reasonable belief that the disability did not ex- Cook, Brownell & Taber, of New Bedford, for appellants. M. R. Hitch, of New Bedford, for F. H. Kelley. O. Prescott, of New Bedford, for petitioners. RUGG, C. J. This case relates to the distribution of the residue of the portion of the estate of Sylvia Ann Howland which The status of a person as to his legitimacy would have been paid to Joseph H. A. Keldepends on the law of his domicile. 4. BASTARDS TO LEGITIMACY 1-STATUS OF DOMICILE AS RECOGNITION IN OTHER The status as to legitimacy at the domicile of a person is recognized according to the principles of international law in other countries and states, including Massachusetts, unless contrary to the positive law or public policy of the sovereign power where it is drawn in controversy, or so repugnant to good morals as to be improper to recognize. 5. BASTARDS 11 LEGITIMACY OF OFFSPRING OF BIGAMOUS MARRIAGE INNOCENT ON ONE SIDE-PUBLIC POLICY. It is not contrary either to the statute law or the public policy of the commonwealth of Massachusetts that the children of a marriage, bigamous on the part of one parent, but innocent on the part of the other, should be declared legitimate to some extent and under some circumstances. ley had he been living. He entered into a legal marriage in Michigan prior to 1870 with a woman still living, where Frank H. Kelley, the issue of that marriage, was born. Joseph deserted his Michigan wife, while that marriage was in full force, and, without obtaining a divorce, settled in Indiana, where in 1876 he went through the form of marriage, which would have been valid but for his Michigan marriage, with one Rosalena Cunningham. The issue of that alliance, born and still domiciled in Indiana, were James A. Kelley and Charles B. Kelley, who were acknowledged by their father as his sons and were supported and maintained by him. Their mother had no knowledge until after their birth of any impediment to her marriage with Joseph, and no reason to believe 6. BASTARDS 11 — LEGITIMIZING ISSUE OF that he had contracted a former marriage. BIGAMOUS MARRIAGES CONTRACTED IN GOOD FAITH BY ONE PARTY. There is nothing contrary to good morals in statutes legitimizing the issue of bigamous marriages contracted in good faith by one party. 7. WILLS 481 SPEAKING FROM TESTATRIX'S DEATH. A will speaks from testatrix's death. 8. WILLS 498-"LINEAL DESCENDANTS.' "" Devise to "lineal descendants" means the legitimate immediate and remote progeny in the direct line. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Lineal Descendants.] She and Joseph continued to reside in Indiana and to be subject to its laws until his death in 1899. There was a statute of Indiana at the time of the birth of the sons and since, to the effect that: "When either of the parties to a marriage, void because a former marriage exists undissolved, shall have contracted such void marriage in the reasonable belief that such disability did not exist, the issue of such marriage, begotten before the discovery of such disability by such innocent party, shall be deemed legitimate." The question is, whether the sons born in 9. WILLS 498-DISTRIBUTEES OF RESIDU-Indiana are entitled to share with the son ARY ESTATE-ISSUE OF BIGAMOUS MARRIAGE born in Michigan in the property devised by INNOCENT ON ONE SIDE AS "LINEAL DESCENDANTS." Sylvia Ann Howland, late of New Bedford, in this state, who died in 1865. She provided by will that at the termination of a life estate, now at an end, the residue of her property should be distributed and divided "to and among all the lineal descendants then living of my grandfather, Gideon Howland, Where testatrix provided that the residue of her estate, on termination of a life estate, should be distributed and divided to and among all the lineal descendants then living of her grandfather, sons of a deceased lineal descendant of the grandfather were entitled, though their father had married their mother in Indiana, when he had a previous wife living, she being ignorant of the fact until until after their birth, an Indiana statute legitimizing the issue of bigamous marriages innocent on one side, and the status of the sons as to legitimacy being determined by the law of Indiana, their domicile, and recognized in Massachusetts, so that they were "lineal descendants" by reason of being the legitimate sons of their father. Case Reserved from Supreme Judicial Court, Bristol County. Petition in probate court by Edward H. R. Green and others against James A. Kelley and others. From the probate decree James A. Kelley and Charles B. Kelley appeal. On reservation for the consideration of the full court. Decree ordered modified. who died in 1823. Joseph H. A. Kelley was a lineal descendant of Gideon Howland. It is conceded that his Michigan son is one of the lineal descendants of Gideon Howland. The point to be decided is whether his Indiana sons also come rightly within that class. [1-3] It is clear that, if the form