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fied, the store was properly disconnected and sary to consider the third and fourth requests the water shut off, and that the damage was of the defendant, in view of the findings caused by water leaking in over the windows, made. Bailey v. Marden, supra; Cohen v. through the roof, and from a tank in the Berkowitz, 215 Mass. 68, 102 N. E. 124. third floor.

[3] The third, eleventh, twelfth and thirThe plaintiff's first count is for use and teenth requests of the plaintiff refer to the occupation during the months of November, second count of the declaration and were December and January. The second count properly refused. The judge could have is for damages on account of the breach of found that the damage to the house was not the implied covenant to use the premises in caused by the acts of the defendant nor by a tenantlike and proper manner. The court the manner in which the pipes were disconfound for the plaintiff on the first count in nected, and that the defendant was not re. the sum of $35—the rent for the month of sponsible therefor. Finding such facts, as November. The plaintiff appealed.

he did, he could not have given the third [1] It is not disputed that the notification request. Wyche v. Uebelhoer, 223 Mass. 353, of October 2 was insufficient in failing to 111 N. E. 847. give the plaintiff a full month's notice of the [4, 5] While a tenant at will impliedly termination of the tenancy, and in awarding agrees to use the premises in a tenantlike judgment for the plaintiff in the sum of $35 manner, he is not liable for a mere omission (the amount of the rent for the month of or failure to act. He is liable for voluntary, November) the court must have found that but not for permissive waste. Daniels v. the informality in the notice was not waived Pond, 21 Pick. 367, 32 Am. Dec. 269; LO so as "to release the defendant from his throp v. Thayer, 138 Mass. 466, 475, 52 Am. tenancy at the expiration of the rental month Rep. 286; Chalmers v. Smith, 152 Mass. 561, of October.” Even if the judge was wrong 26 N. E. 95, 11 L. R. A. 769. The eleventh, in granting the second request of the defend-twelfth and thirteenth requests, therefore, ant, in view of his findings of fact the plain- were hardly accurate, taking into account tiff was not harmed by this ruling; neither this rule of law. But even if they were true was she injured by the first ruling given at statements the plaintiff was not prejudiced the request of the defendant. See Boston thereby, because the judge gave the fourSupply Co. v. Rubin, 214 Mass. 217, 220, 101 teenth request, which correctly stated the N. E. 133; Bailey v. Marden, 193 Mass. 277, law and included all that plaintiff could 79 N. E, 257.

fairly ask on this branch of the case. This [2] The plaintiff in her seventh request also disposes of the eighteenth request. asked, “On all the evidence, there was no Order dismissing the report affirmed. acceptance by the plaintiff of a surrender of the premises." The record shows, "The court

(225 Mass, 345) refused to grant the seventh ruling requested

MORSE et al. y. O'BRIEN. as to the months of December, et sequentia.” Considering the conversation of (Supreme Judicial Court of Massachusetts.

Suffolk, Dec. 15, 1916.) the parties, shortly after the notice was re

TRUSTS 274(2)-ADMINISTRATION-APPORceived by the piaintiff; her letter of Novem

TIONMENT OF EXPENSE OF REBUILDING. ber 2, when the keys were received, in which Where trustees rebuilt an out-of-date buildshe said she would use them in securing a ing of the trust, and, so far as the remaindertenant “as she understood he had abandoned transaction, the sale of securities and other

were concerned, nothing was lost by the the premises,” although she would continue property to pay for the work increasing the to hold him for the rent; the circumstances value of the building and constituting merely connected with the repairs, the time they life tenants was reduced by the loss of rents

a change of investment, but the income of the were made, the fact that they extended to and of dividends on securities sold by the trusparts of the premises not damaged by water; tees to raise money for the reconstruction, the occupation of the second floor apartment though the rebuilding increased rents, the trus

tees properly charged to capital, and credited during the month of December; examin

to income, the amount of rents lost, to reiming the entire evidence, we think the judge burse the life. tenants partially for the loss of could have found that the plaintiff fully ac

rents and dividends, since life tenants and re

maindermen should share such expense equally, cepted the abandonment and surrender of the and, when the respective benefits cannot be acestate, that the plaintiff's acts of control and curately determined, the question must be left occupation were inconsistent with the re- largely to the sound discretion of the trustees. lation of landlord and tenant, and that the

(Ed. Note. For other cases, see Trusts, Cent.

