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except await its unloading, excluding a question

(225 Mass. 213) on redirect examination regarding what other WHITMAN V. WHITNEY et al. duties he had there, was not erroneous, where no offer of proof showing the expected answer (Supreme Judicial Court of Massachusetts. was made.

Middlesex Nov, 29, 1916.) [Ed. Note. For other cases, see Trial, Cent. WILLS Om487(4)—INTENTION OF TESTATRIX Dig. 8 113; Dec. Dig. 45(3).]

EVIDENCE.

Where testatrix mistakenly believed that Exceptions from Superior Court, Suffolk she had only a life estate in a trust fund, and County; John F. Brown, Judge.

her belief was attributable solely to the fact Action by Cornelius J. Guiney against that she yoluntarily omitted to make inquiries the Union Ice Company. Judgment for de make her dispositions without definite knowl

or an estimate of her property, and chose to fendant, and plaintiff brings exceptions. Ex edge of its amount or value, evidence is not ceptions overruled.

admissible to prove that by her will testatrix

did not intend to dispose of her interest in the Harry F. R. Dolan, Jas. H. Morson, and trust fund. Jos. S. O'Neill, all of Boston, for plaintiff, (Ed. Note.-For other cases, see Wills, Cent. Sawyer, Hardy, Stone & Morrison, of Bos. Dig. § 1028; Dec. Dig. 487(4).] ton (E. C. Stone, of Boston, of counsel),

Appeal from Supreme Judicial Court, for defendant,

Middlesex County.

Petition for probate of will by Edmund BRALEY, J. [1, 2] If the plaintiff had not A. Whitman, executor of the last will and been in the car from which the ice was being testament of Abigail W. Howe. There was taken and placed on his wagon he would not a decree of the probate court allowing the have been injured by the glancing and unin will, and William L. Whitney and others tentional blow of an ice pick in the hands of appealed. From a decree of a single Justice a workman of the defendant engaged in of the Supreme Judicial Court allowing the transferring the ice. It is apparent from the executor's motion to dismiss their appeal, plaintiff's uncontradicted testimony that he william L. Whitney and others appeal. Dewas not required to assist in loading the ice,

cree affirmed. and until it was loaded he "had nothing in particular to do in the car." If nothing

Hartley F. Atwood and Elias Field, both more appeared he must be held while in the of Boston, for appellants. Elder, Whitman car to have been at most a mere licensee to & Barnum, of Boston, for appellee. whom the defendant owed no duty except to refrain from the infiction of wilful in

PIERCE, J. This is an appeal from a jury, of which there is no evidence. Freeman decree of a single justice of this court, allowv. United Fruit Co., 223 Mass. 300, 302, 111 ing a motion to dismiss an appeal from a N. E. 789. But to meet this initial difficulty, decree of the probate court allowing certain and after the plaintiff in cross-examination instruments as the last will and codicils of had reiterated that he had “nothing to do Abigail W. Howe. there except to wait for the ice," he was

The grounds upon which the motion is askasked in redirect examination, "Was there ed is, that the appellants set forth no reasons any reason other than you testified to?" why the appeal should be allowed in law. When there followed a colloquy between coun. The appellants, who are the only heirs and sel for plaintiff and the presiding judge dur- next of kin of the testatrix, within the time ing which the judge said, “His duty did not allowed by law iled their appeal from the alcall him in there," and the witness interpos- lowance of the will, alleging as their sole ing said, “Not at that time.” While the wit- ground of objection: ness was immediately told by his counsel terest in the principal of a trust fund under

