due the estate of $10,626.51, which sum, to- | istrator of his father's estate, in which he gether with the $500, was the full consideration agreed to be paid by appellant for the conveyances. The master found the total value of all the lands of the estate to be $72,400. He found the rents collected by appellant for six years, less expenses of collection, amounted, with interest, to $22,082.06, and, deducting the value of the widow's dower from the land and her interest in the rents (one-third), appellee's interest in the lands, rents collected, and the personal estate left by his father amounted to $21,205.22. This was $7,954.42 more than his and Edna Taylor's indebtedness to the estate, plus the $500 cash received. The court by its decree approved and confirmed these findings of the master, and also approved and confirmed the finding and conclusion of the master that the deeds were obtained by appellant by false and fraudulent representations as to the value of John H. Taylor's estate, and the liability of appellee and Edna Taylor thereto. It is earnestly insisted by appellant that the value of the Illinois lands as found by the master and decreed by the court is higher than is warranted by the proof, and complaint is made that the highest value testified to by any witness was adopted in fixing the value of the home farm. Two witnesses for appellee testified the home farm was worth $140 per acre, two that it was worth $137.50, and one that it was worth $137. Two witnesses testified for appellant that the home farm was worth $105 per acre, and one that it was worth $100 per acre. The master found the value to be $140 per acre. One witness, who was engaged in the real estate business, and who resided in Wethersfield and was acquainted with the Wethersfield lots, testified they were worth $2,000 in 1903. Another witness on behalf of appellant, who was a farmer, but at the time of his testimony was employed as a motorman on a street car line, and who had been assessor of his township, placed the value of the Wethersfield property at $1,150. The master fixed its value at $2,000. As to all the rest of the lands the master fixed the value at a lower sum than was testified to by some of the witnesses of appellee, and higher than was testified to by some of the witnesses of appellant. There is abundant proof to support the values fixed by the master, and the fact that some witnesses placed a lower value on the lands, or some of them, than the master did, or that averaging the values from the testimony of all the witnesses on both sides would produce a lower value than that found by the master, as contended for by appellant, would not justify or authorize a reversal of the decree on the ground that it was not supported by the evidence as to the value of the real estate. represented he had paid out $192.82 more than he had received. In that report he stated the notes of Frank and Edna Taylor had been sued upon in the circuit court, judgment taken against Edna Taylor, who was personally served, and judgment in attachment taken against the interest of Frank J. | Taylor in the lands of John H. Taylor, deceased. This was more than two years after appellant had agreed to assume and pay said indebtedness. The amended bill, by way of supplement, alleged that since the commencement of the suit appellant had, as administrator of John H. Taylor's estate, brought two suits-one in the circuit court of Rock Island county and one in the circuit court of Henry county-upon notes of appellee to John H. Taylor, which were the same notes appellant agreed to pay, cancel, and return to appellee at the time the conveyances were made. In this report of appellant as administrator, introduced in evidence, which was filed in February, 1908, he states that all the notes owing the estate, except those of Frank and Edna Taylor and two other persons, had been collected; "that the notes of said Frank Taylor are now in litigation, and a suit pending to set aside a deed from said Frank Taylor to said administrator, and the notes of said Edna Taylor, are not collectible, as said administrator verily believes; that steps were taken some years ago to collect the notes of said Frank Taylor by a sale of his interest in the lands of said decedent, but that the widow of said deceased objected so strongly that the proceedings were suspended, and that their collection is further interfered with by the suit above mentioned, in which said suit the said widow is a party complainant." In April, 1906, about one month before the original bill in this case was filed, appellant We deem it unnecessary to extend this opinion by a further reference to or comment upon the facts. Independently of the wellknown rule that where a person who occupies a trust or fiduciary relation deals with the property in his care to his own advantage, as where he claims