Dig. 8 390; Dec. Dig. Om 274(2).] tenancy was finally terminated at the end of Norember. Talbot v. Whipple, 14 Allen, 177; Case Reserved from · Supreme Judicial Amory v. Kannoffsky, 117 Mass. 351, 19 Am, Court, Suffolk County. Rep. 416. There was no error of law, there Accounting by Robert M. Morse and anfore, in the manner in which the plaintiff's other, trustees, against James J. O'Brien, seventh request was dealt with, nor in the guardian ad litem. From a decree of the modification made to the first and second probate court disallowing an item in the acrequests of the plaintiff. Neither is it neces- count, the trustees appeal. On reservation


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

for the consideration of the full court. De

To carry on the contemplated work it cree of the probate court modified, and, as was necessary to vacate the premises; and modified, ordered affirmed.

in seeking to reach an equitable adjust

ment between the parties in interest and Loring, Coolidge & Noble, of Boston, for

for this purpose to ascertain the cost of the appellants. Jas. J. O'Brien, of Boston, pro se.

completed structure, the trustees included as

part of the expense the loss of rents while the CARROLL, J. This is an appeal from a work was in progress. This loss, made necdecree of the probate court disallowing an essary by the rebuilding, was in our opinion item of $1,691.45 in the account of the trus- a part of the expenses, and might properly tees under the will of Benjamin Adams. This be considered in determining the entire cost item was charged to capital and credited to of the work. Boles v. Boston, 136 Mass. 398; income, to reimburse the life tenants for the Warren v. Pazolt, 203 Mass. 328, 89 N. E. loss of rentals during the remodeling of the 381. See Williams v. Boston, 190 Mass. 541, building 5–23 Doane street, Boston. The trust 551, 77 N. E. 509. The only reasonable inincluded the residue of the personal and real ference from the agreed statement of facts estate. In 1909, the personal property was is that this loss was the net rents which the appraised at $122,504.82, invested in divi- life tenants would have received but for the dend-paying securities, and the real estate at

reconstruction. $366,600, including the premises numbered

So far as the remaindermen were con5-23 Doane street, valued at $106,000.

cerned, nothing was lost by the transaction. The building on Doane street was built in The sale of the securities and other propthe early 40's and had not since that time erty increased the value of the real estate, been altered in any substantial manner. The and was merely a change of investment. offices were small, inconvenient and inferior On the other hand, the income of the life for such use; new tenants could not be ob- tenants was reduced by the loss of rents and tained, and the income was decreasing as by the loss of dividends in the sum of $432.50 the building grew older. The trustees re- on the securities sold by the trustees in order modeled the building, believing it would be to raise money for reconstructing the buildfor the benefit of the life tenants and remaining, for which no substitution is made ex. dermen. The work of remodeling began cept indirectly through the rents.

See Edlate in the summer of 1909 and was complet- wards v. Edwards, 183 Mass. 581, 67 N. E ed in July, 1910, at a total cost of $57,196.88.658. The lost rent being a part of the cost The expense of alteration was paid from the of the completed building, if this item of proceeds of the sale of rights, of land, and $1,691.45 is disallowed, the entire loss falls of income-bearing securities to the amount of on the life tenants. Manifestly this would $48,717.61. The agreed statement of facts be unfair to them. shows that the “trustees were under a duty

In proportion to the benefits received the to rebuild this building and that the cost of life tenants and remaindermen are to share such rebuilding was properly charged to the equally the expense; and when the respec. principal of the trust fund," and "if it is tive benefits cannot be accurately determined, within the powers of trustees to * thus it is difficult to decide precisely what share include in the cost of the remodeling the sum of the expenses should be paid by each. In objected to, that these trustees acted in entire such a case, it is apparent that the question good faith in making such apportionment,” but must be left largely to the sound discretion the guardian ad litem contends that they did of those whose duty it is to manage the estate not use "the proper rule of apportionment.” for the best interest of all the beneficiaries.