"Because the testatrix died owning an in"Don't you answer,” it is clear from all of his the will of Susannah Whitney, late of Camevidence, including this statement, that unless bridge in said county of Middlesex, deceased, of some sufficient reason not previously disclosed great value; that she believed she had no in

terest in said trust fund other than a life was given for his presence in the car his interest; that she did not intend to dispose of rights had not been enlarged, and he could said interest in the principal of said fund by not recover. The question having been final- ber will or codicils; and that the said will and ly excluded the plaintiff contends there was codicils were void and of no effect, so far as

they disposed of said interest, and so much error and a new trial should be granted. thereof as disposed of said interest should not But no offer of proof, or any statement show- be admitted to probate.” ing the answer expected was made. Nor can The fact that the testatrix had the legal we infer from the record what the answer power to dispose of the principal of the might have been. Under such circumstances trust fund, distinguishes the case at bar from it cannot be held as matter of law that the Deane v. Littlefield, 1 Pick. 239, Holman v. ruling was wrong. Bachant v. B. & M. R. R., Perry, 4 Metc. 492, Heath v. Withington, 6 187 Mass. 392, 396, 73 N. E. 642, 105 Am. St. Cush. 497, Old Colony Trust Co. v. Bailey, Rep. 408; Coolidge v. Boston Elev. Ky., 214 202 Mass. 283, 88 N. E. 898, which are cases Mass. 568, 571, 102 N. E. 74.

where there was either a partial legal disaExceptions overruled.

bility on the part of the testator or where

there had been fraud or undue influence as by procuring insurance, and the lessee would be to a specific clause in the will. In these class- liable to him for the premium. es of cases, wills have been proved to take [Ed. Note.--For other cases, see Landlord and effect in part and to be void in part. Sumner Tenant, Cent. Dig. 88 567-570; Dec. Dig. Can

156.] 1. Crane, 155 Mass. 483, 484, 29 N. E. 1151, 15 L. R. A. 447; Old Colony Trust Co. v. 5. LANDLORD AND TENANT 156 – CoveBailey, supra.

NANTS-INSURANCE-BREACH-DAMAGES.

On breach of such covenant damages to be The appellants do not claim that the ig-assessed were not necessarily nominal. norance of the testatrix of her legal right [Ed. Note.-For other cases, see Landlord and to dispose of the principal fund, that her be- Tenant, Cent. Dig. 88 567-570; Dec. Dig. Om lief that she had no interest therein other 156.] than a life estate, or that her intent not to

Appeal from Municipal Court of Boston, dispose of her interest was the result of

Appellate Division. fraud, of any delusion or incapacity to un

Action by Moses Richmond against Harry derstand the nature, quantity or value of her s. Kelsey. From an order of the appellate interest; but assert that the mere belief of division dismissing the report, defendant apthe testatrix that she had only a life estate peals to the Supreme Judicial Court. Afin the trust fund requires the decree of the irmed. probate court should exclude the trust property from the operation of the will. So far

Chas. N. Barney, of Lynn, Hubert A. Muras may be inferred from the record, the ig- phy, of Boston, and Robt. T. Woodruff, of norance and belief of the testatrix were Lynn, for appellant. Francis P. Garland, of attributable to no other fact or condition than Boston, for appellee. that she voluntarily omitted to make inquiries or an estimate of her property, and chose

PIERCE, J. This is an action by an asto make her dispositions without definite or signee of a lessor against the lessee upon a certain knowledge of its amount or value.

covenant contained in an indenture of lease, It is clear upon the authority of Barker which, so far as is material to the issue now v. Comins, 110 Mass. 477, that upon the facts presented, reads: stated, evidence would not be admissible to and promises with and to the said lessor that

"And the said lessee hereby covenants prove that the testatrix did not intend to he will during said term, and for such further dispose of her interest in the trust fund. time as the said lessee or any other person or Decree affirmed.

persons claiming under him, shall hold the said premises or any part thereof, pay unto the lessor the said yearly rent upon the days hereinbefore

appointed for the payment thereof, and also all (225 Mass. 209)

the taxes, insurance, and assessments whatRICHMOND v. KELSEY. (Supreme Judicial Court of Massachusetts.

Following the plaintiff's demand and the Suffolk. Nov, 29, 1916.)

defendant's refusal to insure for the benefit 1. INSURANCE Cw115(4) – INTEREST – LAND- of the plaintiff, the plaintiff placed on the LORD AND TENANT.

