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“The expression 'if he should leave the Tudor For the reasons stated, it is obvious that Company before January, 1891,' can only mean, the defendant's requests for rulings could if he should resign, or voluntarily quit or give up his employment. It is not the proper form not have been given. The exception to the of expression for the case of his expulsion or admission of all the evidence except the letdismissal by the act of the company, without his ter of September 8, 1896, cannot be sustained. consent, and against his remonstrance. The plaintiff is in a position to say that he has The evidence admitted, including the corres wrongfully been prevented from finishing the pondence of the parties, was all competent proposed service, and that his rights are sub- as tending to show what took place between stantially the same as if he had served for the them, and

was material upon the issue whole term.”

whether the plaintiff voluntarily left the de[2] We are also of opinion that it could fendant's service or was discharged. not be ruled that the plaintiff voluntarily re In accordance with the terms of the report, signed, even if his resignation was sent to the judgment is to be entered for the plaintiff in defendant in the absence of fraud or duress the sum of $1,000 with interest thereon from practiced upon him. It is plain that when the date of the writ. the letter dated September 3, 1896, was de So ordered. livered to the plaintiff, he had already been discharged and that Gibson had been em

(225 Mass. 414) ployed in his place. In this letter it is ex- SPARHAWK et al. v. GOLDTHWAITE et al. pressly stated that:

(Supreme Judicial Court of Massachusetts. "His [Gibson's) superintendency will date from

Essex. Jan. 4, 1917.) the presentation of the letter and you will please place him in complete possession of the office 1. WILLS Om693(2)→POWER OF SALE. and the company's property.

A will devising testator's property to his The formal resignation, embodied in the vidow, subject to condition that she support

testator's brother, and giving her power and auplaintiff's letter of September 8th, to the de- thority to sell any part of the estate, if at any fendant, was but an idle ceremony, because it time she should think it necessary for the comcould not operate as an effectual resignation fortable maintenance of herself or the brother, of an employment from which he had previ- acting in good faith, should deem necessary to

authorized the widow to effect such sale as she, ously discharged. That the fendant's provide comfortably for herself and the brother, letter amounted to a dismissal of the plain- and her power to sell was not restricted to her tiff and was so understood by the defendant's “actual needs." superintendent, clearly appears from the in

[Ed. Note.-For other cases, see Wills, Cent.

Dig. § 1655; Dec. Dig. Om693(2).] terview which the plaintiff testified he had with Thomas, the superintendent, in New 2. TRIAL Om 252(5)—INSTBUCTIONS APPLICA

BILITY TO EVIDENCE, York on September 14, 1896, when the plain

In trial of writ of entry, the defense being tiff asked Thomas to give him the reasons for power of defendant's grantor to sell under a his discharge, and Thomas replied “that when will, an instruction that the will did not authorthe defendant discharged a superintendent ize mortgaging any part of the estate was prop

erly refused as inapplicable; it not appearing no reason whatever was given," and also said, that the land in controversy or any other part “It was a rule of the company never to rein- of the estate was mortgaged. state a discharged superintendent.

(Ed. Note. For other cases, see Trial, Cent. The defendant did not deny these statements Dig. § 600; Dec. Dig. Om 252(5).] of Thomas and they could have been found 3. TRIAL C252(5)-INSTRUCTIONS APPLICAto be true. Whether the plaintiff was discharged, or voluntarily left the service of the power of defendant's grantor to sell under a

In trial of writ of entry, the defense being defendant, was a question of fact properly will, an instruction on the duty of the grantor for the determination of the jury under all to exhaust the personal property before selling the circumstances as presented by the evi- the real estate was properly refused, where the

findings showed she wisely sold the nonproductive dence.

property and retained an income-producing mort[3] We are of opinion that the jury were gage. warranted in finding that the plaintiff did (Ed. Note.-For other cases, see Trial, Cent. not voluntarily "leave the service" of the Dig. $ 600; Dec. Dig. 252(5).] company, but was peremptorily dismissed. 4. POWERS Om34(2)—SALE UNDER-NECESSITY Price v. Minot, ubi supra. Cooper v. Stronge OF RECITAL, & Warner Co., 111 Minn. 177, 126 N. W. 541, band's will to sell land necessary for her sup