of marriage between Joseph H. A. Kelley and Rosalena Cunningham had occurred in Massachusetts, and they had lived here and their children had been born here, they would not be the legitimate children of their father and hence not lineal descendants of Gideon Howland. There is not statute of this common For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes wealth which goes far enough to permit that. | 151, § 14. This was enlarged by St. 1902, c. But it is indubitable that, under the law of 310, so that when a marriage was declared Indiana in force at the time of their birth void by reason of a prior marriage, of either and since, the sons of the void marriage of party, the issue of such marriage would be Joseph with Rosalena Cunningham are the the legitimate offspring of the party capable legitimate children of their father. That is of contracting the marriage when that parent the unmistakable import of the Indiana stat- alone believed that the former husband or ute. Binns v. Dazey, 147 Ind. 536, 539, 44 N. wife was dead or that the former marriage E. 644. That law fixes the status of the sons, was void or was dissolved by divorce. Manibecause their parents and the sons were dom-festly even this statute does not go so far toiciled in that state. The status of a person as to legitimacy depends upon the law of his domicile. It was said in Ross v. Ross, 129 Mass. 243, 246, 247, 37 Am. Rep. 321, in an exhaustive opinion by Chief Justice Gray, reviewing all previous decisions: "The status or condition of any person, with the inherent capacity of succession or inheritance, is to be ascertained by the law of the domicile which creates the status, at least when the status is one which may exist under the laws of the state in which it is called in question, and when there is nothing in those laws to prohibit giving full effect to the status and capacity acquired in the state of the domicile." See Houghton v. Dickinson, 196 Mass. 389 82 N. E. 481; Irving v. Ford, 183 Mass. 448, 67 N. E. 366, 65 L. R. A. 177, 97 Am. St. Rep. 447. ward removing the stigma of bastardy from But [7-9] The will of the testatrix gave the residue of her property, upon the termination of the life estate, to the "lineal descendants then living" of her grandfather. This will speaks from her death, which occurred in 1865. "Lineal descendants" means the legitimate immediate and remote progeny in direct line. These words of description in the will [4] Such status is recognized according to lay down the general rule for the ascertainthe principles of international law in other ment of the beneficiaries; but they do not countries and states unless contrary to the completely and accurately define how the positive law or to public policy of the sov- status is to be created which confers the ereign power where it is drawn in controver-capacity to share the benefaction. They do sy or so repugnant to good morals as to be im- not prescribe how lineal descendants shall be proper to recognize. Adams v. Adams, 154 determined. Therefore the testatrix doubtMass. 290, 293, 28 N. E. 260, 13 L. R. A. 275. less intended by those words that only those This rule prevails generally. who would be the lawful issue of her grand. Removal of the obstacles to the legitimation father according to the law of Massachusetts of innocent children, who have no responsi- should be participants in her bounty. bility for the circumstances of their birth, these words do not mean that those who are and thus ameliorating some of the apparent lineal descendants must be ascertained on harshness of the common law, has been the the footing that all claimants to be such were progressive policy of our law as illustrated born and had always lived in this commonby statutes and decisions. See Loring v. wealth as their domicile of origin and resiThorndike, 5 Allen, 257, and Monson v. Palm- dence, no matter where born and domiciled er, 8 Allen, 551, where some of the statutes in fact. If that had been the purpose of the are reviewed. testatrix, apt words to that end would have [5, 6] It is not contrary either to the stat- been used. The law of Massachusetts recute law or the public policy of this common-ognizes that legitimacy ordinarily is a status wealth that the children of a marriage, biga- dependent upon the law of the domicile of mous on the part of one parent but innocent the person in question. The lineal descendon the part of the other, should be declared ants of any resident of Massachusetts, aclegitimate to some extent and under some cir- cording to its law, are those who by the law cumstances. There is no express prohibition of the state of their domicile of origin and of such recognition in our statutes. There is residence are the legitimate issue of that perno intimation of the inhibition of such rec- son. The law of this commonwealth does not ognition in any of our decisions. It was require that the status of a citizen of a early provided by statute that in proceedings