level between the surface where the brook first touched and where it left his land.

3. It was error not to admit evidence as to the value of lands which would be flowed by plaintiff's dam if he kept a full reservoir, in estimating the value of his land as a mill site, in an action for damages for the taking of such land by a town under St. 1891, c. 252.

Exceptions from superior court, Hampshire county; Henry K. Braley, Judge.

Petition by L. G. Fales against the town of Easthampton for assessment of damages. Judgment for plaintiff, and defendant excepts. Exceptions sustained.

Wm. G. Bassett, for petitioner. A. J. Fargo and John A. Aiken, for respondent.

LATHROP, J. This is a petition for the assessment of damages occasioned to the petitioner by the taking of certain water rights and by laying of pipes in his land under St. 1891, c. 252, entitled "An act to supply the town of Easthampton with pure water." At the trial in the superior court there was evidence that the petitioner was the owner of a dam across a stream called "Bassett Brook," which dam had been built by the plaintiff's grantor, partly at his own expense, and partly at the expense of the respondent,-there being a highway across the dam,-and that the petitioner owned land above the dam and land below it. The respondent partly divert ed the water of the stream; and laid pipes in the land below the dam. It seems to have been taken for granted at the trial that, although the petitioner had a valuable dam, he had no water power of any practical value, except by flowing the land above,-the evidence being uncontradicted that the water could be raised only two feet before flowing the land of the upper riparian owners,-and the respondent asked that the evidence as to the value of the water power be limited to the power to be obtained by flowing only the petitioner's land. The presiding judge, however, admitted evidence to show the uses which could be made of the waters of the brook with such a reservoir as could be made by the dam. There was evidence that a full reservoir as high as the dam would flow a valley nearly one mile long, the greater part of which was beyond the plaintiff's land. While this evidence was admitted, the presiding judge excluded evidence offered by the respondent as to the value of the lands which would thus be flowed. Neither the petitioner nor his grantor had a mill on the stream, though there was evidence that the petitioner contemplated building one there. The jury were instructed, in substance, that in estimating damages they were to allow the petitioner nothing on account of the dam; that they were to take into account the facts that the petitioner could flow back only about 80 rods on his own land, by doing which he could raise a head of no practical value; that, by raising a head of water of practical use, lands belonging to others would be flowed, which he could not do without pay

ing them adequate damages therefor; that damages were not to be awarded in reference to the particular situation or circumstances or plans of the owner; but that they might award him such damages as he sustained by the taking of such water and rights as the respondent had been shown

by the evidence to have taken, and such damages to his land as it had suffered by the laying of pipes in it, in view of such uses as the same, considered as property, could be profitably applied to, as shown by the evidence. The bill of exceptions states that the evidence was carefully limited to show the beneficial use to which the water power of the petitioner, in connection with his land, could be put, and with reference to the feasibility of using the same as a mill privilege. The respondent asked the judge to instruct the jury that the petitioner's water power consisted in the difference of level between the surface where the brook first touched and where it left his land. The judge declined to give this instruction. The jury found for the petitioner, and the case comes before us on the respondent's exceptions to the rulings of the presiding judge.

The first question which arises is as to the construction of the bill of exceptions. It is not entirely clear whether the jury were allowed, in estimating the value of the land taken, to take into consideration its value as a mill site, not only in connection with the water power which the petitioner then possessed, but also in connection with the right which the petitioner might acquire, by building a mill, to flood the lands on the stream above his own. It seems to us that a fair construction of the bill of exceptions shows that the jury were allowed to take the latter element into consideration. Assuming this to be so, the question arises whether they were properly allowed so to do, and we are of opinion that they were. Section 4, c. 252, St. 1891, provides that the town "shall pay all damages sustained by any person or corporation in property by the taking of any lands, right of way, water, water course, water right or easement, or by any other thing done by said town under the authority of this act." The rule is well settled in a case of this kind, where property is taken by the right of eminent domain, that the jury are to consider, not only the value of that which is taken, but also the effect of the taking upon that which is left; and as is stated by Mr. Justice Knowlton in Maynard v. City of Northampton, 157 Mass. 218, 31 N. E. 1062, "in estimating the value of that which is taken they may consider all the uses to which it might properly have been applied if it had not been taken. In like manner, the effect on that which is left should be estimated in reference to all the uses to which it was naturally adapted before the taking. Damages are not to be awarded in reference to the peculiar situation or circumstances or plans of the owner, or to the business in