Where a widow had power under her hus27 L. R. A. (N. S.) 1011, 20 Ann. Cas. 663 ; port, her failure to set out such power in her Jones v. Graham & Morton Transportation deed did not avoid the deed, where it appeared Co., 51 Mich. 539, 16 N. W. 893; Cumberland that the sale was reasonably necessary for her & Penn. R. R. V. Slack, 45 Md. 161. So far support. as the majority opinion in Wharton v. Chris- Dig. gg 12142-127; Dec. Dig. Ow34(2).]

[Ed. Note.-For other cases, see Powers, Cent. tie, 53 N. J. Law, 607, 23 Atl. 253, is in conflict with the views herein expressed, we can Exceptions from Land Court, Essex County. not follow it. In view of the finding of the Writ of entry by Samuel R. Sparhawk and jury, the judge could have found that the others, demandants, against William J. Goldplaintiff was entitled to recover the amount thwaite and others, tenants, in which the named in the policy.

Parker Shoe Company, a corporation, moved


that it be allowed to appear as tenant and state, and if at any time she shall think it necesdefend, on the ground that it was in posses- sary for the comfortable maintenance or support sion of the parcels referred to, and this mo

of berself, or of my brother Samuel Sparhawk,

2d.” tion was allowed, with the consent of the demandants. Judgment for tenants, and

William Sparhawk died October 23, 1885. demandants excepted. Exceptions overruled. In 1893 the widow conveyed a small tri

The instructions referred to were as fol- angular portion of the demanded premises for lows:

the sum of $30, which was full value therefor. (1) That the will of William Sparhawk, from In 1904 she conveyed the remainder of the whom all parties in interest claim to derive their demanded premises for $1,050, a full and adetitle, gave Harriet E. Sparhawk a life estate quate price. Among the findings of fact with a limited power to sell and convey, depend, made by the land court are the following: ent upon the actual need of herself or Samuel Sparhawk for support or maintenance.

"The demanded premises consisted of a house (2) That the burden is on the tenants to show lot in Marblehead with an old house thereon that there was such actual need of support and used as a tenement, very much out of repair and maintenance on the part of Harriet E. Spar- standing next to the factory of the defendant hawk or Samuel Sparhawk.

shoe company in a very poor neighborhood for (3) That the power to sell, which was given tenants. The widow lived in her husband's forto Harriet E. Sparhawk by the will of William mer homestead in a very frugal manner, finding Sparhawk, did not authorize or empower her to great difficulty in paying the premiums for the mortgage any part of the estate.

fire insurance policies on the property of the es(4) The sale of land by Harriet E. Sparhawk tate, unable to make proper repairs on the deto John M. Ward, and the receipt by her of a manded premises, and complaining of the sums mortgage from_said Ward, (Exhibits I and J), of money called for by her brother-in-law, the gave Harriet E. Sparhawk a fund or personal said Samuel Sparhawk, for his support up to the property which, together with the cash received time of his death in 1906.

She stated by her froin said Ward, and the other income, to the agent who arranged the sale that the deshe had to exhaust for the support and mainte- manded premises were a drain upon her, that dance of herself and Samuel Sparhawk before she was unable to collect any rents, which I she could make a valid conveyance of any por- find was a fact, and that it was, therefore, nection of the estate so as to cut off the rights of essary for her to sell.