to have acquired it by purchase from the beneficiary, the burden is upon him, when the transaction is attacked for fraud, to prove he acted in good faith, and that the transaction was a just and equitable one and beneficial to the other party, we are unable to say, from a careful examination of the record, that the decree was not warranted by the facts. It is further insisted by appellant that the rents accruing after the death of John H. Taylor were not part of the estate, and did not pass by the assignment in the deed of “all interest in the estate of John H. Taylor, deceased," with full power to receive and receipt for the same. It is true, rents accruing after the death were not assets of the estate, but we think it clearly appears from the testimony and the acts and conduct deed was intended to, and the parties.understood it did, assign appellee's rights and interests in said rents. We find nothing in the record that would justify a reversal of the decree, and it is accordingly affirmed. Decree affirmed. (215 Mass. 552) CLARKE v. PIERCE. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 21, 1913.) 1. LIMITATION OF ACTIONS (§ 2*)-WHAT LAW GOVERNS. The question of what statutes of limitations apply is governed by the law of the forum. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 4-8; Dec. Dig. § 2.*] 2. SEALS (§ 1*)-SURPLUSAGE. If a seal is not required, or has no effect, it may be disregarded. [Ed. Note.-For other cases, see Seals, Cent. [Ed. Note.-For other cases, see Seals, Cent. Dig. 1; Dec. Dig. § 1.*] 3. LIMITATION OF ACTIONS (§ 22*)-EFFECT ON LIMITATIONS. While a negotiable promissory note need not be under seal, if the parties attach a seal thereto, it becomes a contract under seal, within Rev. Laws, c. 202, § 1, providing that actions on contracts under seal are limited to 20 years next after the cause of action accrued; the statute as to witnessed notes not affecting the question. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 100-111; Dec. Dig. § 22.*] Exceptions from Superior Court, Berkshire County. statute of limitations which is a matter of remedy and is governed by the law of the forum. Bulger v. Roche, 11 Pick. 36, 22 Am. Dec. 359. By the law of this state actions on contracts under seal are limited to 20 years next after the cause of action accrues. R. L. c. 202, § 1. In order to avoid the effect of this provision the defendant contends that the seal should be treated as surplusage, or if not, that the note still remains and is to be considered as a simple contract, in which case the action is limited to six years next after the cause of action accrues. R. L. c. 202, § 2. [2, 3] There is no doubt that where a seal is not required or where it has no effect it may be disregarded. Sherman v. Fitch, 98 Mass. 59; Blanchard v. Blackstone, 102 Mass. 343. A negotiable promissory note does not require a seal, but there is nothing in its character which prevents the parties from affixing a seal to it, if they choose to do so, and thereby rendering it effectual as a contract under seal. It is manifest that the parties intended the note in the present case to be under seal. It concludes: "Given under my hand and seal this 4th day of Dec., 1894." There is nothing in the statute which excludes a note under seal from its operation. cludes a note under seal from its operation. The provision in regard to witnessed notes has no bearing on the question whether a note under seal is a contract under seal with in the meaning of the statute. It relates to an entirely different kind of note and cannot be construed as excluding notes under seal from the operation of the 20-year limitation. If the effect of regarding the note as a contract under seal is to extend the period of lim Action by J. Brainard Clarke against Edgar H. Pierce, executor. Verdict for plain-itation from 6 years to 20, it cannot be said tiff, and defendant excepts. Exceptions over ruled. Noxon & Eisner, of Pittsfield, for plaintiff. Clarence P. Niles and Jos. W. Lewis, both of • Pittsfield, and Frederick M. Myers, of North Adams, for defendant. MORTON, J. This is an action to recover upon a promissory note payable to the plaintiff or order. The note is under seal. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the presiding judge to make certain rulings that were requested and to the charge so far as inconsistent with such rulings. that the seal is of no consequence and may therefore be disregarded. What effect, but for the statute, the seal would have had upon the negotiability of the note in this state it is not necessary to consider. That question was explicitly left open in Richards v. Barlow, 140 Mass. 218, 220, 6 N. E. 68. It is now expressly provided by statute that the validity and negotiability of an instrument shall not be affected by the fact, amongst others, that it bears a seal. R. L. c. 73, § 23, cl. 4. It had long been provided by statute in this state before the passage of the negotiable instruments law so called that a bond or other obligation under seal issued by a corporation and purporting to be payable to order or the bearer should be negotiable in the same manner and to the same extent as a promissory note (Pub. St. c. 77, § 4; Gen. St. c. 53, § 6; St. 1852, c. 76) and hence the question which has arisen in other jurisdictions as to the negotiability of such instruments has not come up for discussion here (Mercer County v. Hackett, 9 Wall. 83, 17 L. Ed. 548). It follows from what has been said that the note in suit must be regarded as a contract under seal within the meaning [1] The principal question relates to the of the provision in the statute of limitations The note was dated, "Chicago, Ill., Dec. 4, 1894," and there was evidence tending to show that it was signed, sealed and delivered by the maker to the plaintiff in Chicago on the day of its date. There was also evidence tending to show that William H. Clarke, the maker, died in Pittsfield January 26, 1911, and that he had been a resident of and a taxpayer in Pittsfield continuously since 1902. There was nothing to show what, if material, the law of Illinois was. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 346, 347; Dec. Dig. § 177.*] in regard to such contracts, and that the, a particular standard of scholarship, where action is not barred; and so is the weight opportunity is offered him to attend another of authority. Garner v. Toney, 107 Ala. 352, ments, is not an illegal exclusion within the statschool adapted to his ability and accomplish18 South. 161; Simpson v. Brown-Desnoyers ute. Shoe Co., 70 Ark. 598, 70 S. W. 305; Barnes v. Walker, 115 Ga. 108, 41 S. E. 243; Rawson v. Davidson, 49 Mich. 607, 14 N. W. 565; Munro v. Hill, 25 S. C. 476; Brown v. Jordhal, 32 Minn. 135, 19 N. W. 650, 50 Am. Rep. 560; Welfare v. Thompson, 83 N. C. 276; Biery v. Haines, 5 Whart. (Pa.) 563; 25 Cyc. 1035; Wood on Limitations, § 29; 1 Daniel on Negotiable Instruments (3d Ed.) 31, 32. The instrument was rightly declared on as a promissory note. 5. SCHOOLS AND SCHOOL DISTRICTS (§ 177*)ACTIONS FOR UNLAWFUL EXCLUSION-QUESTIONS FOR JURY. In an action against a town for unlawfully excluding a pupil from the high school of the town, where the jury found that he was excluded on the ground that he was delinquent in his studies, and the court had ruled that he was not excluded from the next lower grade of school, the jury had no power to determine whether in fact he was delinquent in his studies, thus revising The rulings requested were rightly refused. the conclusion of the school committee in this reExceptions overruled. 2. SCHOOLS AND SCHOOL DISTRICTS (§ 177*)— [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 346, 347; Dec. Dig. § 177.*] 3. SCHOOLS AND SCHOOL DISTRICTS (§ 171*)PUPILS RULES AND REGULATIONS. Under Rev. Laws, c. 42, § 27, giving school committees general charge and superintendence of all public schools, and chapter 44, § 3, providing that every child shall have the right to attend the public schools of the city or town in which his parent or guardian has a legal residence, subject to such reasonable regulations as to the numbers and qualifications of pupils to be admitted to the respective schools, and as to other school matters, as the school committee shall prescribe, the school committee has power to establish and maintain standards for the promotion of pupils from one grade to another, and for their continuance as members of any particular class, and so long as the committee acts in good faith their conduct in formulating and applying standards and making decisions touching this matter is not reviewable by any other tribunal, [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. § 342; Dec. Dig. § 171.*] spect, and the only question was whether the exclusion was an act of bad faith. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 346, 347; Dec. Dig. § 177.*] 6. SCHOOLS AND SCHOOL DISTRICTS (§ 177*)— ACTIONS FOR UNLAWFUL EXCLUSION-BURDEN OF PROOF. for the unlawful exclusion of a pupil from the In an action against a town for damages high school of the town, on the ground that he plaintiff to prove by evidence, and not merely by was delinquent in his studies, the burden was on surmise, conjecture, or speculation, that the school committee acted in bad faith. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 346, 347; Dec. Dig. § 177.*] 7. SCHOOLS AND SCHOOL DISTRICTS (§ 177*)EXCLUSION OF PUPIL-RIGHT TO HEARING. Under Rev. Laws, c. 44, § 8, providing that a school committee shall not permanently exclude a pupil from the public schools for alleged misconduct without his being given an opportunity to be heard, there is no right to a hearing when misconduct is not the ground of exclusion, and exclusion because of the pupil's failure to attain the standard of scholarship required for a particular school or grade is not an exclusion for misconduct. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 346, 347; Dec. Dig. § 177.*] Exceptions from Superior Court, Franklin County; Charles U. Bell, Judge. RUGG, C. J. This is an action of tort to recover damages (as alleged in his declaration) for wrongful exclusion of the plaintiff from the "public high school" of Shelburne. The court ruled that there was no evidence that the plaintiff might not have gone to a school of the ninth grade. This ruling appears to have been right and became the law of the case for the purposes of that trial. The evidence tended to show that the 4. SCHOOLS AND SCHOOL DISTRICTS (§ 177*)PUPILS UNLAWFUL EXCLUSION. The exclusion of a pupil from a particular plaintiff entered the high school in its freshschool or grade because of his failure to maintain | man class in the autumn of 1910, and that to the high school and not to the system of schools of the town. This follows from the ruling given by the judge to the effect that there was no evidence that the plaintiff could not have gone to another school. The trial appears to have followed the strict issue made by the pleadings, namely, whether the plaintiff was excluded illegally from the high school. The first part of answer of the from the first he fell below the required It must be understood that "public schools" standard of excellence in one or more branch-as used in these questions and answers refer es of instruction, information as to which was sent to his father once at least, and that in December written notice was given to his father that he could not longer continue in the high school, accompanied with a suggestion that the boy go to a Miss Johnstone, who was teacher of a ninth grade school in the same village, for the rest of the year, and with an expression of hope that he then would be able with this additional prepara-jury as to the cause of his exclusion follows tion to do the high school work. It was testified by the principal of the high school that the conduct of the boy had nothing to do with the letters written about his ability to keep up with his class. There is nothing in the record to control this evidence. It is plain from the reports of teachers as to his standing that he failed to attain a standard of 60 per cent. or was deficient in three branches, and the plaintiff himself testified that he thought this was so. the evidence. There is nothing in the evidence as reported to give color to a contention that he was excluded for any other reason than that his standing was not high enough. [3] The right of every child to attend the public schools is subject to such reasonable regulations as to qualifications of pupils to be admitted and retained in the respective schools as the school committee shall prescribe. R. L. c. 44, § 3. The school committee have general charge and superintendence over all public schools. R. L. c. 42, § 27. As was said by Knowlton, C. J., in Hammond v. Hyde Park, 195 Mass. 29, 30, 80 N. E. 650: "This power is broad and ample. For the promotion of the best interests of pupils and of all the people, it necessarily has been construed broadly by the court." and management of schools which is vested in the school committee includes the establishment and maintenance of standards for the promotion of pupils from one grade to another and for their continuance as mem The care [1] A rule adopted by the school committee was put in evidence to the effect that "pupils standing below 60 per cent. in two or more subjects shall be demoted one grade, and when such deficiency occurs in the freshman class the delinquent shall be dropped from the roll of the school." Apparently this merely was putting in more permanent form a standard previously adopted by the faculty of the school. It properly might apply to pending cases. The only ground of exclusion which finds any support in the reported evidence is deficiency in studies. After the December letter was sent, the plaintiff re-bers of any particular class. So long as the mained away from any school until the fol- school committee act in good faith their lowing March, when he presented himself at conduct in formulating and applying standthe high school and was refused admission ards and making decisions touching this matby the principal until he had seen the chair- ter is not subject to review by any other man of the school committee. He had an tribunal. It is obvious that efficiency of ininterview with the chairman, as to which struction depends in no small degree upon the plaintiff testified: "He wanted to know this feature of our school system. It is an if I had prepared myself further, and I told educational question, the final determination him I had not, and he told me I could