Volume 241 — Massachusetts Reports

<p> State Forester. Public Officer. Actionable Tort. </p> <p>The powers and authority given to the State forester by St. 1905, c. 381, §§ 3, 6, as amended respectively by §§ 1 and 2, of St. 1908, c. 591, were not limited by the provisions of Res. of 1915, cc. 2, 23.</p> <p>Acting under the powers conferred by the statutes and resolves above described, the State forester directed a deputy in charge as division superintentent of a certain part of the State including the towns of Hamilton and of Topsfield to find the places badly infested with gypsy or brown tail moths, “put at work there those men whom the overseers of the poor of the various towns in [his] . . . division might recommend as worthy, and utilize such labor in the places that most needed attention.” Certain needy persons, selected by the overseers of the poor of the town of Hamilton, were placed under the general supervision of the deputy State forester and under the immediate supervision of the superintendent of moths of the town of Hamilton, a public officer chosen by the selectmen and also subject to the general advice and direction of the State forester. The deputy set these men at work upon an estate in Topsfield which was heavily infested with gypsy moths, where they cleared away and burned brush, cut down smaller trees and cut up these small trees into cord wood. The proprietor of the estate paid the State $1 per cord as a fair equivalent for the labor of cutting these trees into cord wood. The State forester did not visit the work and had no actual knowledge of its details. While doing' the work upon this estate, the men negligently permitted a fire to spread to a neighboring estate in Hamilton, whose owner brought an action of tort against the State forester as an individual. A judge, who heard the action without a jury, having found the foregoing facts, also found that the work was solely directed to the suppression of the gypsy moth, that it was not done for the private benefit of the owner of the estate, and that it came within the general scope of the original direction of the defendant to his deputy; and found for the defendant. Held, that</p> <p>(1) A finding was warranted that the work as done by direction of the deputy came within the general scope of the defendant’s original directions to his deputy, which in turn were within the powers and authority of the defendant as State forester;</p> <p>(2) If, in the judgment of the defendant, the clearing away and burning of the infested brush and branches of the trees which had been felled also required cording of the wood, such cording did not exceed his official authority as State forester;</p> <p>(3) The authority of the defendant not being exceeded by his deputy and the work having been done solely for the public benefit, the defendant was not liable as an individual because he personally did not commit the acts of negligence nor were they done under his personal direction.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies.</p> <p>A woman employed in a department store in a city, being taken sick while at her work, retired to a rest room, which, with a nurse and physician in attendance, was provided by her employer for the care and treatment of employees who wished rest or were taken sick while at work as well as for members of the general public similarly circumstanced while in the store. She was attended by a nurse, who left her reclining on a couch and went into an adjoining room. Suddenly the nurse heard a loud crash and, looking up, saw an arm and part of the body of the employee protruding through a glass door, which was eight feet from the couch where the employee had been left reclining and separated the two rooms. An artery in the employee’s wrist was severed and she died. Upon an appeal from a decree awarding compensation to a dependent of the employee, it was held, that</p> <p>(1) Findings “that the illness of the employee caused her to fall and her proximity to the glass door of the rest room at a time when she was under the care of a muse under decedent’s contract of employment With the subscribers resulted in the severance of an artery of the right arm, with ensuing hemorrhage and death,” were warranted;</p> <p>(2) A finding that the employee’s "employment exposed her in a special manner to risk of injury while using the rest room furnished by the subscribers for the use of their employees,” was warranted;</p> <p>(3) The fact that the employer, for reasons which were not stated in the record, chose to make the rest room available jointly for the use both of employees and of members of the public who came into the store on business, did not take the injury out of the scope of decedent’s employment;</p> <p>(4) Findings, “that the illness which caused the fall of the employee was the remote cause of her death, and that the fall through the glass door was the dominant and proximate cause of the personal injury which resulted in her death,” were warranted;</p> <p>(5) The injury which caused the death of the employee arose out of and in the course of her employment, and the decree awarding compensation was proper.</p>

<p>Landlord and Tenant, Liability of landlord to employee of tenant, Tenant holding over under lease, Tenant at will. Elevator. Evidence, Relevancy and materiality, Interrogatories. Practice, Civil, Interrogatories.</p> <p>At the trial of an action by an employee of a tenant of the third and fourth floors of a building against the owner of the building for personal injuries caused by the falling of an elevator alleged to have resulted from negligence of the defendant, it appeared that the plaintiff’s employer was holding over as a tenant at will of the fourth floor beyond the term of a lease in writing of that floor and that he was holding the third floor on the same terms. The lease, which contained the only evidence of the right of the plaintiff’s employer to use the elevator, was admitted in evidence subject to an exception by the plaintiff. Held, that the lease properly was admitted in evidence.</p> <p>At the trial of the action above described, the only evidence of a right of the plaintiff or of his employer to use the elevator was that it should be used at the lessee’s own risk and subject to the following stipulation in the lease: “No charge is to be made by the Lessors for the lessee’s use of the freight elevator in said building during such hours of such days of the year as it is customary to furnish freight elevator service in buildings of this class-. . 1 but the lessee agrees to use said elevator for the transportation of freight only, in common with others, at its own risk, and in such manner as not to require the attendance of any servant of the lessors.” Held, that in the circumstances, the plaintiff, being an employee of the tenant of the defendant, had no greater rights against the defendant as to the elevator than did his employer.</p> <p>If answers of an adverse party to interrogatories propounded to him under G. L. c. 231, §§ 61 — 67, 89, are introduced in evidence by the party propounding the interrogatories and the facts therein stated are not contradicted in evidence, their truth stands as against the propounding party.</p> <p>In the absence of a new agreement, a tenant, in holding over after the termination of a lease in writing, holds as a tenant at will and subject to the provisions of the lease.</p> <p>The employee of a tenant,, who was holding over as a tenant at will of certain premises beyond the term of a lease in writing, was injured by reason of a defect in an elevator which, by the terms of the lease, the employer had a right to use only at his own risk. The lease also provided that its covenants should “be in force without demand or notice during said term and for such further time as the Lessee or any person or persons claiming under the Lessee shall hold the demised premises.” There was no evidence of wanton or wilful misconduct on the part of the landlord. Held, that in the circumstances the employee could not maintain an action of tort for personal injuries against his employer’s landlord.</p>

