Description in a deed given by a deputy sheriff at such an execution sale was
held to be constructive notice to the purchaser at the sale that the tract of
land was a cemetery for the burial of the dead and was subject to all the rights
incidental to such property. Trefry v. Younger, 5.
An acknowledgment of satisfaction contained in a receipt and an indorse-
ment of satisfaction upon executions was held to be an equivocal act and
open to explanation by evidence as to the amount actually received. Lait
v. Sears, 119.
In the same case it was said that the filing of the executions in court was not
"properly a return, but a receipt," citing Brown v. South Boston Savings
Bank, 148 Mass. 300, 306, where the phrase quoted is used. Ibid.
EXECUTOR AND ADMINISTRATOR.
Assuming that a total lack of assets on the part of an intestate will make void
the appointment of an administrator of his estate, where this point is directly
in issue and the fact is proved, yet under R. L. c. 162, § 2, a decree of the
Probate Court appointing an administrator cannot be attacked collaterally
on such a ground. Taylor v. Badger, 258.
The executors of a will, who also are named as the trustees thereunder and have
been appointed such trustees, continue to hold as executors the property of
the testator in their hands until their accounts in the Probate Court whereby
they are credited as executors with the amount of property turned over to
themselves as trustees have been allowed by that court. Hines v. Levers &
Sargent Co. 214.
In the absence of authority given by the will of his testator or obtained under
St. 1910, c. 411, the executor of a will has no right to continue as such ex-
ecutor a retail shoe business conducted by his testator, and, if he does so, he
is bound to account personally to the administrator de bonis non with the
will annexed of the estate of the testator for any losses incurred in carrying
on the business. Ibid.
Where the executor of a will, who without authority continued as such ex-
ecutor a shoe business in which his testator had been engaged, bought
shoes from a corporation engaged in the manufacture of shoes, under such
circumstances that the officers entrusted with the transaction of its business
must or ought to have known that the payment for the shoes thus purchased
was made from the general funds of the estate of the testator, the adminis-
trator de bonis non with the will annexed of the estate of the testator in a
suit in equity against the corporation may recover the amount of money
thus received by the defendant from the estate of the testator. Ibid.
Evidence in such a suit upon which it was held that a finding was warranted
that the defendant knew that the executor was carrying on the business of
his testator, and conclusively must be presumed to have known the law that
the executor, unless previously authorized to subject the estate to such
hazards of trade, would alone be responsible for the payment of the indebted-
ness incurred. Ibid.
Executor and Administrator (continued).
A special administrator of an estate is a person aggrieved by a decree of the
Probate Court ordering the payment from the funds of the estate of an ad-
vancement under R. L. c. 137, § 12, and is entitled to appeal from such a
decree. Sturtevant v. Wentworth, 459.
Executors, who also are named as trustees under a will, remain executors and
chargeable with funds until their accounts showing payments of the funds
to themselves as trustees are allowed by the Probate Court. Hines v. Levers
& Sargent Co. 214.
Under R. L. c. 150, § 14, the Probate Court is the proper tribunal to determine
the allowance for the expenses incurred and the disbursements made by an
administrator de bonis non with the will annexed. Loring v. Wise, 231.
Interest received by an administrator de bonis non with the will annexed upon
a deposit by him in a trust company of money of the estate of his testator
must be accounted for by him as earnings of a fund belonging to the estate.
Ibid.
Expenses incurred by an administrator de bonis non with the will annexed for
stenographers' charges for services at hearings before an auditor appointed
by the Probate Court, it was held under the circumstances, could not be
said largely to be the result of wrongful conduct on the part of the adminis-
trator or to be unreasonable, and they properly were allowed within the
discretion of the Probate Court. Ibid.
In the same case it was held that the administrator properly might be allowed
a charge for $2,500 paid as reasonable compensation for the services of
counsel employed by the administrator to act for him at the hearings before
the auditor on the charges of fraud which were found to be groundless.
Ibid.