which he happens to be engaged; but any and all of the uses to which the land, considered as property, may profitably be applied, whether contemplated by the owner or not, may well be taken into account by the jury.” See, also, Boom Co. v. Patterson, 98 U. S. 403. It is true, as the respondent contends, that the mere existence of a dam upon the petitioner's land did not give him any right to flow the lands of other persons, further up the stream, under Pub. St. c. 190. Fitch v. Stevens, 4 Metc. (Mass.) 426. But a lot of land on a stream, suitable for a mill site, may have a greater market value on this account than it would have if it were not suitable for a mill site. There is undoubtedly a limit to the questions which may be asked concerning the possible future use of land. Gardner v. Brookline, 127 Mass. 358, 362. And to some extent this is a matter of discretion on the part of the presiding judge. Providence & W. R. Co. v. City of Worcester, 155 Mass. 35, 29 N. E. 56. If we regard the question as one of discretion, the judge has exercised his discretion in favor of the petitioner. The question to be determined is the fair market value of that which is taken and that which is left. In considering the uses to which the property may be put, the element of chance or probability may enter, to some extent, into the market value, and be considered by the jury. Moulton v. Water Co., 137 Mass. 163. In the case at bar we see no error in the evidence admitted, or in the rulings given. As to the ruling requested, defining what the petitioner's water power was, while it has the great authority of Chief Justice Gibson in its support (McCalmont v. Whitaker, 3 Rawle, 84, 90), we are of opinion that the refusal to give it affords the respondent no ground of exception. No question was made as to the extent of the plaintiff's water power, and the jury were expressly instructed that they were to allow nothing on account of the dam, and that they were to take into account the facts that the petitioner could flow back only about 80 rods on his own land, by doing which he could raise a head of no practical value, and that, by raising a head of water of practical use, lands belonging to others would be flowed, which he could not do without paying them adequate damages

therefor.

In the opinion, however, of a majority of the court, the judge erred in refusing to admit the evidence offered by the respondent of the value of the lands which would be flowed by the petitioner's dam if a full reservoir were maintained. Whether the petitioner's land had any value as a mill site depended largely upon whether it was a practicable matter to flow the lands above. In determining this, the value of those lands would necessarily enter as an important element to be considered. They might be of so great a value that no man of reasonable prudence would consider that it was prac

ticable to build a mill and flow the lands. While the jury were instructed that they were to consider that the lands could not be flowed without the petitioner paying adequate damages, evidence of an essential element in considering what these damages might be was excluded. It is suggested that the judge had a right, in the exercise of his discretion, to exclude the evidence. But when he allowed the petitioner to go fully into a possible use of the land, and that a remote and contingent one, to reject evidence in reply tending to show such a use to be impracticable would be going beyond a legal discretion. Exceptions sustained.

KNIGHT v. KNIGHT et al. (Supreme Judicial Court of Massachusetts. Essex. Nov. 30, 1894.) CONSTRUCTION OF WILL-DEVISE TO WIDOWABSOLUTE ESTATE.

After devising six-sevenths of his real and personal estate to his children, decedent's will continued: "The other seventh I give and devise to my wife, to be disposed of as she shall think best"; but "any part of her said seventh" not disposed of at the time of her decease "shall be equally divided among my said six children. The devise and bequest made to my wife is made to her in lieu of dower and distributive share." Held, that the widow took the absolute property in said seventh.

Report from supreme judicial court, Essex county; James M. Barker, Judge.

Petition by Samuel Knight, executor, against Henry P. Knight and others for instructions as to distribution under his testator's will. Decree entered on report.

John Knight died July 31, 1881, and Deborah C. Knight, his widow, died October 19, 1893. She was the second wife of John Knight, and was the mother of the defendants. Edward S., Augustus S., and John C. Knight. John Knight left, at the time of his death, real estate inventoried at about $18,000, and personal estate at about $80,000, and disposed of it in part as follows: "Fourth. All the rest and residue of my estate, real and personal, shall be divided into seven equal parts, and six-sevenths of the same shall be equally divided among my said six children. And the other one-seventh part I give and devise to my said wife, to be disposed of as she shall think best; but, if any part of her said seventh part shall not be disposed of at the time of her decease, then the part of her seventh part remaining undisposed of at her decease shall be equally divided among my said six children. The devise and bequest made to my wife is made to her in lieu of dower and distributive share of my personal estate." Deborah C. Knight, aforesaid, executed a will, which was duly admitted to probate, by which she devised and bequeathed all the estate, real and personal, which could pass by her will, to her three sons aforesaid

Blaney & Robinson, for Henry P. Knight, Samuel Knight, and Mary C. Emerson. E. T. Burley, for E. S. Knight, J. C. Knight, and A. S. Knight.