"During the alteration, tenants then in the In Jordan v. Jordan, 192 Mass. 337, 343, 78 building had to be turned out, and the amount N. E. 459, 460, where changes and improveof rental that would have been received from ments were made in a building and the divi. these tenants if they had remained in occu- sion of the expenses by the trustees between pation, amounted to the sum of $1,691.45, capital and income was questioned, Braley, which amount was equal to four per cent. J., said: on the value of the rented space vacated.”

"In the management of such property details of The dividends paid on the securities sold by administration must be left very largely to the the trustees between the dates of sale and sound discretion of those entrusted by the testhe completion of the alterations amounted tator with its development as a source of rev.

enue, and these disbursements having been to a total of $432.50. The rents have increas- found justifiable, the apportionment by the trused since the building was remodeled.

tees so far as it is now in dispute does not apAlthough the improvements were a per- pear to have been erroneous.' manent and substantial advantage to the There is nothing to show that the discreentire estate and the trustees exercised a tion of the trustees was exercised in an imsound discretion in making them, the guard-proper or capricious way, or that the life ian ad litem now contends that the trustees tenants were given an unfair advantage over (had no power to include in the cost of recon- the remaindermen. As the trustees acted in struction the sum objected to, in making the good faith and the rule of apportionment

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equitable, the apportionment as made by This is a petition for the registration of a them should stand.

title to land under 'R. L. C. 128, and acts in The decree of the probate court is to be amendment thereof which is the so-called modified by allowing the item of $1,691.45, Torrens system. The general purpose of and so modified is affirmed.

that statute is to empower the land court to So ordered.

determine the actual state of the title to the

land described in the petition, and not to (225 Mass, 217)

clear the land of encumbrances manifestly SEDERQUIST v. BROWN et al. existing of record. It is required by section (Supreme Judicial Court of Massachusetts. Suf-39 that the decree of registration shall confolk. Nov. 29, 1916.)

tain a description of the land and RECORDS 9(5) - REGISTRATION OF TITLES "shall set forth the estate of the owner and also, LAND COURT-JURISDICTION-STATUTE. in such manner as to show their relative priority,

Rev. Laws, c. 128, and acts in amendment all particular estates, mortgages, easements, thereof, create the land court, and provide for liens, attachments and other encumbrances the registration of titles to land. Section 39 pro

to which the land or the owner's estate vides that the decree of registration shall de- is subject." scribe the land, set forth the estate of the owner, and all estates, liens, etc., in manner of their Plainly a special attachment such as was relative priority, to which the land or owner's made by the defendant created a lien or atestate is subject. St. 1904, c. 448, gives the land tachment upon the land. The jurisdiction court jurisdiction of writs of entry, actions to try title, determine incumbrances, discharge of the land court does not extend further mortgages, etc. Rev. Laws, c. 178, 8$ 1, 47, and than to declare the true state of the title. chapter 167, 98 38, 63, 64, fully cover the sub- It is clear from provisions of section 39, alject of special attachments. Held, that jurisdic ready quoted, that it was not the purpose tion is not conferred upon the land court, on a petition for the registration of title of land, to of the Legislature to confer upon the land determine the validity of a special attachment court jurisdiction to determine whether the and decide the ultimate fact whether the attach: actions upon which attachments had been ment is a just lien on the land which ought made were well grounded or not. Jurisdicfinally to be sustained.

[Ed. Note.-For other cases, see Records, Dec. tion to declare the real state of the title Dig. 9(5).]

does not extend to the trial of all actions up

on which attachments have been made, in Report from Land Court, Suffolk County. order to decide the ultimate fact whether the

Petition for registration of title to land attachment is a just lien on the land, which by Maud Y. Sederquist against Ernest L.

ought finally to be sustained. St. 1904, c. Brown, and others. On report from the land 448, does not stretch to a case like that at court. Decree for petitioner in accordance bar. See, also, McArthur v. Hood Rubber with order of land court.

