fied, the stove was properly disconnected and | sary to consider the third and fourth requests the water shut off, and that the damage was caused by water leaking in over the windows, through the roof, and from a tank in the third floor.

The plaintiff's first count is for use and occupation during the months of November, December and January. The second count is for damages on account of the breach of the implied covenant to use the premises in a tenantlike and proper manner. The court found for the plaintiff on the first count in the sum of $35-the rent for the month of November. The plaintiff appealed.

[1] It is not disputed that the notification of October 2 was insufficient in failing to give the plaintiff a full month's notice of the termination of the tenancy, and in awarding judgment for the plaintiff in the sum of $35 (the amount of the rent for the month of November) the court must have found that the informality in the notice was not waived so as "to release the defendant from his tenancy at the expiration of the rental month of October." Even if the judge was wrong in granting the second request of the defendant, in view of his findings of fact the plaintiff was not harmed by this ruling; neither was she injured by the first ruling given at the request of the defendant. See Boston Supply Co. v. Rubin, 214 Mass. 217, 220, 101 N. E. 133; Bailey v. Marden, 193 Mass. 277, 79 N. E. 257.

[2] The plaintiff in her seventh request asked, "On all the evidence, there was no acceptance by the plaintiff of a surrender of the premises." The record shows, "The court refused to grant the seventh ruling requested

of the defendant, in view of the findings made. Bailey v. Marden, supra; Cohen v. Berkowitz, 215 Mass. 68, 102 N. E. 124.

[3] The third, eleventh, twelfth and thirteenth requests of the plaintiff refer to the second count of the declaration and were properly refused. The judge could have found that the damage to the house was not caused by the acts of the defendant nor by the manner in which the pipes were disconnected, and that the defendant was not responsible therefor. Finding such facts, as he did, he could not have given the third request. Wyche v. Uebelhoer, 223 Mass. 353, 111 N. E. 847.

[4, 5] While a tenant at will impliedly agrees to use the premises in a tenantlike manner, he is not liable for a mere omission or failure to act. He is liable for voluntary, but not for permissive waste. Daniels v. Pond, 21 Pick. 367, 32 Am. Dec. 269; Lothrop v. Thayer, 138 Mass. 466, 475, 52 Am. Rep. 286; Chalmers v. Smith, 152 Mass. 561, 26 N. E. 95, 11 L. R. A. 769. The eleventh, twelfth and thirteenth requests, therefore, were hardly accurate, taking into account this rule of law. But even if they were true statements the plaintiff was not prejudiced thereby, because the judge gave the fourteenth request, which correctly stated the law and included all that plaintiff could fairly ask on this branch of the case. also disposes of the eighteenth request. Order dismissing the report affirmed.

TRUSTS

This

(225 Mass. 345)

MORSE et al. v. O'BRIEN.

Judicial Court of Massachusetts. Suffolk. Dec. 15, 1916.) 274(2)-ADMINISTRATION-APPORTIONMENT OF EXPENSE OF REBUILDING. Where trustees rebuilt an out-of-date building of the trust, and, so far as the remaindertransaction, the sale of securities and other men were concerned, nothing was lost by the property to pay for the work increasing the value of the building and constituting merely a change of investment, but the income of the life tenants was reduced by the loss of rents and of dividends on securities sold by the trustees to raise money for the reconstruction, tees properly charged to capital, and credited though the rebuilding increased rents, the trusto income, the amount of rents lost, to reimburse the life tenants partially for the loss of rents and dividends, since life tenants and remaindermen should share such expense equally, and, when the respective benefits cannot be ac curately determined, the question must be left largely to the sound discretion of the trustees. [Ed. Note.-For other cases, see Trusts, Cent. Dig. 390; Dec. Dig. 274(2).]

* as to the months of December, et sequentia." Considering the conversation of (Supreme the parties shortly after the notice was received by the plaintiff; her letter of November 2, when the keys were received, in which she said she would use them in securing a tenant "as she understood he had abandoned the premises," although she would continue to hold him for the rent; the circumstances connected with the repairs, the time they were made, the fact that they extended to parts of the premises not damaged by water; the occupation of the second floor apartment during the month of December; examining the entire evidence, we think the judge could have found that the plaintiff fully accepted the abandonment and surrender of the estate, that the plaintiff's acts of control and occupation were inconsistent with the relation of landlord and tenant, and that the tenancy was finally terminated at the end of November. Talbot v. Whipple, 14 Allen, 177; Amory v. Kannoffsky, 117 Mass. 351, 19 Am, Rep. 416. There was no error of law, therefore, in the manner in which the plaintiff's seventh request was dealt with, nor in the modification made to the first and second requests of the plaintiff. Neither is it neces

Case Reserved from Supreme Judicial Court, Suffolk County.