FIELD, C. J. We are of opinion that the widow of the testator took the absolute property in the one-seventh of the residue of the real and personal estate given her by the fourth article of the will. The clause to be construed more nearly resembles those construed in Ide v. Ide, 5 Mass. 499; Kelley v. Meins, 135 Mass. 231; Joslin v. Rhoades, 150 Mass. 301, 23 N. E. 48; and Foster v. Smith, 156 Mass. 379, 31 N. E. 291,-than in the cases in which it has been held that a life estate was given. It follows that Edward S., Augustus S., and John C. Knight are entitled to that part of the residue under the will of the widow, and a decree should be entered accordingly. So ordered.

ARNOLD et al. v. REED et al. (Supreme Judicial Court of Massachusetts. Plymouth. Nov. 30, 1894.)

QUIETING TITLE-DEED BY ADMINISTRATOR — AUTHORITY-RECORD OF PROBATE COURT.

The grantee in an administrator's deed, which purports to be given under an order of the probate court, though the record of that court fails to show any authority in the administrator to make the conveyance, has not a "record title," within the meaning of St. 1893, c. 340, which provides that, whenever the "record title" of real property is clouded, those interested therein may petition to compel the supposed claimant to bring action to try his claim.

Report from supreme judicial court, Plymouth county; Charles Allen, Judge.

Petition by Nathaniel W. Arnold, Justin Meserve, Ellen F. Bartlett, Samuel A. Arnold, and Josie A. Brackett, as heirs at law of Leonard Arnold, deceased, to compel Mary Reed and others, supposed claimants thereto, to bring an action to try their claim to certain real property in the possession of plaintiffs. The case is reported for the determination of the full court. Petition dismissed.

Cook & Coughlan, for plaintiffs.

FIELD, C. J. The question in this case is whether the petitioners allege and show a "record title" to real property described in the petition, within the meaning of these words in St. 1893, c. 340.1 The deeds of Charles Stetson to the petitioners Nathaniel W. Arnold and Justin Meserve, and to Leonard Arnold, who has deceased, and whose

1 St. 1893, c. 340, provides that "whenever the record title of real property is clouded" by an adverse claim, or the possibility of one, the persons interested therein, including those who would be liable by force of covenants in deeds, and those in enjoyment of an easement in the property, may petition to compel the supposed claimant to bring action to try his claim.

heirs join in the petition, purport to be given by said Stetson as administrator of the es tate of Josiah Shaw, deceased, late of Abington, in the county of Plymouth, under au order of the probate court for the county of Plymouth, whereby he was licensed and empowered to sell and convey the real estate of such deceased, etc. These deeds are substantially in the usual form of deeds by eXECUtors and administrators licensed by a probate court to sell real estate in order to pay debts and legacies. The petition alleges that said Shaw died seised and possessed of said real estate, in fee, and devised the same to his heirs at law; that Stetson was duly ap pointed administrator of his estate, with the will annexed; that on October 15, 1870, Stetson sold the property at public auction. claiming to act under a license of the probate court; that the purchasers, or those claiming under them, have been in occupation ever since; but that "said Stetson, who is now d-ceased, had no license, power, or authority, either under the will of said Josiah Shaw, or from said probate court, to sell any of the lands of which said Shaw died seised and pos sessed, nor was the condition of said.Josiah Shaw's estate such as to authorize said probate court to issue license for the sale of any part of the real estate thereof."

On the face of the record of the registry of deeds, if the recitals in the deeus given by Stetson are taken to be true, the deeds conveyed a good title; but in fact the recitals are not true, and this would appear by an examination of the records of the probate court. The probate courts are courts of reord. Pub. St. c. 156, §§ 1, 27. Deeds may convey a good title, which yet does not ap pear of record anywhere. The heirs of de ceased persons usually do not appear of record anywhere. Title by adverse possession A forged usually does not appear of record. deed conveys no title, although, if executed in the name of the record owner, it appears on the face of the record to convey a title. A deed executed by an attorney, if the power of attorney is not recorded, conveys no title of record; yet, if the attorney is authorized in fact, his deed conveys the title, as between the parties. It is to be noticed that st. 1593. c. 340, repealed Pub. St. c. 176, where the language was broader, and was not confred to a record title, and that it adopted in this respect the language of St. 1882, c. 237, and St. 1885, c. 283. See St. 1889, c. 442; St. 1890, c. 427; Leary v. Duff, 137 Mass. 147. In the case at bar the sale was absolutely void. We know of no presumption that the ecital in the deed of an administrator can be taken to be true, as against the heirs. They are the recitals of the administrator, and not of the heirs. The record of the registry of deeds and the record of the probate court, in this case, show no authority in the administrator, and he had in fact no authority. If the grantees under these deeds have a record