Where the lease required the lessee to sur- property insurance, to the extent of $30,000 render the premises peaceably on termination of upon new buildings and $10,000 on old buildthe term, and provided that the lessor might on ings, payable to himself. It is not argued, default 'of rent retake possession, the lessor and apparently is not claimed, that the inhad, as reversioner, an insurable interest in the premises and any erections or additions thereto. surance is excessive or based upon an exag

[Ed. Note.- For other cases, see Insurance, gerated and fictitious valuation of the propCent. Dig. § 147; Dec. Dig. Om115(4).]

erty. In effecting the insurance the plain2. LANDLORD AND TENANT 156 COVE- tiff paid as a premium to the insurance comNANTS-INSURANCE.

pany $137.50, and seeks to recover that sum Where the lease obligated the lessee to provide insurance, and further required peaceable as damage for breach of the covenant, in surrender, and provided for re-entry on default the first count of his substitute declaration, of rent, the insurance provided must be rea- or, in the alternative, a like sum with insonably adequate to protect the reversion; the terest after demand in the second count upon landlord's interest not being merely nominal,

a common count for debt. The answer of (Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 567-570; Dec. Dig. Om

the defendant is a general denial and pay156.)

ment. 3. LANDLORD AND TENANT @mw 156 COVE At the hearing of the case before argument NANTS-INSURANCE-PERFORMANCE.

the defendant asked the court to make the Such condition is not performed by the plac following rulings: ing of insurance, however adequate, solely in the lessee's name.

"1. On all the evidence the plaintiff is not

entitled to recover. (Ed. Note.-For other cases, see Landlord and

"2. The lease does not require the lessee to Tenant, Cent. Dig. $8 567-570; Dec. Dig.

effect insurance for the benefit of the lessor. 156.]

“3. The lease does not require the lessee to 4. LANDLORD AND TENANT 156 Cove- repay the lessor premiums for insurance effected NANTS-INSURANCE-PERFORMANCE.

by the lessor for his own benefit. Under such lease, on lessee's refusal to pro "4. The lease does not require the lessee to recure insurance, the lessor could protect his risk pay the lessor premiums paid for insurance, ef

soever.

For other cases see same topic and KEY-NUMBER in all Key-Nurnbered Digests and Indexes

fected by the lessor for his own benefit, beyond | interest, and refute and disprove the defenda nominal amount.

ant's claim that the insurable interest of the [1] The lessor, as reversioner, had an in-owner of the buildings is only nominal. This surable interest in the property as it was covenant, like that for the payment of taxes when leased, and also in any erections or ad- and betterments, was inserted for the bene ditions thereto, by virtue of the covenant of it and indemnity of the lessor. Adams v. the lease which reads:

North American Ins. Co., 210 Mass. 550, 552, "And further, that the said lessee, shall 96 N. E. 1094. And it is not met and perand will, at the expiration of said term, peace-formed by the placing of insurance, however ably yield up unto the said lessor all and singular the premises and all the erections and addi- adequate, solely in the name of the lessee. tions made to or upon the same, in good tenant. We do not find it necessary to decide whether able repair in all respects, reasonable wearing the covenant would have been executed and and use thereof, and damage by fire and other fulfilled had the policy been made payable casualties excepted."

to the lessor and lessee according to their As also by the condition which reads:

respective interests in the property. See "Provided also that these presents are upon the condition that if the said lessor does or shall Sherwood v. Harral, 39 Conn. 333. fail to pay the rent and taxes which on his [4, 5] Upon the refusal of the lessee on depart are to be paid under the terms of this mand to perform the covenant, the lessor lease or within ninety days after the same shall become due and payable, then and in either of could properly protect his risk and the covethe said cases, the lessor lawfully may immedi- nantor would become obligated to reimburse ately or at any time thereafter, and while such, the lessor for the amount of the premium neglect or default continues, enter into and up-. which the lessor had to pay to effect the inon the said premises or any part thereof in the name of the whole and repossess the same as of surance. Dodd v. Jones, 137 Mass. 322; 2 their former estate." Columbia Ins. Co. v. Tiffany, Landlord and Tenant, S63, and casCooper, 50 Pa. 331.