foreign jurisdiction as to legitimacy necesfor the dissolution of a marriage, void on ac- sarily or commonly must be settled according count of prior marriage of either party, if to the law of Massachusetts upon that subit appeared that the second marriage was ject as to its own citizens, rather than by contracted in good faith by both parties and the law of their own home. Ross v. Ross, 129 in the full belief that the former husband or Mass. 243, 267, 37 Am. Rep. 321. This is the wife was dead, the issue of the second mar- law of most other jurisdictions. In re Goodriage begotten before the commencement of man Trusts, 17 Ch. Div. 266; Andros v. Anthe suit should be deemed to be the legitimate dros, 24 Ch. Div. 637; In re Grey's Trusts issue of the parent capable of contracting [1892] 3 Ch. 88; Moore v. Saxton, 90 Conn. v. Rehaume, 51 Colo. 129, 136, 117 Pac. 159, 1 of the city of Boston, which dismissed the Ann. Cas. 1913A, 1243; Dayton v. Adkisson, report, and defendant appeals. Order dis45 N. J. Eq. 603, 17 Atl. 964, 4 L. R. A. 488, missing report affirmed. 14 Am. St. Rep. 763; Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669; Fowler v. Fowler, 131 N. C. 169, 42 S. E. 563, 59 L. R. A. 317. Since the sons of the Indiana marriage are the legitimate issue of their father according to the law of the state of their birth and domicile, they possess that status which must be recognized in this commonwealth. They are thus lineal descendants of Gideon How land by reason of being the legitimate sons of their father. As such they are entitled to share in the estate of the testatrix. The decree is to be modified so that in substance the distributive share to which Joseph H. A. Kelley would have been entitled, if living, is to be divided equally between Frank H. Kelley, James A. Kelley, and Charles B. Kelley. clusion of fact. both of Boston, for appellant. Thos. J. CasJames E. Kelley and Jacob K. Tertzag, ey and Anderson, Wiles & Ryder, all of Boston, for respondent. CARROLL, J. [1] This is an action of contract with the declaration in three counts. The judge found for the plaintiff; as there was evidence to support the finding we cannot review his conclusion of fact. Seager v. Drayton, 217 Mass. 571, 105 N. E. 461. [2] Under the third count, there was evidence that the money was paid at the defendant's request. The defendant now contends that the declaration for money paid for the use of and on the account of the defendant, is bad, because it contains no statement that the money was paid and expended at the defendant's request. Although the defendant filed several prayers for rulings, in none of them was the attention of the court called to this question. And no objections appear to have been taken to the form of this count. The point now argued is not open to the defendant; having failed to call the trial court's attention to the matter he must be deemed to have waived this defense. Harris v. North American Ins. Co., 190 Mass. 2. APPEAL AND ERROR 193(5)— RESERVA-361, 373, 77 N. E. 493, 4 L. R. A. (N. S.) TION OF GROUNDS OF REVIEW-FAILURE TO 1137. CALL ATTENTION TO DEFECT IN DECLARA- [3] There was evidence that the plaintiff TION-WAIVER. In an action for money paid for defendant's use, where defendant failed to call the trial court's attention to the absence of statement in the declaration that the money was paid and expended at defendant's request, the point is not open to defendant in the Supreme Judicial Court, as he must be deemed to have waived the defense. 3. APPEAL AND ERROR 169-RESERVATION OF GROUND OF REVIEW FAILURE TO ASK FOR RULING ON QUESTION. Defendant cannot rely upon a contention in the Supreme Judicial Court, where the question was not brought to the attention of the trial court, and no ruling was asked upon it. Appeal from Municipal Court of Boston, Appellate Division. gave his promissory note for $475 to the defendant, with the understanding that the defendant would repay him; that the defendant failed to carry out the agreement; and that the plaintiff paid the note to the endorsee. The writ is dated June 7, 1916. It is the contention of the defendant that the action was prematurely brought because no payment was made by the plaintiff until June 16, 1916. The record, however, shows that the final payment of $117.69 was made on June 13, 1916, and the other payments were made before that time, beginning as early as August, 1914. Even if there were merit in this contention the defendant cannot now rely upon it, as the question was not brought to the attention of the court, v. American Ins. Co., supra. Lyon v. Prouty, 154 Mass. 488, 28 N. E. 908. Action of contract, with declaration in three counts, the first for money loaned, the second for money had and received in the and no ruling was asked upon it. Harris same sum, and the third for a different sum for money paid for the use of and on and for defendant's account, by Dikram Serabian against Aram Tatian. There was a finding for plaintiff, and