title, within the meaning of St. 1893, c. 340, we do not see why it must not be held that a deed which is recorded, and which purports to be executed by an attorney in the name of a principal, does not give a record title to the land of the principal, although there is no record of any power of attorney, and no authority in fact has been given. We think that such was not the intention of the statute. Whatever may be true of deeds in which the grantor purports to convey his own land, we think that the statute cannot be held to extend to deeds in which the grantor purports to convey the land of others, when no authority to make the conveyance appears of record, in the registry of deeds or elsewhere. We cannot consider in this proceeding the effect of the offer of proof that all persons interested in the estate at the time of the sale and conveyance acquiesced in the sale, and received, without objection, their shares of the purchase money, whatever may be the effect of this in a suit in equity. In the opinion of a majority of the court, this petition is not within the purview of the statute, and must be dismissed. So ordered.

1. Under Pub. St. c. 156, § 11, providing that probate appeals shall be entered with and heard as equity cases, and chapter 151, § 23, providing that "a single justice may when needful hear and determine equity cases pending in a county other than that in which such justice is sitting." a single justice may, to avoid unreasonable delay in the hearing of the case, hear an appeal from probate court in a county other than that in which the petition was presented.

2. Where no appeal was taken from the decree of a single justice allowing petitioner's claim against an estate, and directing that the list of debts be altered so as to include such claim, and said decree was filed in the probate court, the failure to amend such list of debts by including petitioner's claim did not debar petitioner from any right he had as a creditor of said estate.

Appeal from supreme judicial court, Bristol county; James M. Barker, Judge.

Petition by Henry Ripley against Benjamin G. Collins, administrator, to enforce the collection of certain assets. From the decree of a single justice affirming a decree for the petitioner, the administrator appeals. Affirmed.

petition to the probate court, representing that he was a creditor of the estate, and praying that the administrator be ordered to file a bond with sufficient sureties, and to collect certain assets of the estate, which consisted of property alleged to have been conveyed by said Grafton N. Collins in his lifetime in fraud of his creditors. On May 24, 1894, the probate court entered a decree that the administrator file a bond with sufficient sureties, and that Ripley be empowered to bring suits to recover said property in the name of the administrator, first giving a bond with sureties, to be approved by the court, conditioned to indemnify the administrator against all costs and damages growing out of said suits. From this decree the administrator appealed to the supreme judicial court. The alleged reason of appeal was that the probate court had erred in deciding that Ripley was a creditor of the estate. On motion of the petitioner, and after notice to the administrator and a hearing of the parties, a single justice of this court, sitting in equity in Boston, in the county of Suffolk, ordered this appeal to be heard in Boston on the second Tuesday of September, 1894, it appearing, as the order recites, "that unreasonable delay would result if the case were heard at the regular sitting of the court in Bristol county." The regular sitting of this court then next to be held by a single justice in Bristol county would not be held until after the regular sitting of the full court for that county, so that if the case were not heard by a single justice until the regular sitting in that county, and an appeal were taken from his decision to the full court, this appear would regularly be heard by the full court at its sitting to be held in that county in October, 1895. The single justice heard the appeal in Boston, and on September 12, 1894. entered a decree affirming the decree of the probate court, and remanding the cause to that court for further proceedings. From this decree the administrator appealed to the full court. The administrator also excepted to the order of the single justice directing the cause to be heard in Boston. The con tention of the appellant is that it was beyond the power of a justice of this court to order. the appeal from the probate court to be heard in Boston. His contention, in effect, is that the cause must be heard in the county where the petition was filed, unless both parties consent to a hearing elsewhere, and the foundation of the argument is that actions must be tried in the county in which they are brought, unless, on the ground of local pre

FIELD, C. J. The estate of Grafton N. Collins, late of Edgartown, in the county of Dukes, was represented insolvent by Benjamin G. Collins, the administrator, and Henry Ripley, on September 5, 1890, presented his

into some other county in order to insure an impartial trial. St. 1887, c. 347, § 1. Under the statutes, the supreme judicial court does not sit in the county of Dukes, and the cause could not be tried there by that court (Pub. St. c. 150, § 35; St. 1891, c. 287); but the contention of the appellant perhaps does not.

go so far as to ask that these statutes should be held unconstitutional.