Accounting by Robert M. Morse and another, trustees, against James J. O'Brien, guardian ad litem. From a decree of the probate court disallowing an item in the account, the trustees appeal. On reservation

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

Loring, Coolidge & Noble, of Boston, for appellants. Jas. J. O'Brien, of Boston, pro se.

CARROLL, J.

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 adjustment between the parties in interest and for this purpose to ascertain the cost of the completed structure, the trustees included as part of the expense the loss of rents while the work was in progress. This loss, made necessary by the rebuilding, was in our opinion a part of the expenses, and might properly be considered in determining the entire cost of the work. Boles v. Boston, 136 Mass. 398; Warren v. Pazolt, 203 Mass. 328, 89 N. E. 381. See Williams v. Boston, 190 Mass. 541, 551, 77 N. E. 509. The only reasonable inference from the agreed statement of facts is that this loss was the net rents which the life tenants would have received but for the reconstruction.

This is an appeal from a decree of the probate court disallowing an item of $1,691.45 in the account of the trustees under the will of Benjamin Adams. This item was charged to capital and credited to income, to reimburse the life tenants for the loss of rentals during the remodeling of the building 5-23 Doane street, Boston. The trust included the residue of the personal and real estate. In 1909, the personal property was appraised at $122,504.82, invested in dividend-paying securities, and the real estate at $366,600, including the premises numbered 5-23 Doane street, valued at $106,000.

So far as the remaindermen were conThe building on Doane street was built in The sale of the securities and other propcerned, nothing was lost by the transaction. the 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 exdermen. The work of remodeling began cept indirectly through the rents. late in the summer of 1909 and was complet-wards v. Edwards, 183 Mass. 581, 67 N. E See Eded 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.

life tenants and remaindermen are to share equally the expense; and when the respective benefits cannot be accurately determined, it is difficult to decide precisely what share of the expenses should be paid by each. In such a case, it is apparent that the question must be left largely to the sound discretion of those whose duty it is to manage the estate for the best interest of all the beneficiaries. In Jordan v. Jordan, 192 Mass. 337, 343, 78 N. E. 459, 460, where changes and improvements were made in a building and the division of the expenses by the trustees between capital and income was questioned, Braley, J., said:

shows that the "trustees were under a duty In proportion to the benefits received the to rebuild this building and that the cost of such rebuilding was properly charged to the principal of the trust fund," and "if it is within the powers of trustees to * * thus include in the cost of the remodeling the sum objected to, that these trustees acted in entire good faith in making such apportionment," but the guardian ad litem contends that they did not use "the proper rule of apportionment." "During the alteration, tenants then in the building had to be turned out, and the amount of rental that would have been received from these tenants if they had remained in occupation, amounted to the sum of $1,691.45, which amount was equal to four per cent. on the value of the rented space vacated." The dividends paid on the securities sold by the trustees between the dates of sale and the completion of the alterations amounted to a total of $432.50. The rents have increased since the building was remodeled.

"In the management of such property details of administration must be left very largely to the sound discretion of those entrusted by the testator with its development as a source of revenue, and, these disbursements having been found justifiable, the apportionment by the trustees so far as it is now in dispute does not appear to have been erroneous."

Although the improvements were a permanent 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 reconstruction the sum objected to, in making the

the remaindermen. As the trustees acted in good faith and the rule of apportionment

equitable, the apportionment as made by them should stand.

The decree of the probate court is to be modified by allowing the item of $1,691.45, and so modified is affirmed.

So ordered.

(225 Mass. 217)

SEDERQUIST v. BROWN et al.

This is a petition for the registration of a title to land under R. L. c. 128, and acts in amendment thereof which is the so-called Torrens system. The general purpose of that statute is to empower the land court to determine the actual state of the title to the land described in the petition, and not to clear the land of encumbrances manifestly existing of record. It is required by section

(Supreme Judicial Court of Massachusetts. Suf- 39 that the decree of registration shall con

folk. Nov. 29, 1916.)

tain a description of the land and
"shall set forth the estate of the owner and also,
in such manner as to show their relative priority,
all particular estates, mortgages, easements,
liens, attachments and other encumbrances
* * to which the land or the owner's estate
is subject."