I find that at the remaindermen therein,

the time of the sale it was necessary for her to (6) The record of the deed from Harriet E. use some portion of the principal of the estate, Sparhawk to John M. Ward, the record of the and that if she had the power to exercise her mortgage back from John M. Ward to Harriet discretion then she exercised it wisely and to the E. Sparhawk, and the records of all proceedings advantage of the demandants in selling the depertaining to the estate of William Sparhawk manded premises, which were unproductive, a in the probate court for the county of Essex, source of expense, and in need of repairs which were notice to subsequent purchasers that the she could not make, and in keeping the incomecondition precedent to a valid exercise of the producing mortgage; and I find that she acted power by Harriet E. Sparhawk-viz. need of in good faith.” funds for support and maintenance of herself and Samuel Sparhawk,-did not exist.

[1] It is plain from the language of the (7) The failure on the part of Harriet E. Spar- second clause of the will that his principal hawk to set out in her deed to James N. Parker purpose was to furnish comfortable support and others the power under, or the capacity in and maintenance for his widow; and, subwhich she purported to convey, or otherwise to inform them thereof in the said deed, was of it.ject to her discretion, to provide for the supself sufficient to render the said conveyance to port of his brother Samuel. In addition to James N. Parker and others void and of no ef- the income of his estate, he gave her unlimitfect.

ed power to sell all or any part of it-if we John E. Galvin, of Boston, for demandants. take the language of the last sentence literalCurrier, Young & Pillsbury and P. G. Carle ly. Even eliminating the word "and," and ton, all of Boston, for tenant Parker Shoe Co. thereby expressing more clearly what pre

sumably was his real intention, the power DE COURCY, J. The tenants claim title was broad enough to authorize such sale as to the land in controversy by mesne convey. she, acting in good faith, should deem necances from Harriet E. Sparhawk, widow of essary to provide comfortably for herself and William Sparhawk. The controlling question Samuel

. Hoxie v. Finney, 147 Mass. 616, 18 in the case is whether there was a valid ex- N. E. 593; Dana v. Dana, 185 Mass. 156, 70 ecution of the power given by his will in the N. E. 49; Griffin v. Kitchen, 114 N. E. 431 following paragraph:

[2-4] The foregoing disposes of the de. “Second, I give, devise and bequeath all my mandants' first and second requests for rul. estate, Real Personal and mixed of which I shall ings; her power to sell was not restricted die seized and possessed or to which I shall be to her “actual needs.” The third was not apentitled at the time of my decease to my beloved wife Harriet E. Sparhawk, to have and to hold plicable to the facts, as Mrs. Sparhawk did the same to her during her natural life, subject not mortgage the land in controversy, nor any only to the condition, that my brother Samuel other so far as appears. The fourth and now a resident of Cheyenne, Wyoming territory, sixth were rightly refused. In the exercise shall during his life receive a comfortable main. tenance and support, both in sickness and health, of the wide discretion to sell all and any part out of my said estate, and I hereby, give to my of the estate, real and personal, on the ind said wife, H. E. Sparhawk, free power and au- ings she wisely sold the nonproductive propthority, to use her own discretion as regard the amt necessary for my brother's comfort, I also erty in 1893, and retained the income-producgire my wife free power, and authority to sell ing mortgage. Indeed it was to the advantage and dispose of all and any part of my said es- of the demandants that she did not spend the

mortgage money in repairing the old house, 14. WILLS 460_CONSTRUCTION-INTERPREbut kept it, using a portion for the support

TATION OF CLAUSE. of Samuel until his death in 1906, and of tion of testatrix can be transposed and read

The subsequent clause declaring the intenherself until she died in October 1911. The with the clause devising the property under the seventh, which applies only to the deed of the settled rule of construction that, to ascertain small lot, is disposed of by the cases of the intention, words, sentences, and clauses in

the will may be transposed, if by the transposiGould y. Mather, 104 Mass. 83, and tion the intention is found and given effect. Ladd v. Chase, 155 Mass. 417, 29 N. E. 637. [Ed. Note. For other cases, see Wills, Cent. The demandants have not argued their excep- Dig, $ 979; Dec. Dig. 460.) tions to the rulings given at the request of 5. WILLS 435 –RIGHTS OF LEGATEES-CONthe tenants, and we treat them as waived. STRUCTION BY TRUSTEES. Exceptions overruled.