<p>Trust, Construction. Devise and Legacy. Words, “Legal representative.”</p> <p>By a trust created by a will, it was provided that, upon the death of the testator’s 'widow, “each of my said children . . . [three daughters specifically named] or their legal representative, if any has deceased, is to receive the sum of 810,-000.” At the death of the widow, one daughter survived; a second had died testate, bequeathing her jewelry, devising her real property to her two sons, one of whom was a minor under guardianship and the other of whom had died intestate before the testator’s widow, and giving her household furnishings and the rest, residue and remainder of her property to her husband; and the third daughter had died intestate, leaving surviving her a daughter and a husband. Held, that</p> <p>(1) The words of the testator were free from doubt;</p> <p>(2) The gift was absolute;</p> <p>(3) Distribution of the share given to the “legal representative” of each deceased daughter was to be among those who would respectively have inherited the personal property of such legatee, to be ascertained as of the date of her death;</p> <p>(4) The $10,000 given to the “legal representative” of the second daughter should be paid, one third to her husband, one third to the administrator of the estate of the deceased son, and one third to the guardian of the surviving son;</p> <p>(5) The $10,000 given to the third daughter should be paid, one third to her husband and two thirds to her daughter.</p> <p>A testator by his will provided that there be placed in trust “810,000 for each of ■ my grandchildren now living,” naming them, to be invested and expended for their education “until he or she arrives at the age of thirty . . . years, at which time said sum and its accumulations, or whatever remains thereof not expended . . . shall be paid unto him or her to hold absolutely. After each grandchild arrives at the age of twenty-one years however” all the income coming to each grandchild was to be expended. “In the event of the death of any grandchild before arriving at the age of thirty . . . years, this fund or any balance thereof held ... for such deceased grandchild shall revert to and be paid into my residuary estate and be disposed of as provided therein.” A subsequent clause of the will disposed of the residue of the estate. One of the grandchildren named having died before reaching the age of thirty years, the trustee sought instructions as to the disposition of his share. At that time a second grandchild was under age and a third was over twenty-one years of age, but it did not appear whether he was thirty years of age. Held, that</p> <p>(1) The share of the grandchild who had died under thirty years of age fell into the residue;</p> <p>(2) The grandchild under age was entitled to have the income expended for his education as the will provided;</p> <p>(3) The grandchild who was of age was entitled to the income if not yet thirty years of age, and to the principal sum of $10,000, if he had become thirty years of age.</p> <p>A testator provided, as to a trust fund, the income of which was given to his children for life, who were to receive yearly at least $6,000, “If therefore the income hereby made payable unto them does not furnish each with such sum of six thousand ($6000) dollars yearly, it is my will and direction that any deficit shall be taken from and charged to the principal of this trust fund.” The will also provided that, upon the death of one of the children leaving issue, the income allotted to that child should be expended for the education of such issue “until they shall arrive successively at the age of twenty-one years, if they shall so long live. And to those already at that age at the time of the death of any of my said children, and to the others as they shall successively arrive at the age of twenty-one years, the Trustees shall pay to each such portion of the trust property so held for their benefit (and formerly held for the benefit of said deceased child) as the Trustees shall adjudge to be a fair and proportionate share.” Other portions of the will showed that the testator intended equality of participation when the time for distribution came. One of the testator’s children died leaving a daughter, and, upon her becoming of • full age, the trustees sought instructions as to the disposition of the share of the principal formerly held for her benefit. A son of another deceased child of the testator still was a minor and was under guardianship. Held, that</p> <p>(1) The provision, above quoted, permitting drafts from the principal to insure the income of $6,000 yearly to each child of the testator, was applicable only to the entire fund before a partial distribution became necessary and did not justify a withholding of distribution to the daughter of the deceased child of the testator;</p> <p>(2) The daughter of the deceased child of the testator, who had come of age, should be paid, as “a fair and proportionate share” of the principal, the entire portion of the principal sum formerly held for her benefit;</p> <p>(3) The share of income of the minor son of the other deceased child should be paid to his guardian. It was unnecessary to decide what disposition should be made of his share, in the event of his death during minority.</p> <p>Where the Attorney General declined to become a party to a suit in equity by a trustee seeking an instruction, among others, as to whether any sum was due the Commonwealth as a succession tax, that question should be left for settlement as provided by law.</p>

<p>Bill in equity, filed in the Supreme Judicial Court for the county of Middlesex on September 10, 1920, and afterwards amended, by the executor of the will of Lucie M. Child, late of Natick, for instructions.</p> <p>The defendants were a grandnephew and two grandnieces of the testatrix, sixteen first cousins and twenty-nine second cousins.</p> <p>The suit was heard by Carroll, J., a commissioner having been appointed under Equity Rule 35 to take the evidence. Material facts are described in the opinion. By order of the single justice, a final decree was entered directing distribution among the grandnephew, grandnieces and first cousins of the testatrix, to the exclusion of the second cousins. The second cousins appealed.</p>

<p>Evidence, Presumptions and burden of proof, Admission. Agency, Existence of relation. Estoppel. Practice, Civil, Appeal, Findings of fact. Municipal Court of the City of Boston.</p> <p>Where, at the trial of an action for conversion of shoes, there was evidence tending to show that the plaintiff delivered the shoes at the defendant’s place of business to one, whom he alleged to be an employee of the defendant, for lasting and finishing; that, after the work was completed, that person unwarrantably refused to redeliver the shoes to the plaintiff and that the plaintiff then brought an action against such person and in that action attached property claimed by the defendant in the instant action, the fact that thereupon such defendant demanded of the attaching officer the return of his property so attached cannot be distorted, in the instant action, into an admission by him that the person who was the defendant in the action in which the attachment was made was his agent; nor does it estop him from showing the true state of affairs.</p> <p>A finding by a judge of the Municipal Court of the City of Boston, warranted by one view of conflicting testimony, will not be disturbed upon an appeal to this court from an order of the Appellate Division dismissing a report setting out the evidence and the finding.</p>

<p>Contract for $500, a commission alleged to have been, earned by procuring a customer ready, able and willing to purchase the defendant’s garage at 40 Aspinwall Avenue in Brookline. Writ dated August 7, 1919.</p> <p>In the Superior Court, the action was tried before Fox, J. Material evidence, rulings requested and refused, and instructions given are described in the opinion. The jury found for the plaintiff in the sum of $500; and the defendant alleged exceptions.</p>

<p>Workmen’s Compensation Act, Injuries to which act applies; Procedure: notice to employer. Proximate Cause. Evidence, Presumptions and burden of proof.</p> <p>At the hearing of a claim under the workmen’s compensation act for compensation by reason of a reduction of vision alleged to have resulted from an injury received while the claimant was lifting a barrel weighing four to five hundred pounds, there was evidence tending to show that the strain of lifting the barrel caused the claimant pain and that, as he was lifting it, it fell or "skidded on the bottom away;” that on the night of the accident the claimant observed some trouble with his eye; that he saw a physician and that, twelve days later, it was discovered that the retina of the right eye was detached. There was medical testimony to the effect that the separation of the retina might have been caused by the strain or exertion shown in the history of the case. Held,, that a finding was warranted that the injury to the eye arose out of and in the course of the claimant’s employment.</p> <p>The injury to the claimant above described occurred on a September 9. The claimant saw a physician on September 11 and 18. He continued work until September 18. He did not know until September 21 that his retina was detached, and until then did not connect the detachment with the strain of lifting the barrel. The superintendent of the employer inquired of the claimant’s foreman as to his absence a few days after September 18 and was told that he had " soap in his eye.” A few days later he telephoned to the claimant’s physician. The claimant testified that he notified the employer about three weeks after the accident. His wife testified that she received a blank form of notice from the employer’s superintendent which was signed by the claimant and delivered to the employer the last of October. There was no suggestion that the employer or the insured were prevented from making the fullest investigation or were embarrassed in the defence. Held, that a finding was warranted that the claimant had sustained the burden of proving under G. L. c. 152, § 44, that the insurer was not prejudiced by the claimant’s failure to give notice to the employer as soon as practicable.</p>

<p>Evidence, Of genuineness of signature; Opinion: expert; Presumptions and burden of proof. Bills and Notes.</p> <p>Where, at the trial of an action against an indorser upon a negotiable promissory note, the genuineness of the signature of the defendant was denied and there were submitted to the jury standard signatures of the defendant, which were introduced by the plaintiff and which the defendant admitted to be genuine, the jury were warranted in finding the defendant’s signature upon the note to be genuine although no handwriting expert so testified, there was no direct affirmative evidence to that effect, and a handwriting expert called by the defendant testified to the contrary.</p>

Certification to the Superior Court under the provisions of the workmen’s compensation act of a decision of the Industrial Accident Board awarding compensation to the claimant by reason of a hernia which had resulted from an injury received by him on November 7, 1919, while in the employ of the Beacon Oil Company and which, after an operation, had recurred on February 15, 1920, during a short period of employment at shovelling snow for the city of Everett.

Petition, filed in the Probate Court for the county of Middle-sex on November 24, 1920, by the trustees under the will of Sarah J. O’Neil, late of Somerville, seeking to have stricken from the files an appearance entered in behalf of one Elizabeth M. Farrell in opposition to the allowance of final accounts of the trustees. .