Plainly a special attachment such as was made by the defendant created a lien or attachment upon the land. The jurisdiction

RECORDS 9(5) - REGISTRATION OF TITLES LAND COURT JURISDICTION-STATUTE. Rev. Laws, c. 128, and acts in amendment thereof, create the land court, and provide for the registration of titles to land. Section 39 provides that the decree of registration shall describe the land, set forth the estate of the owner, and all estates, liens, etc., in manner of their relative priority, to which the land or owner's estate is subject. St. 1904, c. 448, gives the land 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, §§ 1, 47, and than to declare the true state of the title. chapter 167, §§ 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. finally to be sustained.

[Ed. Note. For other cases, see Records, Dec. Dig. 9(5).]

Report from Land Court, Suffolk County. Petition for registration of title to land by Maud Y. Sederquist against Ernest L. Brown, and others. On report from the land court. Decree for petitioner in accordance with order of land court.

Starr Pasons, H. Ashley Bowen, and Chas. D. C. Moore, all of Lynn, for petitioner. Innes & Turtle and Fredk. W. Mowatt, all of Boston, for respondent Brown.

RUGG, C. J. The title to the parcel of land described in this petition for registration was acquired by the petitioner in 1907. Thereafter the respondent, as the plaintiff in an action of contract brought against James W. Sederquist, the husband of the petitioner, attached specially all the right, title, and interest of the said James W. in and to the premises in question, the record title thereto standing in the name of the petitioner. This attachment is still outstanding and the action in which it was made is pending. At the trial in the land court the petitioner offered to show that at the time of this special attachment the defendant in that action had no right, title or interest in said premises, and asked for a decree registering the title in her free from the attachment, álleging that because of the attachment she is unable to sell the property.

Jurisdic

tion to declare the real state of the title
does not extend to the trial of all actions up-
order to decide the ultimate fact whether the
on which attachments have been made, in
attachment is a just lien on the land, which
ought finally to be sustained.
448, does not stretch to a case like that at
bar. See, also, McArthur v. Hood Rubber
Co., 221 Mass. 372-374, 109 N. E. 162, and
Morris v. Small (C. C.) 160 Fed. 142.

St. 1904, c.

The provisions of the statutes relative to such special attachments as encumber the petitioner's land are minute and extensive. R. L. c. 178, §§ 1, 47; chapter 167, §§ 38, 63, 64. They cover the field. These provisions would become inoperative in whole or in substantial part if the land court should be held to have jurisdiction on a petition for registration of title to try the validity of such an attachment. It is not consistent with ordinary canons of statute interpretation to hold that such unusual powers have been conferred by implication.

It is not necessary to determine whether the petitioner has any other remedy for the wrong of which she complains, nor whether the constitutional guaranty of article 11 of the Bill of Rights has been adequately provided by the existing statutes. It is enough to say that the present proceeding cannot be maintained. Pursuant to the terms of the report let the entry be

Decree for petitioner in accordance with order of land court.

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

an order sustaining a demurrer to the bill, plaintiffs appeal, and defendants Woodward appeal from an order denying their motion that the clerk be required to issue an execution forthwith against plaintiff for costs. Affirmed on plaintiffs' appeal, and defendants' appeal dismissed.

Fred E. Crawford, of Boston, for appellants. Adams & Blinn and Amos L. Taylor, 117(2)-AUTHOR- all of Boston, for appellees.

[Ed. Note.-For other cases, see Frauds, Stat- ers the second parcel of the lots conveyed ute of, Cent. Dig. § 329; Dec. Dig. 138(3).] to Smith. February 19, 1907, the grantee 7. COSTS 280-ENFORCEMENT-ISSUANCE OF EXECUTION-REFUSAL of Clerk-Remedy. The proper procedure and remedy of defendants to obtain redress upon improper refusal of the clerk to issue execution for costs on dismissal of the bill was not by motion that the clerk be ordered to forthwith issue execution against plaintiffs.

The prayers are, first, "That the respondent | Am. St. Rep. 499; Hill v. Hill, 196 Mass. 509, [Fuller] be directed to write in the name of 82 N. E. 690.

November 2, 1914, an order was entered forthwith against the plaintiff. Assuming sustaining the demurrer.

PIERCE, J. [1] The conclusion of fact and ruling of law, that a public highway called the Old New Boston road, created by prescription, from about 1790 to 1893 ran across the locus sought to be registered and thence across the Whittaker lot, which adjoins the locus on the west, into Locust street at its junction with Hill street, was fully warranted by the evidentiary facts, that it had been "used by the public for over one hundred years for all purposes for which a public road would be used in such a district"; that

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