es cited. There was a breach of the cove[2, 3] From these covenants and conditions nant, under the first count and the damit appears that the lessor has a valuable ages to be assessed were not necessarily nomproperty interest to protect. And while it inal. Hey v. Wyche, 12 L. J. Q. B. 83. is true that there is no provision for abate The defendant does not contend that the ment of rent in case of the destruction of the plaintiff, as assignee of the lessor, cannot buildings or for termination of the lease in maintain an action on the covenant because such an event, it is also a fact that the lessor there was no agreement by or liability on has a right to determine the lease on the the lessor to rebuild or repair in case of fire; nonpayment of rent or taxes and to repossess it therefore is unnecessary to decide whethhimself of his former estate. These consider the covenant is a personal one of inerations make certain and establish the plain. demnity or runs with the land. tiff's contention that the covenant to pay the It follows that the requested rulings were insurance is an agreement to effect such in- refused rightly, and that the order dismissing surance as shall be reasonably adequate to the report should be affirmed. cover and to protect the lessor's reversionary So ordered.

claim sued upon in this action; that on HARTER v. BOARD OF COM'RS OF day of April, 1915, at a regular meeting of

BOONE COUNTY. (No. 9511.). * said board of commissioners, said claim was (Appellate Court of Indiana, Division No. 1. wholly disallowed. Whereupon he demands Nov. 28, 1916.)

judgment for $543. The second paragraph is COURTS em 220(4)–JURISDICTION OF APPEL based on a claim of $83.50 for mileage alleged LATE COURT-TRANSFEB TO SUPREME COURT. to be due bim for summoning grand and

The court of appeals, being of the opinion petit Juries. The demurrer was, for insuffithat the decision in Roberts v. Board, etc., 54 Ind. App. 316, 99 N. E. 1015, determining that ciency of the facts, alleged to state a cause of under

Burns' Ann. St. 1914, $ 7335, amounts al- action. The memoranda accompanying the lowed for mileage to sheriffs are not fees, but al. demurrer states, in substance, that the comlowances for necessary expenses, is erroneous plaint seeks to recover mileage fees, which, and that a judgment following such decision should be reversed, not having power to do so, under the statute, are designated as "sheriff's will transfer the case to the Supreme Court; costs," and belong to the county; that the with the recommendations under section 1394 appellate court has so decided in the case of as above stated.

[Ed. Note --For other cases, see Courts, Cent. Roberts v. Board, etc, 54 Ind. App. 316, 99 N. Dig. $ 1292; Dec. Dig. Om 220(4).]

E. 1015.

The assignment presents the question Appeal from Circuit Court, Boone County; whether allowances for mileage of a sheriff Willett H. Parr, Judge.

authorized by the statute in connection with Action by Samuel W. Harter against the services performed by him as such oficer Board of Commissioners of Boone County. belong to the county as pay for official duty From Judgment adverse to plaintiff, on his performed or whether, when collected, such refusal to plead further after demurrer to allowances may be retained by the officer the complaint was sustained, he appeals. as reimbursement for necessary expenses of Case transferred to Supreme Court.

travel expended by him while performing the L, Ert. Slack, Willis C. Nusbaum, and duties of his office. The question has been Miller & Dowling, all of Indianapolis, for before this court, and the conclusion reached appellant. Roy Adney, of Lebanon, for ap- that the amounts allowed for such mileage pellee.

are not in fact, “sheriff's costs," or "fees

provided by law on account of services perFELT, C. J. This was an action brought formed by such officers," as designated in by appellant, a former sheriff of Boone coun. section 7335, Burns 1914, which belong to the ty, Ind., against the board of commissioners county, but instead are allowances made to of said county, to recover money collected by such officer to reimburse him for the necessary him as statutory mileage while serving as expenses of travel paid by him while persheriff of that county. The complaint was in forming the duties of his office, and theretwo paragraphs to each of which a demurrer fore belong to him personally. While such was filed and sustained. Appellant refused was the conclusion of this court, the decito plead further, and judgment was there sion was to the contrary on the theory that upon duly rendered against him, from which the question had been settled by the Supreme he appealed.