The fact that the trustees under the will and the first stepson and his children construed

the will as giving the property to the children (225 Mass. 380)

after the death of the other stepson, and that RENWICK v. MACOMBER et al. the trustees conveyed the real estate to the chilHOWES V. SAME.

dren, does not bind them to follow the same

construction in disposing of the proceeds of (Supreme Judicial Court of Massachusetts. the sale of some of the real estate, since an erBristol. Jan. 3, 1917.)

roneous distribution of part of the estate does 1. WILLS 614(9) CONSTRUCTION IN

not entitle the recipients to the balance thereof. TEREST CREATED.

(Ed. Note.-For_other cases, see Wills, Cent. A testatrix entered into an agreement with Dig. g 946; Dec. Dig. Cw435.] a stepson by which she promised to make a will 6. WILLs 212 RIGHTS OF LEGATEES devising the property she received from her hus AGREEMENT. band to her two stepsons, and in accordance

Where the parties interested in a will make therewith executed a will in which she devised a compromise agreement under Rev. Laws, c. that property to trustees to convey one half to 148, S8 15-17, whicb is approved by the court, one stepson, who was then married and had two or make a settlement apart from the statute, children, or, if he should die before testatrix, the will is nevertheless admitted to probate then to his children share and share alike, and and valid, and the parties are relegated to their to hold the other half of the property for the contractual rights. benefit of the other stepson, who had at that time no children, during his life, and, if he Dig. Š 519; Dec. Dig. Omn212.]

[Ed. Note.-For other cases, see Wills, Cent. should thereafter die leaving children, to convey his share to such children, but, if he should Appeal from Probate Court, Bristol Coun. die before testatrix leaving no children, then ty; Arthur M. Alger, Judge. the first stepson should take all of the property. By a subsequent clause testatrix declared it to

Separate petitions by Harold S. Renwick be her intention that the real estate left her by and Kenneth Howes against William B. her husband and the proceeds thereof should Macomber and others to reopen the account at her death go to his children, if living, and, of the respondents as trustees under the will if either be dead without issue, to the survivor of them, or with issue, to such issue. Both step- of Annie E. Renwick, deceased, and to comsons survived testatrix, and the stepson having pel respondents to pay over to petitioners the children died before the other, who later the amount which respondent Macomber died, leaving no issue, but having disposed by will of the property received from his stepmother. claimed under the will of Frederick W. Ren. That property was subsequently claimed by the wick, deceased. The probate court denied children of the other stepson. Held, that the the relief prayed for, and petitioners appealsecond stepson, having survived testatrix, took an estate for life with remainder subject to be ed to the single justice, who, with the condivested if at his death he had issue, and that, sent of the parties, reserved the case for the having died without issue, the remainder was determination of the full court. Decree of part of his estate and passed to the devisees probate court affirmed. named in his will.

(Ed. Note.-For other cases, see . Wills, Cent. John Abbott, of Boston (S. Robinson, of Dig. $ 1402; Dec. Dig. Om614(9).]

New York City, of counsel), for petitioner 2. WILLS 293(6) CONSTRUCTION Ex- Howes. J. W. & C. R. Cummings, of Fall

TRINSIC EVIDENCE AGREEMENT TO MAKE River, for petitioner Renwick. Eugene J. WILL.

The agreement to make the will, having been Hadley, of Boston, and Benj. B. Barney, of executed only nine days before the will, could New Bedford, for respondents. be considered in determining the intention of the testatrix, even if the will was not submit

BRALEY, J. [1] The testatrix "died domted to the other party thereto as the agreement provided.

iciled in this commonwealth,” and although [Ed. Note.-For other cases, see Wills, Cent. the real property was situated in the state Dig. $8 676-678; Dec. Dig. On 293(6).) of New York, and under the doctrine of equi3. WILLS ww682(2)-CONSTRUCTION-INTEREST table conversion the proceeds of any sales CREATED-EQUITABLE FEE.

by the trustees or of the testatrix in her The first stepson, having survived testatrix, took an equitable fee in the real estate or in the lifetime are to be treated as land (Tbissell y. proceeds of that part which testatrix sold under Schillinger, 186 Mass. 180, 185, 71 N. E. 300), à power she reserved to herself, the income to the parties have agreed that the cases are be used by her during her life, and the princi, to be decided in accordance with the laws of pal to pass at her death the same as the real her domicile. By the will of her husband estate would have passed.