the case was reported to the appellate division of the municipal court We have examined all the defendant's exceptions and find no error of law in the conduct of the trial. Order dismissing report affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes * * The forwarding of salt purchased of plaintiff by defendant to Boston at plaintiff seller's expense, the taking of a bill of lading running to it as consignee, and the provision in the contract, "sells * at the following prices f. o. b. cars, Boston," indicated plaintiff seller's intent to reserve the jus disponendi until the railroad in Boston, on behalf of plaintiff seller, and in the exercise of authority conferred by indorsement on the bill of lading, should appropriate and deliver to defendant buyer, from the mass of a carload of salt, the particular quantity and kinds ordered by defendant. 2. SALES 153-TENDER OF PERFORMANCEREJECTION OF SHIPMENT BY BUYER. Under St. 1908, c. 237, § 44, subd. 2, providing that where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept those included in the contract and reject the rest, or may reject the whole, and subdivision 3, providing that where the seller delivers to the buyer the goods which he contracted to sell, mixed with goods of a different description not included in the contract, the buyer may accept the contract goods, rejecting the rest, or reject the whole, where a seller of salt in bags, shipped it by rail to the buyer in a car containing other salt for another customer, and the railroad notified the buyer of the arrival of the entire carload of salt, which did not correspond to what the buyer had ordered, the notice by the railroad was not a sufficient tender by plaintiff of performance of contract. Appeal from Municipal Court of Boston, Appellate Division. Action by the Rock Glen Salt Company against Jacob N. Segal. There was a finding for plaintiff, and defendant claimed report to the appellate division of the municipal court of the city of Boston, which ordered judgment for defendant, and plaintiff appeals. Judgment for defendant affirmed. Curtin, Poole & Allen and David Greer, all of Boston, for appellant. Samuel T. Lakson, of Boston, for respondent. PIERCE, J. "This is an action of contract to recover the purchase price of 300 burlaps 70-28 table salt at $1.05, 50 burlaps 50-3s table salt at $1.02 and 50 burlaps cotton 200s V. C. F. salt at $.74, amounting in all to $403, less freight, $80.44, net amount $322.56." A "memorandum of agreement" for the purchase and sale of “a supply of salt numbering five to ten cars" fixed the prices to be paid for different kinds of salt f. o. b. cars, Boston, Mass. The shipment in question was the last to be made under this contract and no question as to previous shipments is involved. The defendant had previously ordered and received at different times during the period covered by the contract and the time following its extension, nine carloads of salt, and each time paid freight on the goods that he had ordered and deducted the freight charges from his invoice when he paid such invoice. It was understood between the parties that the goods were to be invoiced "less freight” and that the defendant should pay the freight charges on his goods when they arrived and deduct same from bill when remitting. the Watkins Salt Co., Watkins, N. Y., the salt February 8, 1913, the plaintiff purchased of in bags ordered by the defendant. Two days later it purchased 15 barrels of salt ordered by another customer of the plaintiff. The salt in bags and barrels was placed in a car and shipped at plaintiff's request from Watkins, N. Y., to the Rock Glen Salt Co., Boston, Mass. The plaintiff took from the carrier a non-negotiable bill of lading. The salt was not consigned to the defendant, but on the contrary was consigned to the plaintiff itself, and was described in the bill of lading as "15 Bbls. 400 Sax. Weight 64600#." "Destination, Boston, State of Mass." "Route B. & M. Car initial Erie. Car No. 111529." This bill of lading was indorsed "Deliver to order of Segal Bros. Rock Glen Salt Co. F. W. Relyea, Tres." It was then sent to and received by the Boston & Maine Railroad at Boston, Mass., but it was never delivered to or accepted by the defendant. The car containing the bags and barrels of salt arrived in Boston at the Boston & Maine freight house on February 18, 1913. On February 19, 1913, the Boston & Maine Railroad notified the defendant in writing of the arriv al of freight consigned to the Rock Glen Salt Co. and stated that it was ready for delivery. The notice gave the "Car Initial and Nos." as "E 111529" and the "Original Point of Shipment" as "Watkins, N. Y., via ER." It described the "Articles and Marks-Weight -Rate-Freight-Advances" "15 Bbl. 400 sx. Salt-64600-90.44 Total, 90.44." Neither the bill of lading nor the notice stated the different kinds of salt that made up the 400 bags nor the quantity of each kind. Nor did the defendant know that the 15 barrels