and not exceeding one hundred gallons; a certain quantity of whisky, being about and not exceeding one hundred gallons; a certain quantity of gin, being about and not exceeding one hundred gallons; a certain quantity of brandy, being about and not exceeding one hundred gallons; a certain quantity of ale, being about and not exceeding one hundred gallons; a certain quantity of wine, being about and not exceeding one hundred gallons; a certain quantity of strong beer, being about and not exceeding one hundred gallons; a certain quantity of lager-beer, being about and not exceeding one hundred gallons; a certain quantity of other strong and malt and intoxicating liquors, being about and not exceeding one hundred gallons; a certain quantity of mixed liquors, a part of which is ale, wine, rum, and other strong and malt and intoxicating liquors, being about and not exceeding one hundred gallons,—contained in certain barrels, kegs, jugs, jars, bottles, decanters, and other vessels,—were and still are kept and deposited by one Morris S. Horgan, of the city of Newport, in a certain building numbered live hundred
and sixteen and five hundred and eighteen, then and there situate on Thames street, so called, in the city of Newport, and in the outbuildings in the rear of said building, and used in connection therewith, against the statute and peace and dignity of the state. Wherefore the complainant prays for a warrant to search said buildings and outbuildings for said liquors and vessels, and that the same may be declared forfeited to the state. Dated at Newport this 14th day of July, A. D. 1888. WILLIAM C. CONGDON, Chief of Police, and a legal voter of the city of Newport."
"Newport—sc: In Newport, this 14th day of July, A. D. 1888, personally came William C. Congdon, chief of police, and a legal voter of the city of Newport, subscriber to the above complaint, and made oath to the truth of the same. Before me, DARIUS BAKER, Justice of the District Court of the First Judicial District."
Upon this complaint a warrant in due form was issued to search the premises described, and to seize the liquors and vessels mentioned, and hold the same until further order. This warrant was duly served, as appears by the officer's return thereon, and quite a large quantity of intoxicating liquors of the various kinds mentioned in said complaint, together with the vessels containing the same, were seized and taken possession of by said officer. On the trial of the complaint for forfeiture in the district court, the following motion to quash was made by said Morris S. Horgan, viz.:
"Newport—sc.: District Court, First Judicial District. And now comes the said Morris S. Horgan, who, while not admitting that he is now, or at any time has been, the owner or keeper of the intoxicating liquors described in the affidavit herein, warrant of seizure, or return thereon, but requiring the state to prove the same as it may be advised, moves that the said warrant be quashed for this: That the said complaint was not sworn to by a legal voter, as required by section 19, c. 596, of the Public Laws of Rhode Island, and that the said William C. Congdon, who made said affidavit, was not at the time of making the same really and truly possessed in his own right of real estate in any city or town of said state of the value of one hundred and thirty-four dollars over and above all incumbrances, or which rents for seven dollars per annum over and above any rent reserved, or the interest on any incumbrance thereon, being an estate in fee-simple, fee-tail, for the life of any person, or an estate in reversion or remainder, which qualities no other person to vote; that the name of William C. Congdon was not registered in the town where he resides, on or before the last day of December, A. D. 1887; that he has not paid a tax or taxes assessed against him within a year next preceding the time of making said affidavit, in any city or town in this state, to the amount of one dollar; that he has not been enrolled in a military company in this state, been equipped and done duty therein, according to law, for one day during such year. By his attorney, PRANK P. NOLAN."
This motion was overruled by said district court, and such proceedings were had therein that said liquors, and the vessels containing the same, were declared forfeited to the state, and ordered to be destroyed. From this judgment said Morris S. Horgan took an appeal to the November term, 1888, of the court of common pleas for said county. In the court of common pleas the said Morris S. Horgan filed another motion to quash, which is as follows, viz.:
"Newport—sc: Court of Common Pleas, November Term, A. D. 1888. And now comes the said Morris S. Horgan, who, while not admitting that he is now, or at any time has been, the owner or keeper of intoxicating liquors as described in the affidavit herein, warant of seizure, or return thereon, but requiring the state to prove the same as it may be advised, moves that the said warrant be quashed for this: That the said complaint on which said warrant of seizure was issued does not comply with section 20, c. 596, of the Public Laws of Rhode Island, which require the affiant to describe as nearly as may be the place to be searched, and the liquors and the vessels containing the same to be seized; and also for that the description of said liquors and vessels as given is insufficient, and inadequate in law to base a warrant of seizure thereon. By his attorney, FRANK F. NOLAN."
This motion to quash, together with the motion made in the district court for the same purpose, and renewed in the court of common pleas, was overruled, and exceptions duly taken thereto.
The following agreed statement of facts as to the qualification of said William C. Congdon as a legal voter was introduced in evidence and made part of the record in the trial of said case, to-wit: "Newport—sc: Court of Common Pleas, November Term, 1888. The State vs. Certain Liquors. Morris Horgan, Appellant. It is agreed that William C. Congdon, at the time he made the affidavit, on which the warrant of seizure in this case was issued, was a legal voter in a town or city of this state only in case he was qualified by reason of ownership of an interest in the real estate mentioned in the will of William P. Congdon, deceased, a copy of which is hereto annexed; that at said time said William C. Congdon was upon the voting lists of the city of Newport by virtue only of said ownership; that at said time there were living eight children of the said William P. Congdon, deceased; that the said real estate qualified no person to vote at said time, unless it qualified said William C. Congdon; that it was then unsold, and formed a portion of said William P. Congdon's estate; that said real estate was situate in the city of Newport, and was of the value of ten thousand dollars. SAMUEL R. HONEY, Attorney
for Claimant of Liquors. ROBERT W. BURBANK, Assistant Attorney General."
That part of the will of William P. Congdon, deceased, which is pertinent to the question raised by the agreed statement of facts, is as follows: "(2) I give, devise, and bequeath to my wife, Nancy T. Congdon, the use, occupation, rents, profits, and income of all the rest, residue, and remainder of my estate, real, personal, and mixed, of whatever name, nature, and description, and wheresoever found, of which at the time of my decease I may be seised, possessed, and entitled to; to have and to hold the same for and during the term of her natural life, subject, however, to the bequest made to my two daughters, Charlotte and Martha, mentioned in the fourth section of this will. (8) And my will further is that in case the rents, profits, and income of my personal estate shall not be sufficient for the comfortable support and maintenance of my said wife, then I direct that, under the advice and direction of the court of probate of the city of Newport, the principal, and the whole of it if necessary, of my said personal estate, as her necessities may require, be used and expended for that purpose. And in case the whole of my said personal estate should be so used and expended, then I direct that, under the advice and direction of said court of probate, my real estate should be sold, or such a part thereof as may be necessary, and the proceeds thereof be applied to her support and maintenance. And in case it should be for the best interests of all concerned that the real estate should first be sold, then I hereby order and direct that the same shall be so done; the said court of probate to determine the advantages and interests of such priority of sale. (4) I give and bequeath unto my two said daughters, Charlotte and Martha, a home each in my homestead situate in Newport, on Broad street, for such a time and so long as each shall remain single and unmarried. This bequest is, however, subject to the contingency of the sale of said homestead, as mentioned in the preceding section of this will, and...