[Ed. Note.-For other cases, see Wills, Cent. the testatrix received the larger part of his Dig. 88 1607-1611; Dec. Dig. Om682(2).) estate, and his son Stanhope C. Renwick

having opposed admission of the will to pro- | vey the share of each as they respectively atbate, although his brother Frederick W. Ren- tain majority; and if there be but one child to wick does not appear to have joined, the convey the same to him on his attaining lis ma

jority. And I give to my executor power and agreement between her and Stanhope termic authority for the purpose of making such divinating the contest, executed nine days before sion or partition or as he may deem advanta. the date of her will, after reciting that “in geous for the party interested therein, to sell and accordance with what she believes was the such manner as he shall see fit, at public of

convey at suc times, upon such terms and in desire of her husband in order to secure private sale, any or all of the real estate held to his said children maintenance in the fu- by him in trust for my stepson, Frederick W. ture” she “has determined to and has made Renwick, or his children, the proceeds of such

sale or sales to be held upon the same trusts or is about to make her will by which she stated herein. If at the time of my death has devised to the said Stanhope C. Renwick Frederick W. Renwick shall have died, leaving and Frederick W. Renwick, children of her no issue to survive him, in such case I give and late husband, all the real estate now unsold said real estate and the proceeds thereof.

devise to Stanhope C. Renwick the whole of my and undisposed of by her which was devised “Third. If at the time of my death I shall to her by her husband by his last will and have sold any of the real estate devised to me testament

duly proved,” and that by my husband, and now held by me, and I re"the terms of said devise have been made in my discretion, the proceeds of such real es

serve full power and authority to make such sale known to said Stanhope C. Renwick and are tate 1 give to my executor to be held upon the acceptable to him," she covenanted, "that same trusts and to be paid over in the same the provision made in her will as aforesaid estate in case it shall not be sold by me; it be

manner as I have provided relative to such real relative to the devise of real estate unsold ing my wish and intention that the said real shall not be changed during her lifetime, estate and the proceeds thereof shall, after my nor shall said will be revoked, changed or death go to the children of my said husband, if modified in respect of the said real estate the survivor of them, or with issue to such is

living, and if either be dead without issue to except by the execution of another will sue per stirpes and not per capita. which shall contain the same provisions in “Fourth. I hereby authorize said Stanhope respect thereto.

C. Renwick to provide by will for the support

and maintenance of his wife, Evelyn, in case (2] It is immaterial whether a draft of the of his decease before me, by devising and beproposed will or of the will as executed was queathing to her a portion of the income of the ever exhibited to him. The parties inter- property wbich he would take under this will

if living, not to exceed one third of the income ested have acted upon the assumption that thereof, and to direct that the remainder of the in so far as applicable to this portion of income be paid to her during the minority of his her estate the will was executed pursuant to children for their support and education." the agreement, which is clearly admissible