Co., 221 Mass. 372–374, 109 N. E. 162, and Starr Pasons, H. Ashley Bowen, and Chas. Morris v. Small (C. C.) 160 Fed. 142. D. C. Moore, all of Lynn, for petitioner. The provisions of the statutes relative to Innes & Turtle and Fredk. W. Mowatt, all such special attachments as encumber the of Boston, for respondent Brown.

petitioner's land are minute and extensive.

R. L. C. 178, 88 1, 47; chapter 167, 88 38, 63, RUGG, C. J. The title to the parcel of 64. They cover the field. These provisions land described in this petition for registra- would become inoperative in whole or in subtion was acquired by the petitioner in 1907. stantial part if the land court should be Thereafter the respondent, as the plaintiff held to have jurisdiction on a petition for in an action of contract brought against registration of title to try the validity of James W. Sederquist, the husband of the pe- such an attachment. It is not consistent titioner, attached specially all the right, title, with ordinary canons of statute interpretaand interest of the said James W. in and to tion to hold that such unusual powers have the premises in question, the record title been conferred by implication. thereto standing in the name of the petition It is not necessary to determine whether

This attachment is stin outstanding and the petitioner has any other remedy for the the action in which it was made is pending. wrong of which she complains, nor whether At the trial in the land court the petitioner the constitutional guaranty of article 11 of offered to show that at the time of this spe- the Bill of Rights has been adequately procial attachment the defendant in that action vided by the existing statutes. It is enough had no right, title or interest in said prem- to say that the present proceeding cannot be ises, and asked for a decree registering the maintained. Pursuant to the terms of the title in her free from the attachment, alleg- report let the entry be ing that because of the attachment she is Decree for petitioner in accordance with unable to sell the property.

order of land court.


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

(225 Mass. 341)

an order sustaining a demurrer to the bill, MACURDA et al. v. FULLER et al. plaintiffs appeal, and defendants Woodward (Supreme Judicial Court of Massachusetts.

appeal from an order denying their motion Middlesex. Dec. 12, 1916.)

that the clerk be required to issue an execu

tion forthwith against plaintiff for costs. 1. DEEDS Ow32–VALIDITY-NAME OF GRAN- Affirmed on plaintiffs' appeal, and defendants' TEE LEFT BLANK.

A deed in which the name of the grantee is appeal dismissed. left blank is invalid. [Ed. Note.-For other cases, see Deeds. Cent.

Fred E. Crawford, of Boston, for appelDig. 64; Dec. Dig. 32.]

lants. Adams & Blinn and Amos L. Taylor, 2. PRINCIPAL AND AGENT 117(2)—AUTHOR- all of Boston, for appellees. ITY TO FILL IN BLANK DEED.

The direction to an attorney to fill in, at a future time, the name of the grantee in a deed,

PIERCE, J. The amended bill alleges that confers on him no legal right, because the fill- one Tower, January 29, 1902, conveyed the ing in of such a blank would create a substantial real estate therein described to one Mary part of the deed itself, and stand on the same H. Smith, to prevent its attachment in an footing as signing and sealing, and could be authorized only by a power under seal.

anticipated action of tort for damages re(Ed. Note.--For other cases, see Principal and sulting from an accident whereby a child was Agent, Cent. Dig. $ 382; Dec. Dig. Oml17(2).) run over by a carriage occupied by Tower and 3. PRINCIPAL AND AGENT Cm117(2)—RIGHT driven by his wife. TO DELIVER DEED.

The bill alleges that Tower "had sufficient When the grantee's name is filled in the other money to meet any reasonable judgment blank in a deed in the presence of the grantor who has previously executed it, the grantor may which might be obtained against him," but by parol authorize bis agent to make delivery does not state that he had sufficient other of the deed.

money or property that could be come at to (Ed. Note. For other cases, see Principal and be attached or taken on execution. The Agent, Cent, Dig. $ 382; Dec. Dig. Omi17(2).J

grantee had a mortgage on the premises con4. DEEDS 58(3)—DELIVERY,

Where an agent fills in the name of the veyed to her to secure the payment of $5,000, grantee in a deed, in the presence of the grantor, which so far as appears, remains unpaid. who has previously executed it and deposited it with the delivery of the deed the grantee with the agent to be so filled in, and the agent Smith signed, sealed and acknowledged an is authorized to deliver the deed, the delivery does not relate to the time the incomplete instru- instrument with the name of the grantee in ment was deposited with the agent, but is refer- blank, describing the same premises simulable either to the actual delivery, or to the time taneously conveyed to her, and placed this when the grantee's name is filled in.