In the same case it was held that under the circumstances the administrator,
who was a member of the bar, properly might be allowed the sum of $650
for the services of himself and his associate in preparing for and attending
the hearings before the auditor and for expenses incurred for copies made
by a stenographer and required at these hearings. Ibid.
The provisions of R. L. c. 142, § 1, as amended by St. 1909, c. 297, prescribing
the order in which debts of an insolvent estate of a deceased person shall be
paid "after discharging the necessary expenses of his funeral and last sick-
ness and the charges of administration,” do not place upon the executor of
the will of a wife the duty of repaying to her husband amounts paid by him
before her death for expenses incurred in connection with her last sickness.
Hayes v. Gill, 388.
An executor named in a will which provides a method for fixing the com-
pensation of the executor, if he accepts an appointment as such executor,
has no right to claim a compensation which is fixed in any other manner
than that provided by the will. Bailey v. Crosby, 492.
Executor and Administrator (continued).
An executor and trustee named in a will providing that his compensation as
executor and trustee should be such as a majority of the heirs of the testator
should award him for his "services in the care of [the testator's] estate,"
cannot object to an amount awarded him as compensation by a majority
of the heirs in a fair and reasonable exercise of the power given them by
the will nor recover a larger amount under R. L. c. 150, § 14. Bailey v.
Crosby, 492.
Under R. L. c. 150, § 14, the right of an executor or trustee to compensation
is not an absolute one and the statute was not intended to restrain testators
from fixing the compensation of the executors of or trustees under their
wills. Ibid.
In the case stated above it was found that the discretion reposed by the tes-
tator in his heirs was not exercised unreasonably nor unfairly, and it was
said that there was no occasion to consider the effect, if any, which bad
faith on the part of the majority of the heirs would have had upon the right
of the executor and trustee to have the amount of his compensation deter-
mined by the Probate Court. Ibid.
The provision as to the time when an action can be brought by a creditor
against an executor or administrator contained in R. L. c. 141, § 1, (now
amended by St. 1914, c. 699, § 1,) applies to a suit in equity against an
executor such as is described in R. L. c. 148, § 1, to enforce the specific
performance of an agreement made by the defendant's testator where the
payment of money out of the testator's estate is sought. Richardson v.
Lane, 224.
Insurance against loss by fire, see appropriate subtitle under INSURANCE.
Suit in equity to reach and apply to the payment of a debt property fraudu-
lently conveyed and transferred by the debtor. Gurney v. Tenney, 277.
Suit in equity to establish a resulting trust in property which came into
possession of a man through false representations by him to a woman that
he was unmarried. Morin v. Kirkland, 345.
Motion made by the plaintiff in an action of tort to strike from the files of
the court an agreement for judgment and judgment satisfied on the ground
that it was obtained upon a settlement procured by fraud of the defendant.
Scott v. Bevilacqua, 554.
Suits in equity for rescission of a contract on ground of fraud, see appropriate
subtitle under EQUITY JURISDICTION.
Suits in equity to relieve from results of fraud, see appropriate subtitle under
EQUITY JURISDICTION.
See also DECEIT; UNDUE INFLUENCE.
By reason of the provision of the statute of frauds contained in R. L. c. 74,
§ 1, cl. 4, no action can be maintained for the breach of an oral agreement
to lay out and construct a street on the promisor's land adjoining land
which he had conveyed to the promisee, where no right of way was con-
veyed by or referred to in the deed of the adjoining land or shown on any
plan referred to in that deed. Estabrook v. Wilcox, 156.
The fact that a contract in writing accompanying a sale of a used motor car
and containing a warranty, which was accepted by the buyer, was not signed
by him, was held to be immaterial in an action brought by him to enforce
the alleged oral warranty, where no question could arise under the statute
of frauds. Glackin v. Bennett, 316.
A memorandum, "We confirm sale to you of following cars of Green Moun-
tains, delivered in Boston at 90c per bu. viz: 4 cars H. H. & A. Roach,
Smyrna Mills," was held to have satisfied the requirements of the part of
the statute of frauds contained in § 4, cl. 1 of the sales act, St. 1908, c. 237.