Court contrary to such conclusion. Roberts The error assigned and relied on for re- v. Board of Commissioners, 54 Ind. App. 316versal is the sustaining of appellee's demur- 324, 99 N. E. 1015. rer to each paragraph of the complaint.

In the case of Roberts v. Board, etc., supra, The gist of the first paragraph of the com- Lairy, J., very clearly sets forth the views of plaint is that appellant was duly elected and this court, and cites authorities in support served as sheriff of Boone county, Ind., for of the conclusion that mileage allowances, two years from January 1, 1911; that in his as such, are reimbursements for expenses quarterly report of fees, as such sheriff, of travel and are not fees or allowances through inadvertence and mistake, he paid which, under our statute, belong to the coun. into the treasury of the county the sums of ty. We here adopt the views there expressmoney wbich had been charged and collected ed, and cite the following additional authorby him as such sheriff as statutory mileage ities as throwing some light on the question in connection with the service of writs, sum- involved. Campbell v. U. S., 65 Fed. 777, 13 monses, subpænas, venires, and notices, orig. C. C. A. 128; Wheeler v. Clinton Co., 92 inating within Boone county, and served by Iowa, 44, 60 N. W. 207; Irvin v. County, etc., him therein as such sheriff ; that the money 63 Ill. 528; Crossen v. Earhart, 8 Or. 37080 paid over by him was his own individual 373; Warner v. Fremont Co., 4 Idaho, 591, property, under and by virtue of the stat- 43 Pac. 327; Richardson v. State ex rel., 66 utes of the state of Indiana, an itemized Ohio St. 108, 63 N. E. 593, 594; Kirkwood account of which was made a part of the v. Soto, 87 Cal. 394, 25 Pac. 488; Drexel v. complaint as an exhibit; that on March 23, Douglas Co., 62 Neb. 862, 87 N. W. 1053 ; 1915, he filled with the auditor of Boone Starr v. Board, etc., 40 Ind. App. 7-12, 76 N. county his duly itemized and verified claim E. 1025, 79 N. E. 390. The decision in the against appellee, which was the identical | Roberts Case, supra, was based entirely

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 114 N.E.-21 *Transferred to Supreme Court, 116 N. E. 304.

TLE."

upon the opinion in Smith v. State ex rel., , who were given contingent remainders with the 169 Ind. 260, 82 N. E. 450. We have examined double aspect, where there was no debatable the record and briefs in the Smith Case, and question as to the construction of the will. find that the question of allowances for mile- Dig. § 1667; Dec. Dig. Om695(2).)

[Ed. Note. For other cases, see Wills, Cent. age was not involved. In that case the al- 2. QUIETING TITLE Ob_GROUNDS FOR RElegation considered states that the sherifi

LIEF-CONTINGENT REMAINDER. "procured allowances from the board of com A bill to quiet title does not lie, where there missioners in the sum of $153.60 and drew the is no one asserting a right adverse to complainsame from the treasury of said county for fees ants, though statements had been made by perfor posting election notices; that he drew all sons claiming no title that there were outstandthe same and all said sums in addition to ing contingent remainders, since courts do not his salary," etc.

generally entertain suits to declare the rights of In the itemized bill of particulars filed with parties on a state of facts which has not arisen the complaint the several amounts, which and may never arise. together aggregated $153.60, were designated, tle, Cent. Dig. $ 4; Dec. Digem 6.]