Petition, filed in the Probate Court for the county of Essex on March 28, 1921, and afterwards amended, seeking the revocation of a decree of that court made on October 30, 1916, dismissing a petition of this petitioner to be appointed administrator de bonis non of the estate of John C. Phillips, late of Swampscott. Material allegations of the petition as amended are described in the opinion.

<p>Contract. Writ dated September 16, 1920.</p> <p>The declaration was in two counts. In the first count the plaintiff alleged that on July 11, 1917 he gave to the defendant a mortgage for $5,000 of his property located on Main Street in the city of Brockton, subject to three mortgages held by the Brockton Savings Bank aggregating $33,500; that on January 18, 1918, the defendant foreclosed the plaintiff’s mortgage by auction sale of the premises, buying the premises himself at the auction for $8,100, subject to the mortgages held by the Brockton Savings Bank and outstanding taxes; that, at the time of the foreclosure sale, the plaintiff owed the defendant on account of the principal sum of the mortgage $5,000, o^n account of interest from December 11, 1917, to January 18, 1918 at eight per cent per annum, the sum of $41.11, and on account of expenses of the foreclosure sale, $68, in all $5,109.11; that at the time of the sale, the defendant owed the plaintiff a balance on the principal sum of said mortgage loan amounting to $199,82, a sum in the defendant’s hands placed there by the plaintiff to apply on current taxes, amounting to $520; a further sum in defendant’s hands, being rents collected by the defendant before foreclosure, amounting to $83, in all $802.82; and that the plaintiff owed the defendant on account of the mortgage foreclosed on January 18, 1918, the difference between $5,109.11 and $802.82, or $4,306.29; that the amount received from the foreclosure sale was $8,100, and that the difference of $3,793.71 was received by the defendant in excess of the amount then due from the plaintiff to the defendant under and on account of said mortgage; “and that the defendant owed the plaintiff the sum of $3,793.71 and interest thereon from January 18, 1918.” The allegations of the second count were in substance merely that the defendant owed the plaintiff the sum of $3,793.71 with interest thereon from January 18, 1918, under the terms of the mortgage which had been foreclosed on January 18,1918, “by auction sale of the premises for $8,100 subject to prior mortgages, taxes and assessments.”</p> <p>Beside the answer described in the opinion, the defendant filed a declaration in set-off, claiming amounts to be due him from the plaintiff in accordance with the following items:</p> <p>“Feb. 5, 1918, paid Henry H. Ryder $100.00</p> <p>“Five claims assigned to said Merton F. Ellis by five creditors of said Henry H. Ryder, as follows: —</p> <p>Charles B. Howard $50.07</p> <p>David Irving Co. 154.10</p> <p>Fullerton & Shaw 214.96</p> <p>Gushee & Snow 38.48</p> <p>Loring & Howard 52.92</p> <p>510.53</p> <p>“March 22, 1918, paid Henry H. Ryder $1,000.00</p> <p>“Interest on $5,000 mortgage from Dec. 11,1917 to Dec. 22, 1917 12.22</p> <p>“Foreclosure expenses 68.00</p> <p>$1,690.75”</p> <p>The plaintiff filed a general denial to the declaration in set-off and also alleged that the five claims aggregating $510.53 declared upon by the defendant were assigned to the defendant for the purpose of collection, and were received by the defendant for the purpose of embarrassing the plaintiff and making more difficult the efforts of the plaintiff to borrow the necessary funds to redeem his property from the mortgage held by the defendant; that the $1,000, claimed in the declaration in set-off as paid to the plaintiff on March 22, 1918, “was to be applied upon a contract for the redemption of the plaintiff’s premises after foreclosure of the mortgage held by the defendant, but the defendant failed to perform his part of that contract in that he never rendered a fair or accurate account of the amount due him so that the plaintiff could know what to pay.”</p> <p>The action was tried before Dubuque, J. Material evidence is described in the opinion. At the close of the evidence the defendant asked for the following rulings:</p> <p>“1. Upon all the evidence, material thereunto, plaintiff must be held to have defaulted under his contract with defendant under date of March 22, 1918 and because of said default the defendant must be allowed a credit of $1,000 to be deducted from the surplus arising at the mortgage sale in the plaintiff’s suit; or said defendant must be allowed a credit of $1,000 in his declaration in set-off because of said default.”</p> <p>“3. The assignments of the five claims mentioned in the defendant’s declaration in set-off are all valid, and the validity of said assignments cannot be questioned by the plaintiff in this suit.”</p> <p>“8. Upon all the evidence J. Howard O’Keefe, Esquire, was acting as the agent of Henry H. Ryder at the accounting between said O’Keefe, Morse, and Willard, at said Willard’s office, April 2, 1918.”</p> <p>The foregoing rulings were refused. Subject to an exception of the defendant, the judge gave the following ruling, asked for by the plaintiff:</p> <p>“3. That the defendant shall be allowed only such amounts as he actually paid creditors of the plaintiff for their claims, there being no agreement by defendant to pay to said creditors anything unless he received the same from the plaintiff.”</p> <p>Other exceptions saved by the defendant are described in the opinion.</p> <p>The judge submitted to the jury special questions which they answered as follows:</p> <p>“1. Did the plaintiff Ryder do all that he was required to do to perform his part of the contract of March 22, 1918?” The jury answered “Yes.”</p> <p>"2. Did the defendant pay or agree to pay anything for the claims of David Irving Co., $154.10; Fullerton & Shaw, $214.96; Loring & Howard, $52.92; total, $421.98?” The jury answered “No.”</p> <p>“3. Should plaintiff Ryder receive interest on the amount of his verdict from the date of the sale, January 18, 1918?” The jury answered “Yes.”</p> <p>In submitting to the jury the second question, the judge instructed them as follows:</p> <p>“These are the three items in dispute. It is claimed by the plaintiff on these three claims, $421.98, these were the claims assigned to Mr. Ellis. There were more claims than that, but two were eliminated and the question is did he agree to pay anything for the claims. That is, did he simply take the claims for collection? If he simply took the claims for collection and took an assignment and said to these parties, ‘If I get the money I will pay you/ that is not an agreement to pay, — it is an agreement to pay on condition, you see.</p> <p>“‘Did the defendant pay or agree to pay anything for the claims of David Irving Company, Fullerton & Shaw, Loring & Howard?’ Did he agree to pay independent of whether he gets the money or not? If he did then the answer would be yes. If he did not agree to pay without condition, that is, if he took the claims simply for collection, then the answer would be no to that, because it would not be an agreement to pay, except on condition, and that is not an agreement to pay as I explained to you before.”</p> <p>The jury found for the defendant (plaintiff in set-off) in the sum of $272.65, and for the plaintiff in the sum of $4,099.28; and the defendant alleged exceptions.</p>

<p>Mortgage, Of real estate: redemption. Contract, Modification. Interest. Subrogation.</p> <p>One who, by purchase at a sale in foreclosure of a junior mortgage upon certain real estate, has become the owner of the right to redeem from the senior mortgage and then has agreed with the mortgagee named in the senior mortgage to pay an increased rate of interest, cannot redeem from the senior mortgage thereafter except upon payment of interest at the increased rate, even after the mortgage has been assigned to a third party by the mortgagee.</p> <p>A mere notification by the holder of a mortgage that the rate of interest upon the mortgage debt would be increased is not sufficient, in the absence of an assent to the increase on the part of the owner of the equity of redemption, to require payment of interest at the increased rate as a condition precedent to redemption from the mortgage.</p> <p>If the wife of one who had mortgaged his real estate without her releasing her inchoate right of dower, in order to protect her right to redeem from a prior mortgage upon the real estate by getting possession of that mortgage, is required by a decree of court to pay both the principal of the mortgage debt and also interest thereon which had been permitted to remain unpaid by a purchaser of the husband’s right of redemption at a sale in foreclosure of the junior mortgage, it is proper in a suit in equity, brought by such purchaser in foreclosure of the junior mortgage to redeem the real estate from the prior mortgage after the wife had assigned the prior mortgage to a third person, to require as a condition precedent to redemption a payment not only of principal and simple interest, but also of interest on the interest thus permitted by the plaintiff to remain unpaid and required to be paid by the wife.</p> <p>The purchaser of a husband’s right of redemption at a sale in foreclosure of a junior mortgage of real estate in which the mortgagor’s wife did not release her inchoate right of dower, is entitled, in a suit by him to redeem from a prior mortgage upon the premises, only to a decree discharging that mortgage upon payment of the principal and proper interest charges and expenses, and is not entitled to an assignment of the mortgage, because that would give him a right superior to the wife’s inchoate right of dower.</p> <p>Section 4 of G. L. c. 189 is not pertinent to the question involved in the suit above described.</p>