We are of opinion, however, that it is unnecessary to consider what the limits of the power of this court are, under the constitution and the statutes, to try actions at common law, either with or without a jury, in other counties than that in which they were or should have been brought. This is not a suit at common law. By the constitution (part 2, c. 3, art. 5), “all causes of marriage, divorce, and alimony, and all appeals from the judge of probate shall be heard and determined by the governor and council, until the legislature shall, by law, make other provisions." Under this provision the gov ernor and council did not sit in the several counties of the commonwealth. By St. 1783, c. 46, the legislature made the supreme judicial court the supreme court of probate, and provided for appeals to that court. See Sparhawk v. Sparhawk, 116 Mass. 315. Without citing all the statutes since passed on the subject, Pub. St. c. 156, § 11, relating to probate appeals, provides that "appeals and petitions for appeal shall be entered on the same docket with cases in equity, and shall have the same rights as to hearing and determination as such cases." See Gen. St. c. 117, § 14; St. 1859, c. 237, §§ 7, 12. Pub. St. c. 151, § 23, relating to cases in equity, is as follows: "A single justice or the full court may when needful hear and determine cases pending in a county other than that in which such justice or court is sit ting, or any motion therein. All orders and decrees made on such hearings shall be transmitted to the clerk in the proper coun ty, to be by him entered." See Id. §§ 25, 30, 31, 33; Gen. St. c. 117, §§ 18-20, 22, 26; St. 1859, c. 237, §§ 7, 12; Rev. St. c. 81, § 20 et seq.; St. 1826, c. 110. When the constitution was adopted, the high court of chancery in England did not sit in the several counties, and the distribution of the assets of the insolvent estates of deceased persons in England was by a suit in equity. In Massa chusetts there is no absolute right to a jury in equity cases or in probate appeals, except as provided for by the constitution or the statutes, and this appeal is not within the provisions of the constitution or of the statutes requiring a jury trial, and none was asked for by either party. We have, there fore, no occasion to consider the scope of St. 1885, c. 384, §§ 2, 3, in common-law actions, or even in equity suits or probate appeals, because we have no doubt of the power of a justice of this court to order this appeal to be heard in Boston by virtue of other provisions of statute which we have cited, and of the rules which have been established for discouraging delays and expediting the decision of cases in equity and probate appeals. Pub. St. c. 151, § 33; Rule 5, in Order of Business in Suffolk County; Thompson v. Goulding, 5 Allen, 81.

The remaining contention of the appellant is that Ripley was not a creditor of the estate, and therefore not entitled to prosecute the petition. On this question the facts are, briefly, as follows: On September 1, 1890, the administrator represented the estate insolvent, and on the 19th day of September two commissioners were duly appointed to receive proof of claims against the estate. They proceeded to perform their duties, and made their return on July 20, 1891. In the return the petitioner is put down as a creditor to the amount of $6,000. On October 11, 1891, the administrator appealed from the allowance of this claim to the supreme judicial court, and this appeal came on to be heard at a regular sitting of this court in Bristol county. The appellant was called and made default; and the court proceeded to examine the petitioner and his witnesses, and entered a decree that the said Grafton N. Collins, at the time of his decease, was indebted to the petitioner in the sum of $6,000 and interest up to the time of his decease, amounting in all to the sum of $7,236.96; and was also indebted to the petitioner in the further sum of $98.26, and interest up to the time of his decease, amounting in all to the sum of $121.04,-and ordered that the list of debts allowed by the commissioner should be altered to conform to this decree, and remanded the cause to the probate court for further proceedings. A copy of this decree was duly filed in the probate court on February 11, 1892. On February 15, 1892, one of the commissioners resigned, and his resignation was accepted, and on the 23d day of February, 1892, another commissioner was appointed in his place. Further proceedings were had thereafter before the commissioners, and they made a report of their doings, in which hey allowed an additional claim against the estate in favor of one Abbott; but this report did not include the name of the petitioner. No appeal was ever taken to the full court from the decree of a single justice of this court allowing the claim of the petitioner. When one of the original commissioners resigned, and a new commissioner was ap pointed in his place, the claim of the petitioner, Mr. Ripley, against the estate had been established by a decree of a single justice of this court, from which no appeal had been taken, and a copy of this decree was then on file in the probate court. The proceedings of the commissioners after the new commissioner was appointed could not affect the validity of this decree, nor did their report purport to affect it. It purports to be a report of claims received and examined and "not included in the report already filed." The only want of regularity, if there be any, is that the probate court has not amended the list of claims so as to conform to the decree of the justice of this court; but this is merely a matter of form. Pub. St.