[Ed. Note. For other cases, see Deeds, Cent. deed, in pursuance of an oral agreement with Dig. $ 132; Dec. Dig. Om58(3).]

Tower, in the custody of their common at5. FRAUDS, STATUTE OF 74(2)

torney, Samuel A. Fuller, with a parol di


rection to Fuller “to insert the name of said Because of Rev. Laws, c. 74, § 1, cl. 4, pro- George A. Tower into said deed as grantee on viding that no action shall be brought on a the termination of said suit and to record contract for the sale of land unless the same in writing, etc., one to whom realty has been the same." conveyed on consideration that he reconvey it The action was tried and a verdict for the on a contingency, cannot be compelled to re- defendant was rendered January 25, 1903. convey it, if his agreement was by parol.

For reasons that do not appear, final judg[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 128; Dec. Dig. Cm74(2).] ment for the defendant was not entered until

February 1, 1907. Tower died on or before 6. FRAUDS, STATUTE OF C138(3)–ENFOBCE: February 3, 1906, and Smith died on or MENT OF TRUST-PAROL TRUST-REPUDIATION BY TRUSTEE-EXTENT OF RELIEF. about March 3, 1907. October 18, 1906, un

Where land has been conveyed on an oral der a license of the probate court, the nature trust unenforceable because of the statute of of which nowhere appears, the administrafrauds, Rev. Laws, c. 74, & 1. cl. 4. the grantor trix of the

Tower estate sold to the petitionmay recover the value of the realty.

[Ed. Note.-For other cases, see Frauds, Stat. ers the second parcel of the lots conveyed ute of, Cent. Dig. § 329; Dec. Dig. Om 138(3).] to Smith. February 19, 1907, the grantee 7. Costs em 280_ENFORCEMENT—ISSUANCE OF Mary Smith conveyed to James B. Woodward EXECUTION-REFUSAL OF CLERK-REMEDY. who died intestate January 8, 1912, leaving

The proper procedure and remedy of defend a widow and one heir at law, the appellees, a ants to obtain redress upon improper refusal of the clerk to issue execution for costs on dismis- portion of the parcel described in the deed sal of the bill was not by motion that the clerk of the administratrix. The bill charges be ordered to forthwith issue execution against Woodward, his widow and heir at law "with plaintiffs.

full notice and knowledge of all the facts set [Ed. Note. For other cases, see_Costs Cent. out in this (their) petition." Dig. $8 1040–1042; Dec. Dig. Om 280.)

Fuller "did not at the termination of the Appeal from Superior Court, Middlesex action and has not yet written the name of County; W. C. Walt, Judge.

said George A. Tower as grantee in said deed Suit by William E. Macurda and others of reconveyance and has not recorded the against Samuel A. Fuller and others. From same, as directed by said Mary H. Smith.”

The prayers are, first, "That the respondent | Am. St. Rep. 499; HII v. Hill, 196 Mass. 509, [Fuller] be directed to write in the name of 82 N. E. 690. said George A. Tower as grantee in said Decree affirmed. deed and to place the same on record ;" and, [7] The defendants Woodward, as to whom second, “And for such further relief as shall the bill was dismissed with costs, seek to apto the court seem proper." The respondent peal from an order denying their motion that Woodward demurred.

the clerk be ordered to issue an execution November 2, 1914, an order was entered forthwith against the plaintiff. Assuming sustaining the demurrer.