<p>Contract, In writing, Construction. Evidence, Extrinsic affecting writing.</p> <p>The owners of certain black- gunpowder delivered it to a corporation in accordance with a proposal in writing made by him and accepted by the corporation that the corporation would recover the nitrate of potash the powder contained and sell it, and, when it was sold, would pay the owner eighteen cents per pound as his "allowance for the powder and divide the net profits of the shipments above said eighteen cents per pound allowance plus the actual expenses of treatment, into two equal parts, one of which shall belong to ” the corporation and the other to the owner. The agreement continued: “The net profits shall be ascertained by deducting from the gross receipts only said eighteen cents per pound plus the actual expenditures (not including any overhead charges) and these actual expenditures you agree shall not exceed one cent per pound for the powder treated; and in case the expenditure, exclusive of cost of equipment, should exceed that amount, you agree to assume any excess.” The entire proceeds of the sale of the nitrate were not enough to pay the owner eighteen cents per pound. In an action by him against the corporation, it was held, that</p> <p>(1) It was immaterial that the title to the powder may not have passed to the defendant, or that the defendant assumed that there would be enough money received from the sale of the nitrate to pay the plaintiff for the powder and to yield a profit to itself;</p> <p>(2) The contract was clear and unambiguous;</p> <p>(3) The promise to pay the plaintiff eighteen cents per pound for the powder when the nitrate was sold was absolute;</p> <p>(4) Evidence that an officer of the defendant had stated to the plaintiff that when the nitrate of potash was sold, the defendant would pay the plaintiff eighteen cents for each pound of powder delivered to the defendant, was inadmissible.</p>

<p>Landlord and Tenant, Construction of lease. Sale, Conditional. Real or Personal Property. Fixture. Estoppel.</p> <p>At the trial of an action for the conversion of bowling alleys, it appeared that the alleys were purchased by the tenant of a building, of which the defendant was owner, by a contract of conditional sale which provided that they “shall not be so attached or fixed to said building as to become part of the realty, and under no circumstances shall they be deemed so attached.” The vendor assigned his interest in the agreement to the plaintiff as security. The agreement of conditional sale was recorded with the municipal records. At the time of the purchase, the tenant was holding the real estate under a lease which provided “that any and all alleys which may be constructed by or for the” tenant "in and upon said premises shall be deemed to be and be affixed to the realty, and shall not be removed therefrom except upon- the written order of the Lessor.” The alleys, each weighing three thousand pounds, were fastened to the building by screws and “solidly built into the building.” The tenant, with the defendant’s consent, assigned the leasehold and lease to another party. There was evidence tending to show that an agent of the vendor informed the defendant before the sale of the alleys that he was about to sell the alleys to the tenants on a conditional sale or lease under which the alleys were to remain the property of the seller until paid for and that the defendant gave him no information of the terms of his lease or of its provisions concerning alleys. There having been default under the provisions of the contract of sale, the vendor demanded the alleys of the defendant and the demand was refused, which was the alleged conversion. The judge refused to give rulings, asked for by the defendant, in substance that because of the provisions in the lease the tenants could give the plaintiff no right to treat the alleys as personal property or remove the same. There was a verdict for the plaintiff; and the defendant alleged exceptions. Held, that</p> <p>(1) As between the tenant and the defendant the alleys, when attached, were no longer personal property and were not fixtures which could be removed during the term: they were a part of the realty and could be removed only by the defendant’s written consent;</p> <p>(2) The tenant could not transfer to another a greater right against the landlord than he possessed, and could not give to another the right to enter upon the defendant’s premises in violation of the agreement he had made;</p> <p>(3) The tenant could not confer upon the vendor of the alley the right to enter upon the real estate in violation of the provisions of the lease from the defendant to the tenant;</p> <p>(4) G. L. c. 184, § 13, relating to recording of conditional sales of heating apparatus, plumbing, gas ranges and other personal property of like kind, was not applicable;</p> <p>(5) The conditional sale agreement did not give the vendor as against the defendant a right to remove the alleys;</p> <p>(6) The rulings requested by the defendant should have been given;</p> <p>(7) If the evidence to the effect that the vendor’s agent before the conditional sale informed the defendant of its provisions and that the defendant did not inform him of the provisions of his lease respecting the alleys was believed, the defendant would be estopped to rely upon those provisions of the lease; and therefore a verdict in his favor could not be ordered.</p> <p>(8) The defendant’s exceptions were sustained.</p>

<p>Sale, Conditional. Contract, Of conditional sale, Validity.</p> <p>A contract of conditional sale of a truck required the vendee, called therein the “Lessee,” “to pay for the use of said property” a certain sum “as stated in the note of the Lessee . . . which is given by the Lessee and received by the Lessor [vendor] not as payment, but as evidence of the amount becoming due hereunder;” and provided that, “upon failure of the Lessee to carry out his part of this agreement all sums then remaining unpaid shall at once become due and payable. And in addition to re-possessing itself of said leased property the Lessor may also proceed to collect all sums then remaining unpaid which shall be considered as liquidated damages for the breach of the terms of this lease by the Lessee.” Held, that the contract was valid.</p> <p>The entire purchase price of a truck sold under a contract of conditional sale containing the provisions described above was $4,300. An initial payment of $1,234.66 was required, and the balance was to be paid by monthly instalments of $255.45. The vendee gave to the vendor as part of the initial payment a note for $1,200 secured by a mortgage of real estate. Three months after the conditional sale, the vendee being in arrears, the vendor took possession of the truck and assigned the mortgage to one who threatened to foreclose it. One to whom the vendee had conveyed his interest in the real estate and under the contract of conditional sale sought by a suit in equity to enjoin foreclosure of the mortgage and for an accounting. Held, that, the contract of conditional sale being valid and enforceable both by reclaiming of possession of the truck and by collection as “liquidated damages” of the entire unpaid balance stated in the agreement, the bill must be dismissed.</p>

<p>Negligence, Contributory, Railroad.</p> <p>A passenger upon a crowded railroad train, who voluntarily sits down upon the second step of the forward platform of the last car and crosses his legs, where he is struck by a dwarf signal which was beside the track and was six and one half inches from the outside edge of the lowest step of the platform and which would not have struck him had he been standing upright, must be found to be negligent, and G. L. c. 231, § 85 does not require submission to a jury of an action by him against the railroad company for injuries so received, even if there be evidence of negligence of the defendant.</p> <p>In the action above described, the fact, that the train was so crowded that twenty or twenty-five persons were on the platforms where the plaintiff was, did not excuse the plaintiff's lack of due care.</p>