[3] The stepsons survived the testatrix and on the question of her intention. George v. it is obvious that the devise to Stanhope gave George, 186 Mass. 75, 71 N. E. 85; Lydon v. him an equitable fee in one-half of the land Campbell, 204 Mass. 580, 91 N. E. 151, 134 or of the proceeds, if under the power reAm. St. Rep. 702. While the covenant fur- served the testatrix converted the whole or ther provides, that with the approval of her any part into money. Southard v. Southard, counsel she could sell “any or all of said real 210 Mass. 347, 355, 96 N. E. 941; R. L. C. 135, estate," and the proceeds were to be held by $ 22. But as Frederick, who died testate a trust company "upon the trust to apply leaving a will duly admitted to probate the net income” to her use during her life, wherein the respondent Macomber is the sole "and upon her death to be held by the execu- beneficiary, never had any children, and Stan. tor named in her will upon the trust,” the hope survived him, the original petitioners, unmistakable object of the agreement is to children and sole heirs of Stanhope, contend, make certain that the property described that their father became entitled to the whole shall pass by some form of devise to the estate. And the trustees having transferred stepsons Stanhope C. Renwick and Frederick to Macomber the proceeds of a part of the W. Renwick, and to effectuate this purpose realty apparently converted by the testatrix, the second, third and fourth clauses of the and their final account showing the transwill read as follows:

fer, having been allowed without notice to Second. I give, devise and bequeath all the them, they ask to have the account reopened real estate which I now hold

to my and the trustees charged with this amount. executor hereinafter named upon the trust to divide the same into two equal parts, the value Parker y. Boston Safe Deposit & Trust Co., thereof to be fixed by him and to convey one of 186 Mass. 393, 71 N. E. 806. See R. L. c. 150, such parts to Stanhope C. Renwick, son of my $ 17, as amended by St. 1907, c. 438. deceased husband, or in case he shall not then be living to his children, share and share alike

[4] It is a settled rule of construction that per stirpes, subject to the fourth clause of this, for the ascertainment of the intention of the my will: and the other of such parts to hold, testator words, sentences, and clauses in the collect the rents, issues and profits and to apply will may be transposed, if by the transposithe same to the use of Frederick W. Renwick, another son of my said husband, during the term tion his purpose is found and given effect. of his natural life; and upon his death, if he Goddard v. Whitney, 140 Mass. 92, 98, 3 N. sball die, leaving child or children, to divide E. 30; Shattuck: v. Balcom, 170 Mass. 245, such part among such children, in equal shares. and apply such income thereof, to the use of 251, 49 N. E. 87: Thissell v. Schillinger, 186 such child or children respectively, and to con- Mass. 180, 185, 71 N. E. 300. The second and

114 N.E.-46

third clauses are to be read together, and / 29 N. E. 1151, 15 L. R. A. 447. See St. 1907, in the third clause after referring to what c. 447; Bartlett v. Slater, 211 Mass. 334, 97 has preceded in both clauses, the testatrix N. E. 991. The trustees manifestly could not says in conclusion, “It being my wish and in- be compelled to administer the trust or distention that the said real estate and pro- pose of the property except in accordance ceeds thereof shall after my death go to the with the will, and if they acted erroneously children of my said husband if living, and if when making a partial distribution, the peeither be dead without issue to the survivor titioners did not thereby acquire an indeof them, or with issue to such issue per pendent title to the remainder. Brooks y. stirpes and not per capita." No amplifica- Hope, 139 Mass. 351, 31 N. E. 728; Wood v. tion can add to the clarity of her fully ex- Bullard, 151 Mass. 324, 25 N. E. 67, 7 L R. pressed purpose. The will is in accordance A. 304; Dodge v. Lunt, 181 Mass. 320, 63 N. with her covenant, and she never intended E. 891. The decree of the court of probate that this portion of her estate should fall into dismissing the petitions should be affirmed. the residuary clause. It was to pass to the Ordered accordingly. children of her husband or to their issue as a class. The division if both survived is based on an intended equality of participation.

(225 Mass. 387) If Frederick predeceased her leaving no is.