without deciding that the appeal is rightly beDecember 17, 1914, a final decree was enter-fore us, we are of opinion that the procedure ed dismissing the bill. An appeal was taken and the remedy to obtain redress upon the to the order of November 2, 1914, but no ap- improper refusal of the clerk to issue an expeal was ever taken to the final decree ofecution for costs, is not that sought and folDecember 17, 1914. The failure to take an lowed in the case at bar. appeal from the final decree was not the re Appeal dismissed. sult of an accident or mistake of fact, but was due to the belief that the appeal from the order for an interlocutory decree sus

(225 Mass. 338; taining the demurrer was in itself sufficient

BYRNE et ux. V. SAVOIE. without appeal from the final decree. We as (Supreme Judicial Court of Massachusetts. sume without deciding that the appeal from

Bristol, Dec, 6, 1916.) the order was an appeal from the final decree when entered and that the suit is properly


TIARY FACTS. before this court.

Evidentiary facts held to justify the conclu[1, 2] The order sustaining the demurrer sion of fact and ruling of law of existence of a was right. The instrument delivered to Ful- public highway created by prescription. ler was without validity and the direction to

(Ed. Note. For other cases, see Highways, him to fill the blank space with the name of Cent. Dig. § 24; Dec. Dig. Om George A. Tower conferred on him no legal


As, under St. 1846, 8 203, acceptance necesright because the filling in of such a blank sary to dedication of a highway can only be by created a substantial part of the deed itself, laying it out according to the ordinary mode pre"stood on the same footing as signing and scribed by law, and any mere throwing open of a sealing and could be authorized only by a the owner of land subject to the easement of

way to the public is simply a revocable license, power under seal.” Burns v. Lynde, 6 Allen, highway does not terminate that burden, and im305; Basford v. Pearson, 9 Allen, 387, 85 pose it on adjacent land, by constructing anothAm. Dec. 764; White v. Duggan, 140 Mass. er equally sufficient and convenient way on the 18, 19, 2 N. E. 110, 54 Am. Rep. 437; Phelps which he closes, the owner of the adjacent land

adjacent land in substitution of the existing way, v. Sullivan, 140 Mass. 37, 2 N. E. 121, 54 Am. not being a party to such substitution, but acRep. 442.

quiescing therein, with all other parties in in[3, 4] No question arises, indeed there can terest for a period less than 20 years. be none, as to the right of Fuller to make Cent. Dig. 88 234, 235, 238; Dec. Dig. Om 70.]

[Ed. Note. For other cases, see Highways, delivery of the deed, under parol authority, whenever it should become a completed in

Exceptions from Land Court, Bristol strument by the filling in of the blank in County. the presence of the grantor. White v. Dug

Petition by James Byrne and wife against gan, supra. Phelps v. Sullivan, supra.

In Henry Savoie for registration of title to land. such case the delivery cannot relate to the There were rulings and findings adverse to time of the deposit of the incomplete instru- petitioners, and they bring exceptions. Exment, but is referable either to the actual de ceptions sustained. livery or to the time when the instrument be Chas. P. Ryan and Edwd. T. Murphy, both came a deed and capable of delivery.

of Fall River, for petitioners. Jennings & [5, 6] The conveyance of a portion of the Brayton, of Fall River, for respondent. land by Smith in 1907, was a distinct and unqualified repudiation of the trust agreement PIERCE, J. [1] The conclusion of fact and and of necessity made it impossible there- ruling of law, that a public highway called after to confer upon Fuller power to make the Old New Boston road, created by prethe instrument a deed by filling the blank scription, from about 1790 to 1893 ran across with the name of a grantee. By reason of R. the locus sought to be registered and thence L. C. 74, s. 1, cl. 4, the grantee could not have across the Whittaker lot, which adjoins the been compelled to reconvey the property her- locus on the west, into Locust street at its self or to confer a power under seal to ex-junction with Hill street, was fully warrantecute a deed upon Fuller. The remedy on ed by the evidentiary facts, that it had been her refusal would be an action at law to re- "used by the public for over one hundred cover the value of the property. Cromwell years for all purposes for which a public v. Norton, 193 Mass. 291, 79 N. E. 433, 118 road would be used in such a district"; that

Om for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
MASS.DEC.111-115 N.E.-47

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