<p>Bill in equity, filed in the Superior Court on June 13, 1917, and afterwards amended," asking that the defendants, a voluntary-association known as the Cigarmakers’ International Union of America, be required to pay a death benefit to the plaintiff as a dependent relative of her brother, William M. Silberstein, a member of the order.</p> <p>In the Superior Court, the suit was heard by Fox, J. The material provisions of the defendants’ constitution were as follows: “Section 144c. A member may at any time designate the person or persons to whom his death benefit shall be paid. Such designation shall be in writing, signed by such member and witnessed by the Secretary of the local union to which such member then belongs or by two other credible persons, and such member may at any time thereafter in like manner change such designation. If there be no such designation, or if- the paper making such designation be not deposited with the President of the International Union within thirty days after the death of such member, such benefits shall be paid to the widow of such deceased member; if there be no widow, then to the minor children of such deceased member, and if there be no widow and no minor children of such deceased member then to any relatives of the deceased member who at the time of his death were dependent for support in whole or in part upon such deceased member. If there be no written designation produced and deposited, as above required, no widow, no minor children, nor such dependent relative of such deceased member, or if no application in writing as hereinafter provided for the payment of such death benefit shall be made within one year next after the death of such member, then all right and claim of any and every person to such death benefit shall wholly cease and determine. Such application shall state the name and date of the death of the deceased member, a statement of the facts on which such claim is based shall be verified by the oath or affidavit of the applicant and shall be accompanied by the official report of such death or certified copy of such report. In case the designation of the beneficiary of any such death benefit is made by a will the original of which is required by law to be filed in court, a certified or sworn copy of such will in lieu of the original may be deposited. Want of knowledge of the death óf a deceased member, or of his membership, or of the liability of the union to pay such death benefit, or of any other fact, thing or happening shall not operate to extend the time for the doing or performing of any act or thing herein required to be done or performed by any beneficiary or claimant of any interest in or to any such death benefit.”</p> <p>The plaintiff’s brother died on February 16,1917. On March 15, the plaintiff filed with the defendants an affidavit, stating among other facts, “that I am the oldest sister of William M. Silberstein, late a member of Cigarmakers’ Union No. 97 of Boston, and that since the death of my late father, Abraham T. Silberstein in 1906 and of my late mother, Cecilia Silberstein in 1911, I have lived with my three brothers and one sister, keeping house for all of them and relying wholly upon them for my support and maintenance, that one of my said brothers has no trade and is frequently out of employment and that the income of my two surviving brothers has always been uncertain and precarious, and that my sister has been out of employment since October of 1916. ... I have never been fitted by training or experience to earn my own livelihood and have since 1906 derived my entire support from my said brother William M. Silberstein. . . . William M. Silberstein, being the only member of the family with a trade was steadily employed and paid mainly for the upkeep of the household, and in addition paid for my personal support, the other members of the family being unable so to do, they only supporting and maintaining themselves.”</p> <p>Being advised that the defendants did not consider the foregoing affidavit sufficient in its statement of dependency, the plaintiff on May 15 filed a further affidavit setting forth she was a sister of the deceased member of the defendant Union, and “that during the lifetime of said William M. Silberstein I, the deponent, was and have been and was at the time of his death dependent for my support and maintenance upon the said William M. Silberstein; that I am informed and believe that said William M. Silberstein during his membership in said Union made no designation of a beneficiary in accordance with the Constitution of the said Cigarmakers’ International Union of America and I hereby make claim to the same as a sister and dependent of said William M. Silberstein in accordance with the Provisions, Section 144c and other pertinent sections of the Constitution of. said Cigarmakers’ International Union of America. ... I further depose and say that I have given this notice in compliance with the requirements of Section 144c and other pertinent sections of the Constitution of the Cigarmakers’ International Union of America and if said notice is in any way defective or insufficient I respectfully request you to call my attention to what particular or particulars may be lacking to make said notice strictly in accordance with the requirements of the Constitution of said Union that I may not, through inadvertence or mistake, be deprived of the death benefit to which I claim to be entitled in accordance with the Provisions of said Constitution.”</p> <p>Other material evidence and findings of the judge are described in the opinion. A final decree was entered on October 14, 1920, directing the defendants to pay to the plaintiff $648 and costs of suit taxed at $40.76. The defendants appealed.</p>

<p> Building Laws. Mandamus. Equity Jurisdiction. </p> <p>If a superintendent in charge of the construction of and preparation of the plans for an addition to a school house, after plans which he had filed with the supervisor of plans in accordance with St. 1913, c. 655, § 15 (now G. L. c. 143, § 15), had been disapproved by the supervisor, who had given directions for certain changes in their provisions relating only to ventilation, nevertheless proceeded with the construction of the alterations in accordance with the original plans, he may be convicted and sentenced under § 16 of the statute, although the system of ventilation provided and installed by the superintendent was reasonable and adequate, as also was that prescribed by the supervisor, and the requirements of the supervisor relating to ventilation were not necessary to prevent the spread of fire or its communication from any steam boiler or heating apparatus in the building.</p> <p>It seems that, if the supervisor, in the circumstances above described, exceeded his authority and the approval of the superintendent’s plans was improperly withheld, the superintendent’s remedy was not to proceed in defiance of the supervisor’s orders but was by a petition for a writ of mandamus compelling approval of the plans or by proceeding under § 55 of the statute.</p>

<p>Reed or Personal Property. Fixture. Mortgage, Of real estate.</p> <p>Upon one of two adjacent lots, owned by the same person, was a brick building consisting of stores and apartments, and that lot was subject to a mortgage. In this block the owner installed a heating plant adequate for heating the entire building. Afterwards he built upon the adjacent lot a garage with a party wall between the buildings, and, to heat it, installed in the basement of the first building a cast iron sectional steam boiler, four feet wide, five feet long, and five feet high and weighing from two and one half to three tons, set on the floor and not fastened to the building. In order to remove this boiler without damage to the building or to the boiler itself, removal would have to be by sections. It was connected with the garage by a six-inch main steam pipe and pipes and coils therein, and with one end of the brick building by a three-inch main or pipe, and connections easily could have been made between the coils in that part of the brick building and the main heating plant. While the main purpose of the owner in installing the boiler was to heat the garage, he used it as an auxiliary in heating between one seventh and one sixth of the brick building, one sixth of the heat for the boiler being used in that building. A judge, who without a jury heard an action of tort for conversion of the boiler brought by the original owner ■ of both lots against one who had acquired title to the brick building containing, the boiler through a sale in foreclosure of the mortgage thereon, having found the foregoing subsidiary facts, also found that the purpose of the plaintiff was not to make the boiler a part of the brick block property, but rather to promote the object for which the garage was erected, that the use to which the boiler was put in connection with the heating of the brick block was merely incidental and subsidiary to his main object, and that the plaintiff’s intention in this respect was not secret and undisclosed but was reasonably to be inferred from the external and visible physical surroundings and conditions; refused to rule that the boiler was realty, and found for the plaintiff. Held, that</p> <p>(1) The intention of the plaintiff as to the boiler could not be determined by his undisclosed purpose but was to be ascertained from his acts and the inferences to be drawn from what was external and visible;</p> <p>(2) The fact, that the boiler could be removed from the brick building, was immaterial;</p> <p>(3) The rational inference to be drawn as to the intention of the plaintiff as manifested by his acts was that he intended that the boiler, when placed in the brick block, with its connections would become a part of the building;</p> <p>(4) Upon the subsidiary findings made by the judge, it could not properly be found that the plaintiff did not intend to make the boiler a part of the block property;</p> <p>(5) ' The boiler was realty and the action could not be maintained.</p>

<p>Contract against the executor of the will of Henry P. Tufts, late of Winthrop, individually, for the collection of a tax assessed for the year 1916. Writ dated April 4, 1919.</p> <p>In the Superior Court, the action was heard by Morton, J., without a jury, upon a “statement of agreed facts.” Material facts so agreed to are described in the opinion. The judge found for the plaintiff on the statement of agreed facts and assessed damages in the sum of $477.90, and judgment was entered accordingly. The defendant appealed.</p>