of salt had been put into the car with the 400 bags to fill an order of another customer of the plaintiff. as When the defendant received the notice he had already received an invoice for salt as ordered, which showed a shipment over the Boston & Maine Railroad in "Car No. 111529 Erie," the amount of said invoice being $403 "less freight" $80.44, or $322.56. He compared the notice with the memorandum of his order, found that the salt stated in the notice did not correspond to the order given by him to the plaintiff, noticed that the freight charges were excessive for the quantity of salt ordered by him, and that they covered the whole quantity of sale contained in the car. He thereupon returned the notice to the "railroad's messenger." Without contradiction, so far as the record discloses, he testified "that there was no way in which the What there anything about the bags or barrels to indicate the quality of their contents. the railroad did was to tender the contents of a car-a quantity of goods larger than the defendant agreed to purchase and on which the defendant would have been obliged to advance freight charges in excess of the amount be agreed to advance. freight charges could have been apportioned ant's order. Nor, so far as appears, was or separated and if [he] the defendant had accepted any part of this car of salt he would have been obliged to pay the full amount of the freight charges on said car." He also testified that "he had a charge account with this railroad or freight due the railroad on shipments, and that actual payment by him to the railroad at the time of receiving possession of shipments was not necessary to receive such possession." February 26, 1913, the car of salt was damaged by fire at the Boston & Maine freight house and the defendant refused to receive the salt. The presiding judge ruled "that the title had passed to the defendant before February 26th, and that the salt was then at his risk," and found for the plaintiff. Upon report, the appellate division for civil business of the municipal court of the city of Boston, ordered "judgment for defendant," and the case is before this court on appeal from that decision. [1, 2] We think the forwarding of the salt to Boston at the seller's expense, the taking of a bill of lading running to itself as consignee, and the provision in the contract "sells * * * at the following prices f. o. b. cars, Boston," indicate an intent of the seller to reserve to itself the jus disponendi of the salt until the railroad company in Boston on behalf of the plaintiff, and in the exercise of the authority conferred by the indorsement upon the bill of lading, should appropriate and deliver to the defendant from the mass the quantities and kinds or dered by the defendant. First Nat. Bank of Cairo v. Crocker, 111 Mass. 163, 167; Sawyer Medicine Co. v. Johnson, 178 Mass. 374, 59 N. E. 1022; St. 1908, c. 237, § 19, rule 5. The question is, was the notice of the Boston & Maine Railroad Company an appropriation and proper tender on behalf of the plaintiff of the salt to the defendant in performance of the contract. In this regard it is to be noticed that the railroad company was not instructed by the bill of lading or otherwise of the kind or quantity of salt required to fill the defend St. 1908, c. 237, § 44, reads: "(2) Where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer may accept the goods included in the contract and reject the rest, or he may reject the whole." "(3) Where the seller delivers to the buyer the goods which he contracted to sell mixed with the contract, the buyer may accept the goods goods of a different description not included in which are in accordance with the contract and reject the rest, or he may reject the whole." These sections express the effect of Rommel v. Wingate, 103 Mass. 327; Levy v. Green, 1 E. & E. 969; Rylands v. Kreitman (1865) 19 C. B. 351; Perry v. Mount Hope Iron Co., 16 R. I. 318, 15 Atl. 87. In the case at bar the defendant, upon receiving the notice and invoice, could have assumed properly that the 15 barrels of salt had been sent by the seller to be delivered by the railroad to him; the bill of lading in terms directed the railroad to do so. Upon this assumption, if he did not intend to pay for the whole car, he must have determined whether to take a part and reject a part, or reject the whole. If he desired to have the part only which he had ordered, it remained to determine whether he would become responsible for the entire freight charges and look to the purchaser of the 15 barrels or to the seller for his repayment. If it were a fact that the defendant could have paid the proportionate charges, that fact does not appear in the report and cannot be assumed. We are of opinion that the severance of the 400 bags from the 15 barrels involved pecuniary "trouble or risk" to the defendant. Levy v. Green, supra. It follows that the title never passed to the defendant. Judgment for defendant affirmed. |