(Ed. Note.--For other cases, see Quieting Ti“For election notices," and, "For posting election notices." The allegations very clear

3. QUIETING TITLE 7(2) — "CLOUD ON TIly showed the amounts there in controversy A “cloud on title" is a claim which is apparto be “fees, provided by law on account of ently valid, but which may be removed by exservices performed” by the sheriff, which be trinsic evidence; so that a bill to remove a cloud

does not lie where the only defect in the title longs to the county. The question which was appears on the face of the will under which comin fact in issue and actually decided by the plainant claims. court, therefore, was different from that in [Ed. Note.-For other cases, see Quieting Ti. volved in the opinion of this court written tle, Cent. Dig. 88 15, 18, 19, 21-23, 25; Dec. by Judge Lairy, and from the question in the Dig. 7(2). case at bar. We therefore conclude that the First and Second Series, Cloud on Title.]

For other definitions, see Words and Phrases, decision in the case of Smith v. State ex rel.,

4. WILLS O 705 – VOID DECREE — CONSTRUCsupra, was not decisive of the question pre

TION OF WILL sented in the case of Roberts v. Board, etc., A decree in equity construing a will is not supra, and that this court should not have void, although the jurisdiction was erroneously held that it was, notwithstanding the opin- exercised, since equity always had power to con

strue wills. ion contains language which, on its face,

(Ed. Note.-For other cases, see Wills, Cent. seems to warrant the conclusion reached. Dig. § 1692; Dec. Dig. Ow705.) In the view of this court the Smith Case can be distinguished from the Roberts Case and Error to Circuit Court, Douglas County; from the case at bar, and should not be held Wm. K. Whitfield, Judge. conclusive upon the question involved in the Suit by Emma Y. McCarty and others two latter cases. But the Supreme Court on against John Wesley McCarty and others to February 19, 1913, denied a transfer (101 N. construe a will. From the decree, certain E. xxii) in the case of Roberts v. Board, etc., infant defendants, by their guardian ad litem, supra, and the opinion, therefore, has the bring error. Reversed and remanded, with effect of a decision of that court, as well as directions to dismiss. of the Appellate Court.

W. Thomas Coleman, of Tuscola, guardian It is the opinion of this court that the de- ad litem, for plaintiffs in error. Edward C. cision in Roberts v. Board, etc., should be Craig, Donald B. Craig, and James W. Craig, overruled; that the case of Smith v. State Jr., all of Mattoon, for defendants in error. ex rel., supra, should be distinguished, and the judgment in the case at bar be reversed, CARTWRIGHT, J. Francis A. McCarty but, for the reasons stated, this court has died in May, 1899, leaving Emma Y. McCarty, not the power so to do. The case is there his widow, and John McCarty, William F. fore transferred to the Supreme Court under McCarty, Caroline McCarty, Laura F. Mcthe provisions of section 1394, Burns 1914, Carty, and Frances McCarty, his children and with the recommendations above stated. heirs at law. He left a last will and testa

ment, by which he devised to his wife, Emma (275 Ill. 573)

Y. McCarty, an estate in all his property, real MCCARTY et al. v. MCCARTY et al. and personal, during her life while she re(No. 10852.)

mained his widow, and provided that if she (Supreme Court of Illinois. Oct. 24, 1916. Re- should remarry the estate should be divided hearing Denied Dec. 14, 1916.)

according to the statutes of descent; that

if she died his widow the estate was then to 1. WILLS 695(2) CONSTRUCTION – JURIS- be divided into the number of equal shares DICTION OF COURTS.

Rev. St. c. 22, § 50, as amended in 1911 provided by the provisions of the will to be (Laws 1911, p. 253), giving courts of equity ju- distributed among his five children as therein risdiction over bills to construe wills where no provided; and that if any of the children trust was involved, does not give such courts should die previous to the widow's death, jurisdiction over a bill to determine the rights of the life tenant after purchasing the remainders leaving a child or children, the child's share vested in the children against the grandchildren, should go to such child or children. He

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