<p>Two actions of tort, respectively to recover for the conscious suffering and the causing of the death of John Kashinski and Leo Nawrocki. Writ dated September 22, 1919.</p> <p>The plaintiff in the substituted first count in each action alleged “that, on September 13, 1919, while her intestate was lawfully in the basin of the Connecticut River below the defendant’s dam at Turners Falls in Montague of said County, in the exercise of due care, the defendant, by itself, its agents, servants or employees, in utter disregard of the serious and probable consequences which it or they knew, or .ought .to have known, were likely to follow and, in violation of its duty to abstain from intentional, wanton or reckless conduct exposing her intestate to danger and, knowing that persons were likely rightfully to be in said basin and likely thereby to be placed in great peril, without warning, negligently, wantonly and recklessly opened the gates in said dam causing the waters from above, thereby, violently and with great force to rush down and drown her intestate.”</p> <p>The second count in each declaration was under St. 1907, c. 375 (now G. L. c. 229, § 5); and the third count was for conscious suffering. The proceedings at a previous trial of the actions and upon the defendant’s exceptions in this court are described in the opinion.</p> <p>The actions were tried a second time before Aiken, C. J., when the plaintiff abandoned the third count in the declaration. Upon the substituted first counts and the second counts, verdicts were ordered for the defendant, and the plaintiff was not permitted to read the second counts to the jury. The plaintiff alleged exceptions in each action.</p>

<p>Probate Court, Report, Appeal, Insolvent estate. Executor and Administrator. Insolvent Estate of Deceased Person.</p> <p>A judge of probate, in making a report to this court of certain questions which arose at a hearing on a petition by an executor for the appointment of commissioners to hear claims against the estate of the testator, represented by the executor to be insolvent, stated: "On the representation and on the foregoing facts it appears that said estate of the deceased will probably be insufficient for the payment of his debts.” Held, that this must be interpreted to mean that the judge found that the estate was probably insolvent.</p> <p>Sections 2, 4 of G. L. c. 198, are mandatory and, if a judge of probate, upon a representation by an executor has found the testator’s estate to be insolvent, he has no discretion to dismiss a petition by the executor for the appointment of commissioners to hear claims nor to dismiss it without prejudice, but he must proceed either to appoint commissioners under § 2 or to hear claims himself under § 4.</p> <p>The Probate Court, after adjudicating upon a representation of the insolvency of an estate of a deceased testator but without making any interlocutory order or decree upon a petition by the executor for the appointment of commissioners under G. L. c. 198, § 2, has no jurisdiction to report to this court for determination the questions, whether the pendency in that court of the representation, without further action for the time being by that court by the appointment of commissioners under § 2 or by the court proceeding itself to hear claims under § 4, is an absolute bar to the bringing by any creditor of a suit in equity in the Supreme Judicial Court to establish liability of the testator for his conduct as a director of a trust company, and whether, if such pendency is an absolute bar to the bringing of such a suit, the Probate Court has power on the above facts and in the exercise of its discretion to dismiss the representation of insolvency without prejudice.</p>

<p>Three actions of contract upon policies of insurance alleged to have been issued by the defendant. Writs, in the first action dated July 15, 1918, and in the second and third actions dated December 16, 1919.</p> <p>In the Superior Court, the actions were tried together before White, J. Material evidence and exceptions saved by the plaintiff are described in the opinion. At the close of the evidence, verdicts were ordered for the defendant, and the judge reported the actions to this court “for its determination upon all of the exceptions taken during the trial to the admission or exclusion of evidence and so as to cover the claim of the plaintiffs that by the recital in the policies of the receipt of the premium the defendant is estopped from denying that it was so received, and the claim of the plaintiff that what took place on February 16, 1918, in regard to the premium, together with the talk between the insured and the insurance agent, amounted to payment, and that the check was in the hands of the defendant company by virtue of being subject to call by the insurance agent. If, upon the evidence which has been properly admitted, the foregoing facts agreed upon and such other evidence as has been offered and not admitted which should have been admitted, verdicts should not have been ordered for the defendant, judgment is to be entered for the plaintiff in the case in which Esther Ansin is plaintiff, in the sum of $5,000, together with interest thereon at six per cent from March 1, 1918; and judgment for the plaintiff in the action in which Esther Ansin, guardian of Charlotte Ansin, is plaintiff, in the sum of $2,500, together with interest thereon at six per cent from March 1, 1918; and judgment for the plaintiff in the action in which Esther Ansin, guardian of Mildred Ansin, is plaintiff, in the sum of $2,500, together with interest thereon at six per cent from March 1, 1918. If verdicts should have been directed for the defendant, upon such evidence, judgment is to be entered for the defendant in each action.”</p>

<p>Bill in equity, filed in the Probate Court for the county of Hampshire on March 18, 1921, by the trustees under the will of Whiting Street, late of Northampton, for instructions.</p> <p>Material portions of the will of Whiting Street provided in substance as follows:</p> <p>"Item 5. I give and bequeath to the persons hereinafter named as Trustees under this Will, the sum of One Hundred and Twelve Thousand Five Hundred (112,500.) Dollars, to hold, strictly in trust, for the following uses and purposes, and subject to the following conditions and limitations, viz.</p> <p>“ 1st. To pay to the Inhabitants of the following named towns and city, all in the Commonwealth of Massachusetts, respectively, in their corporate capacity as towns and city, in trust, for the relief and comfort of the worthy poor of said towns and city who shall not be in the Almshouse, nor be town or city paupers as follows. [Here follow the names of twenty-one towns and one city each followed by a specification of a sum, the “net annual income” of which the municipality was to receive. The entire principal, the income of which thus was disposed of, amounted to $106,000.3</p> <p>“2d. To pay to the First Congregational Society in Holyoke the net annual income of Five Thousand (5,000.) Dollars.</p> <p>“3d. To apply the net annual income of Five Hundred (500.) Dollars for the adornment and improvement of the Cemetery in Holyoke, which is located on the highway leading from Northampton to Holyoke.</p> <p>“4th. To apply the net annual income of One Thousand (1,000.) Dollars, to the support and maintenance of the Catholic Orphan Institution situated on Dwight Street in Holyoke, called ‘The House of Providence.’ ”</p> <p>“Item 6. After the payment of the legacies above named, all the residue of my estate of every description, real and personal, I give, devise and bequeath to [certain named persons3 . . . and to their successors, as Trustees, to hold the same, strictly in Trust, for the following uses and purposes, and subject to the following conditions and limitations, viz.</p> <p>[Paragraph 1 of item six provided for the payment of the income and part of the principal of one third of the trust fund constituted by that item for the benefit of the testator’s grand nephew, Whiting Bradley Street and Mrs. Nancy Perkins, both of whom were alleged by the plaintiffs to have died, and that, upon the death of both of them, “all the residue and remainder thereof shall be added to the remaining two thirds (or six ninths) of the aforesaid residue of my estate. ”3</p> <p>[Paragraph 2 of item 6 provided that the trustees should apportion the net income of two thirds of the trust fund constituted by the item to three nieces of the testator, one of whom was Harriet Adaline Street, afterwards married to Joseph E. Houston, who with four children survived her. This paragraph closed as follows fj</p> <p>“And upon the occurrence of the death of either of my said nieces, the said Trustees shall annually pay over to her heirs at law the income of the two-ninth parts of said residue; and when Whiting Bradley Street, Mrs. Nancy Perkins, . . . [and the three nieces3 shall all have deceased, the said Trustees shall pay over to the heirs at law of each niece, the two-ninth parts of said residue, the use [of3 which for her life is given to her by this Will, together with all the unexpended income thereof, which shall remain at the time of her death.</p> <p>“ Item 7. As soon as the said Whiting Bradley Street, Mrs. Nancy Perkins, and the three nieces shall all have deceased, the aforesaid sum of One Hundred and Twelve Thousand Five Hundred (112,500.) Dollars, given to the Trustees under this Will, in trust, with any undistributed interest accrued thereon, shall be paid over by said Trustees, as follows.</p> <p>“To the Inhabitants of the following named towns and city, to each town in its corporate capacity as a town, and to the city in its corporate capacity as a city, in trust, the income thereof to be annually appropriated for the relief and comfort of the worthy poor of said towns and city, who shall not be in the Almshouse, nor be town or city paupers.</p> <p>[Here followed the names of the city and twenty-one towns designated under the first paragraph of item 5, with the same amount set opposite each name as was named in item 5 to designate the principal whose income was to be paid thereunder. This paragraph and item then continued:]</p> <p>“To the First Congregational Society of Holyoke, the sum of Five Thousand (5,000.) Dollars, in trust, on [certain conditions not now material.] . . .</p> <p>“The remaining part of said sum of One Hundred and Twelve Thousand Five Hundred (112,500.) Dollars, to wit, the sum of Fifteen Hundred (1,500.) Dollars, said Trustees are authorized to appropriate and dispose of at their discretion.”</p> <p>• Other material allegations in the bill are described in the opinion. Instructions were sought on the following questions:</p> <p>“First. Who are entitled to receive the increment or increase in the capital of the trust fund of $112,500?</p> <p>“Second. Have the petitioners authority to appropriate and dispose of said sum of fifteen hundred, its increment and income, as they have hereinbefore proposed and desire to do, as donees of the power given them in said Item 7?</p> <p>“Third. Was the said Joseph E. Houston entitled to receive during the time he lived after the death of his wife, said Harriet A. S. Houston, one-third or any part of the income his wife would have received had she been living during that period?</p> <p>“ Fourth. Is the legal representative of said Joseph E. Houston, viz: — said Vena M. Houston, entitled to receive one-ninth or any part of the residuary trust fund held by your petitioners under Item 6 and if so, how much?</p> <p>“Fifth. Is any portion of the trust estate now held by said trustees, and especially the excess of principal held by them under Item 5 and 7 on account of its increase over $112,500., intestate estate, and if so, is it the duty of said trustees to pay such excess to the surviving executor of said will?</p> <p>“Sixth. Is it the duty of the Trustees to pay the income, which had accrued during the life of said Harriet Adaline (Street) Houston on her said two-ninths of the residue and which was not paid to her during her life, to her legal representative as a part of her estate, or to her heirs at law?</p> <p>“Seventh. Your petitioners pray for such other and further directions and relief, as may be found necessary to enable them to make a proper distribution of all trust funds in their hands, as trustees aforesaid, and for their full protection in making such distribution.</p> <p>“Eighth. Are the municipalities and other beneficiaries named in said will in items 5 and 7 entitled to receive the legacies conditionally given to them therein and if so how much is each entitled to receive? ”</p> <p>The suit was heard by Bassett, J., who found that all the municipalities had complied with certain conditions imposed in the will; that Joseph E. Howard had died on March 21, 1920, and reserved and reported the case for determination by this court.</p> <p>The case was submitted on briefs.</p>