Roach v. Lane, 598.
See appropriate subtitle under EQUITY JURISDICTION.
In an action under R. L. c. 99, § 2, against the tenant and occupant of a hotel
to recover money alleged to have been lost at gaming in the building with
the defendant's knowledge and consent, where there is evidence that the
plaintiff entered a room in the defendant's hotel and there bet on a horse
race and lost his bet, which was won by other persons present to whom he
paid the money, it can be found that the plaintiff lost his money in one of
the forms of gaming described in § 1 of the same chapter. Kemp v. Ham-
mond Hotels, 409.
In the same case there was evidence that the plaintiff paid upon his bets $360
in cash and signed a check or note for $5,000, which was unenforceable but
which he redeemed by a cash payment before leaving the building after
the race had been finished and the money had been won, and it was held
that the money with which the check or note was redeemed could be found
to have been lost in gaming as much as could the money paid in cash before
the wager was determined and therefore that the whole amount could be
recovered from the defendant. Ibid.
In the same case it was held that the provision of the statute, making the
owner, tenant or occupant of a building liable for money lost at gaming
therein "with the knowledge or consent of said owner, occupant, or tenant,"
did not require the plaintiff to prove that the defendant knew of the gaming
by personal observation, and that such knowledge could be found on evi-
dence of notice to the defendant of such circumstances as ordinarily upon
investigation would lead him in the exercise of reasonable diligence to a
knowledge that gaming was being carried on there. Ibid.
In the same case, in which the defendant was a corporation, it was held that it
properly was left to the jury to determine whether the defendant's general
manager, by reason of his relation to the business and his control over it,
was chargeable with notice of the unlawful use that was being made of the
room in which the plaintiff lost his money. Kemp v. Hammond Hotels, 409.
See also WAGERING CONTRACTS.
A universal custom among proprietors of garages and owners of motor cars
employing chauffeurs, to allow a chauffeur, who brings a car into a garage
to be kept for the owner, to take the car out again without an express order
from the owner who has given no instructions to the contrary, may be found
not to be applicable where the owner delivers the car at the garage to be
retained for an appreciable length of time for the sole purpose of ascertain-
ing the extent and cost of repairs desired by the owner. Doyle v. Peerless
Motor Car Co. of New England, 561.
If the owner of a motor car leaves it at a garage for repairs, the proprietor
of the garage engages, whether the repairs are or are not made, to return
it to the owner or to deliver it to some third person with the owner's express
or implied consent. Ibid.
Notice by the owner of a motor car to the proprietor of a garage, which was
held to be equivalent to a notice not to deliver the car to the chauffeur or
to any person until a special purpose for which it had been left at the garage
had been accomplished or until the plaintiff specifically had ordered the
redelivery. Ibid.
Action of tort for conversion based upon the fact that the proprietor of a
garage delivered a motor car left with him for repairs to the owner's chauf-
feur while the owner was in Maine, the chauffeur not then being authorized
by the owner to receive it. Ibid.
The bare relationship of father and daughter (especially where the daughter
is married and is not a member of her father's family) does not constitute
the daughter an agent of the father authorized to receive the father's
motor car from a garage where he had placed it for repairs. Ibid.
The proprietor of a garage, with whom the owner of a motor car has left it for
repairs, the exact nature of which have not been determined, has a special
property in the motor car as a bailee and may maintain an action of tort for
conversion against one who by fraud induces such garage proprietor to re-
linquish possession of it. Beacon Motor Car Co. v. Shadman, 570.
Circumstances, under which a woman advanced in years, who was seriously
ill and was under apprehension of speedy death from a disease of uncertain
duration from which she was suffering and which resulted in her death four
months later, gave to a son a pass book in a savings bank, were held to make
out a prima facie case of a good gift causa mortis. Stevens v. Provident In-
stitution for Savings, 138.
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