BOLSTER v. CITY OF LAWRENCE. sue, Stanhope instead of one half was to have

(Supreme Judicial Court of Massachusetts. the whole of the property. If Frederick, who

Essex. Jan. 4, 1917.) has a preceding estate for life, survived her, 1. MUNICIPAL CORPORATIONS Om74542-LIAhe took a remainder subject to be divested

BILITY FOR TORTS-PERFORMANCE OF PUBif at his death he left a child or children. LIC FUNCTIONS. And having died without issue, the remain

In the absence of special statute, a municider, being part of his estate, passed to the officers and servants in connection with the

pality is not liable for the tortious acts of its devisee named in his will. Chauncey v. Sal. gratuitous performance of strictly public funcisbury, 181 Mass. 516, 63 N. E. 914; Cush- tions imposed or permitted by the Legislature, man v. Arnold, 185 Mass. 165, 169, 70 N. E. from which is derived no special corporate ad43, and cases cited; Smith v. Smith, 186 contribution from individuals particularly ben

vantage, .po pecuniary, profit, and no enforced Mass. 138, 71 N. E. 314; Gilkie v. Marsh, 186 efited. Mass. 336, 340, 341, 71 N. E. 703; Reed v. (Ed. Note.-For other cases, see Municipal Reed, 194 Mass. 216, 80 N. E. 219; Walton Corporations, Çent. Dig. 88 1568, 1569; Dec.

Dig. Om74542.] v. Draper, 206 Mass. 20, 23, 91 N. E. 884. [5] The record shows that the trustees, and 2. MUNICIPAL CORPORATIONS O74542-LIA

BILITY FOR TORTS-COMMERCIAL TRANSACStanhope during his life, and after his death the petitioners, all construed the will as A municipality is liable for the torts of its giving to Stanhope the property in dispute, servants, or agents in the conduct of functions and the unconverted real estate having been and commercial in character, or to protect its

voluntarily undertaken by it for its own profit, conveyed to the petitioners, they further con- corporate interests. tend that the respondents are bound by the (Ed. Note.-For other cases, see Municipal construction under which they acted. We Corporations, Cent. Dig. 88 1568, 1569; Dec. are unable to adopt this view. It is the prop

Dig. 74542.) erty of the testatrix which passes under the 3. MUNICIPAL CORPORATIONS 74542-LIAdevise.

BILITY FOR TORTS-ACTS OF AGENTS. [6] If before the will is finally proved the municipality for torts of its agent is whether

The test in determining the liability of a parties interested, but who are in controver- the act is for the common good of all without the sy over its provisions, enter into an agree- element of special corporate benefit, not whethment of compromise under R. L. C. 148, ss er it is undertaken voluntarily or under com

pulsion of statute. 15-17, which is approved by the court, the

(Ed. Note.-For other cases, see Municipal entire will nevertheless is admitted to pro Corporations, Cent. Dig. 88 1568, 1569; Dec. bate, although the division of the property Dig. Om 74542.] among the contracting parties depends upon 4. MUNICIPAL CORPORATIONS Om747(4)—LIAthe agreement, and not upon the will. Park BILITY FOR Toets-MAINTENANCE OF PUB

LIC BATHS. er v. New England Trust Co., 215 Mass. 226,

The maintenance by a city of free public 102 N. E. 427; Baxter v. Treasurer and Re-baths on a river bank under the authority of ceiver General, 209 Mass. 459, 462, 93 N. E. Rev. Laws, c. 25, $$ 20, 21, is for the benefit 854. And if a settlement is effected apart of the public as a whole, and the city is therefrom the statute either before or after proof, connection therewith, though the statute per.

fore not liable for negligence of its officers in the will still stands, while the parties are mits the city to make charges for the baths. relegated to their contractual rights which (Ed. Note.-For other cases, see Municipal can be enforced either at law for damages Corporations, Cent. Dig. &$ 1575, 1576; Dec. or in equity for specific performance. Bax- Dig. Cm747(4).] ter v. Treas. & Receiver General, 209 Mass. 5. MUNICIPAL CORPORATIONS C 747(4)-LIA459, 463, 95 N. E. 854; Brandeis v. Atkins,

BILITY FOR TORTS-CHARGES. 204 Mass. 471, 474, 90 N. E. 861, 26 L. R. A. charges for the use of its public baths from

The fact that a municipality makes small (N. S.) 230: Sumner v. Crane, 155 Mass. 483, which it derives a comparatively insignificant


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