<p>Evidence, Competency, Extrinsic affecting writings.</p> <p>Where, in a suit in equity to regain possession of a motor truck to which the plaintiff claims title, it appears that the defendant purchased the truck from a third person who had possession of it and the plaintiff introduces evidence tending to show that he, the plaintiff, sold the truck to the third person by a contract of conditional sale under which the plaintiff retained title until the truck was fully paid for and the third person was given no right to sell or to mortgage it, the defendant should be permitted to introduce evidence tending to show the course of business between the plaintiff and the third person before as well as after the making of the contract of conditional sale for the purpose of showing the real contract between them and that the third person impliedly was authorized to make the sale to the defendant.</p> <p>The rule excluding paroi evidence to vary or to contradict an instrument in writing is not infringed when one, who is not a party nor privy to the instrument and who does not claim under it, seeks to show that it did not constitute the real contract between the parties.</p>

<p>Tort for personal injuries and damage to the plaintiff’s motor car through collision with a street car of the defendant on December 21, 1916. Writ dated January 19, 1917.</p> <p>In the Superior Court, the action was tried before White, J. Material evidence is described in the opinion. At the close of the • evidence, a verdict was entered for the defendant by order of the judge and the action was reserved by him for report to this court under an agreement that judgment was to be entered for the plaintiff in the sum of $800 if the action should have been submitted to the jury; otherwise, judgment was to be entered upon the verdict. After the resignation of White, J., the report was made by Sanderson, J.</p>

<p>Negligence, Street railway, Res ipso loquitur. Evidence, Inference.</p> <p>At the trial of an action by a woman against a street railway company for personal injuries caused by her falling under a street car from which she was alighting in a rural district, the plaintiff’s contention of negligence was founded wholly on an alleged failure of the defendant to provide a car with a running board placed ata reasonable distance from the ground, and the only evidence favorable to the plaintiff upon that contention was testimony of an expert. It appeared that the distance from the running board from which the plaintiff alighted to the top of the rail was twenty inches, and there was uncontradicted evidence that, “owing to the fact that there was a slight rise in the highway from the rail toward the middle of the street, the distance from the running board to the highway at the point of the accident was eighteen inches.” The plaintiff’s expert testified that it was “practically possible to have lowered the running board” of the street car, that in 1915 he had under his supervision as foreman in the employ of the Boston Elevated Railway Company no car where the running board measured more than seventeen inches above the track. He did not indicate how much lower the running board could have been made with safety on the car from which the plaintiff alighted, or upon any car of that type. Held, that</p> <p>(1) Negligence was not inferable from the accident;</p> <p>(2) It was not a matter of common knowledge, but was wholly conjectural how much the running board on the car in question could have been lowered with safety to the public;</p> <p>(3) The evidence was insufficient to warrant a finding that there was negligence in the maintenance of the running board.</p>

<p>Contract, Based upon statute of another State. Conflict of Laws. Executor and Administrator. Limitations, Statute of. Evidence, Foreign law. Practice, Civil, Findings by judge, Exceptions, Amendment. .Judgment. Jurisdiction.</p> <p>Section 1837 of the New York Code of Civil Procedure provides in substance that an action "may be maintained . . . against the surviving husband or wife of a decedent, and the next of kin of an intestate, or the next of kin or legatees of a testator to recover, to the extent of the assets paid or distributed to them, for a debt of the decedent, upon which the action might have been maintained, against the executor or administrator. The neglect of the creditor to present his claim to the executor or administrator, within the time prescribed by law for that purpose, does not impair his right to maintain such an action.” Held, that</p> <p>(1) The liability thereby created depends upon the contract of the ancestor and is not based upon the assent or agreement of the defendant in an action based upon the statute;</p> <p>(2) The statute creates a right to enforce a liability existing at the death of the ancestor, is based upon the general principle, that the estate of an individual shall be applied to the payment of his debts, and under it the distributee or legatee is entitled only to that which remains after just claims existing against the ancestor at the time of his death have been discharged;</p> <p>(3) The liability cast is not by way of punishment;</p> <p>(4) The nature and incidents of the right created are such as are found in ordinary transitory actions;</p> <p>(5) The enforcement of the statute in this Commonwealth is not contrary to public policy;</p> <p>(6) The liability created by the statute can be enforced in this Commonwealth consistently with our procedure and with substantial justice.</p> <p>An action under the New York statute above described was brought by an executor of the will of a New York decedent, who was appointed in probate proceedings in this Commonwealth ancillary to proceedings in the State of New York, against minor next of kin of the debtor of the plaintiff’s testator, domiciled here, to whom the debtor’s estate had been distributed. Guardians of the defendants, who had been appointed in probate proceedings in this Commonwealth, also were appointed as guardians in ancillary proceedings in the State of New York, and the payments in distribution of the debtor’s estate had been made to such ancillary guardians, by whom they were transferred, substantially intact, to the Massachusetts guardians. Held, that</p> <p>(1) The fact that payments from the debtor’s estate were to the defendants’ guardians was not a defence;</p> <p>(2) The fact that the defendants were minors was not a defence;</p> <p>(3) The provisions of the special statute of limitations relating to actions against fiduciaries, G. L. c. 260, § 11, were no defence;</p> <p>(4) The action was not barred by the statute of limitations of the State of New York. .</p> <p>The action above described.came before this court upon exceptions by the defendants to findings for the plaintiffs, and it was remarked that it was stated in the exceptions that “it is not claimed that the plaintiff’s right of action, if any, is barred by the Massachusetts statute of limitations.”</p> <p>The action above described was heard by a judge without a jury and an exception by the defendants to the computation of damages assessed by the judge was overruled because it might have been based upon certain findings of the judge as to the law of the State of New York, supported by evidence before him, which, being a finding of fact, in the circumstances was not reviewable upon exceptions.</p> <p>The action above described was against two next of kin of the debtor intestate jointly and the judge’s findings assessed damages against the defendants severally and in different amounts. No argument was addressed to the court as to the impropriety of separate judgments against the several defendants in this form of action. Nevertheless of its own motion the court held, that</p> <p>(1) No agreement or assent of the parties will enable the court to render a judgment which the law does not warrant;</p> <p>(2) No authority exists in this Commonwealth for the entry of several judgments in this kind of action;</p> <p>(3) The merits of the entire controversy not being affected, leave should be given the plaintiff to amend by discontinuing as to one defendant.</p>

<p>Tort for personal injuries alleged to have been caused by the plaintiff being thrown down inside an electric street car of the defendant when she had left her seat to alight. Writ dated September 25, 1918.</p> <p>In the Superior Court, the action was tried before Dubuque, J. Material evidence is described in the opinion. At the close of the evidence, by order of the judge, a verdict was entered for the defendant; and the plaintiff alleged exceptions.</p>

Tort for personal injuries received by a boy four years and eleven months old when a wagon, alleged to have been owned by the defendant and negligently driven and managed by its servants or agents, was backed upon him. Writ dated December 19,1918. In the Superior Court, the action was tried before Sanderson, J. Material evidence is described in the opinion.

<p>Trust, Validity; Construction; Charitable: for “womens rights,” for “temperance,” for “the best interests of Sewing Girls in Boston.”</p> <p>A testator who died in 1890 by a will which he made in 1873 gave the residue of his estate to a trustee, directing that the balance of the income, after the payment of certain annuities, be divided “into three equal parts and expended by him or given away by him in such manner as will in his judgment best promote the causes (1) of womens rights (2) of temperance and (3) the best interests of Sewing Girls in Boston — and if for any reason the Courts have held or shall hold that a devise, bequest or a trust for either of these causes is invalid, I give the share of the balance of the net income of my estate which would otherwise be paid or expended for such cause to” three designated friends “and the survivors and last survivor of them, to his, her or their sole use and behoof wholly free from all trusts and so that he, she or they may keep to his, her or their own use or expend or give away said sums as he, she or they shall think expedient.” On the death of the last annuitant, the residue of the estate was given to the same three friends and the survivors and last survivor of them in trust “to divide the same among such charitable and reformatory institutions and movements as he, she or they shall think most judicious and in accordance with my wishes. And if he, she or they shall deem it wise to aid the cause of woman’s rights or any other similar reformatory movement which has not as yet received the sympathy of the Courts, and any objection shall be made by any person or persons to such disposition of my estate, so that the Court may hold or be likely to hold such appropriation of my estate to be invalid, I give the whole residue of my estate to” the same three friends “and the survivors and last survivor of them in fee simple wholly free from all trust whatever. . . .” While one of the annuitants still survived and after the death of the testator’s three friends, two of whom had survived him, and the adoption of arts. 18 and 19 of the Amendments to the Federal Constitution, the trustee under the will brought a suit in equity for instructions. Held, that</p> <p>(1) The words “womens rights” must be construed in the usual and ordinary sense in which they were intended to be used by the testator at the time of his death;</p> <p>(2) For many years before and after the testator’s death in 1890 the phrase “ womens rights” had a definite and well defined meaning and in common parlance was understood as being the right of women to vote, to hold office and be placed upon an equality with men in a political sense by appropriate legislation;</p> <p>(3) There was no express provision in the will that the trust was created for the advancement or betterment of the social, business, industrial, or economic condition or status of women, nor can it be inferred from the words used;</p> <p>(4) The trust for the benefit of the cause of “ womens rights” was invalid as a public charity;</p> <p>(5) In view of the provision that, if the court should hold that the trust for womens rights was invalid, the entire estate so divided should vest in the three friends and the survivors and last survivor of them in fee simple free from the trust, no occasion was presented for an application of the cy pres doctrine;</p> <p>(6) The trust as to the third of the residue, initially to be devoted to the cause “of womens rights” if legally possible or if no objection was made, could not be sustained as a private trust, neither the purposes nor the persons to be benefited being determinable;</p> <p>(7) During the life of the remaining annuitant and subject to his rights, the income of one third of the residue of the estate which constituted the trust was to be paid to the executor of the will of the survivor of the three friends;</p> <p>' (8) The trust for the cause “of temperance” was for the bettering of the condition of people who suffer from the injurious consequences of intemperance caused by the use of intoxicating liquors, was a valid public charitable trust, and was not affected by the adoption of art. 18 of the Amendments to the Federal Constitution;</p> <p>(9) The trust to promote “the best interests of Sewing Girls in Boston” applied to an indefinite number of a particular class, not only included within its objects the relief of poverty and distress among the members of that class but also comprehended within its spirit and intendment whatever added to their welfare and advancement and enabled them to establish themselves in life; and was valid.</p> <p>The construction of all instruments involving trusts for charitable purposes is liberal in their behalf.</p> <p>A gift to a public use is not unlawful as a charity because it is not for the purpose of relieving poverty.</p>

Bill in equity, filed in the Supreme Judicial Court for the county of Suffolk on October 19, 1916, by the trustee in bankruptcy of Trowbridge Piano Company against Franklin C. Henderson, Franklin C. Henderson Company, Melbourn A. Marks and Frederick M. Kilmer, for an accounting by the first two defendants as to profits realized by them from sales of pianos purchased at unwarrantably low prices from the Trowbridge Piano Company, of which the defendant Henderson was alleged to…

<p>Bill in equity, filed in the Superior Court on July 27,1920, to set aside, on the ground of mistake, fraud and false representations, an instrument in writing executed by the plaintiffs conveying all their right, title and interest as heirs at law and next of kin of Nancy E. Colburn in her estate, both real and personal, to the defendant Andrew H. Hodgdon in trust to dispose thereof in accordance with the terms of her will, of which he was executor, and assenting to his appointment as administrator of her estate.</p> <p>The suit was referred to a master, who filed a report containing findings, which, so far as material, are described in the opinion. The plaintiffs filed exceptions thereto and a motion to recommit the report which were heard by Wait, J., who denied the motion and by whose order an interlocutory decree was entered overruling the exceptions to the master’s report and confirming the report. The plaintiffs’ exceptions to the master’s report, so far as material, and the findings of the judge are described in the opinion. Later by order of Sanderson, J., a final decree was entered dismissing the bill. The plaintiffs appealed from both the interlocutory and the final decree.</p>

Tort for an unlawful entry upon the plaintiff’s land and the building thereon of a platform and steps which caused surface water to be drained upon the land. Writ dated January 18, 1921.

<p>jEvidence, Competency, Of value. Mortgage, Discharge.</p> <p>At the trial of an action at law to recover damages in contract or tort for the alleged wrongful discharge of a mortgage, the record in a suit in equity involving the validity of the mortgage, in which the plaintiff in the action at law was a party and the defendant was not a party and in which the final decree declared that the mortgage was fraudulent and that the plaintiff in the action at law had no title under it, is admissible for the purpose of showing that the mortgage was of no value and that by discharging it the defendant had done nothing which in any way injured the plaintiff.</p>