not of which is vested by law in the public ofenter the school until I had further prepared ficers charged with the performance of that myself." On April 10th the father of the important duty. Although this precise point plaintiff applied in writing to the school never has been determined in this commoncommittee for a statement in writing of the wealth, it plainly follows, from the general reasons for the exclusion. According to the principles by which public schools are govtestimony of the father a reply to this ap-erned, and from numerous decisions in which plication was made, but it is not in the record. [2] Two questions were submitted to the jury which, with their answers, were as follows: (1) "Was the plaintiff excluded from the public schools of the town of Shelburne?" The jury answered: "He was." (2) "If the jury answer that he was excluded from the public schools, what was the grounds of such exclusion?" The jury answered: "His standing in the school not being high enough; such facts, however, in the minds of the jury not sustained by the the powers of the school committee to establish reasonable rules and regulations for the government, discipline and general management of the public schools under their charge have been stated with clearness and precision as applicable to a considerable variety of circumstances. Roberts v. Boston, 5 Cush. 198; Sherman v. Charleston, 8 Cush. 160; Spiller v. Woburn, 12 Allen, 127; Hodgkins v. Rockport, 105 Mass. 475; Russell v. Lynnfield, 116 Mass. 365; Watson v. Cambridge, 157 Mass. 561, 32 N. E. 864; Morrison v. Lawrence, 181 Mass. 127, 131, 63 N. E. 400; Alvord v. Chester, 180 Mass. 20, 61 N. E. 263; 2. TAXATION ($ 99*)-ASSESSMENT OF TAXESLIABILITY OF EXECUTORS. hands of a nonresident at the time of his death, Notes of their testator, which were in the and were delivered to an ancillary administrator in the foreign state, cannot be assessed had any control over them, under St. 1909, c. against the domiciliary executors, who never 490, pt. 1, § 23, cl. 7, providing that the personal property of deceased persons shall be assessed to the executor or administrator for three years, or until it has been distributed and notice of distribution has been given the assessors; for notice of the appointment of the ancillary administrator was all the aid the domiciliary executors could give the assessors, as the without their consent or knowledge, and hence administrator could distribute the proceeds they do not fall within the statute, which was passed to prevent the escape of property from taxation. [4-6] When the real ground for exclusion | the administrator being accountable only to the from a particular school or grade is failure court of the state wherein he was appointed. to maintain a proper standard of scholarship [Ed. Note.-For other cases, see Taxation, and there is opportunity afforded to the pu- Cent. Dig. § 199; Dec. Dig. § 99.*] pil to attend another school adapted to his ability and accomplishments, there is no illegal exclusion from school within the meaning of the statute. It would seem from the latter part of the answer of the jury to the second question that the trial proceeded upon the theory that the jury had power to pass upon the inquiry whether in fact the plaintiff was delinquent in his studies and thus revise the conclusion of the school committee in this respect. But that was a matter plainly outside their province. When it had been ruled that there had been no exclusion of the plaintiff from the next lower grade of school, then the only possible issue was whether the exclusion of the plaintiff from the High School was an act of bad faith by the school committee. The burden of proving that as an affirmative proposition rested upon the plaintiff. It required support by evidence and could not be left wholly to surmise, conjecture or speculation. The record is bare of any evidence tending to show the existence of bad faith on the part of the school committee. [7] It has been argued that, because the school committee did not grant a hearing to the father upon his request, the exclusion was illegal, and reliance is placed upon Bishop v. Rowley, 165 Mass. 460, 43 N. E. 191, Morrison v. Lawrence, 186 Mass. 456, 72 N. E. 91, and Jones v. Fitchburg, 211 Mass. 66, 97 N. E. 612. These cases have no application. When the real ground of exclusion is not misconduct there is no obligation on the part of the school committee to grant a hearing. R. L. c. 44, §§ 7, 8. Failure to attain to a given standard of excellence in studies is not misconduct in itself. The reason for this distinction in the statute is obvious. Misconduct is a very different matter from failure to attain a standard of excellence in studies. A determination as to the fact involves investigation of a quite different kind. A public hearing may be regarded as helpful to the ascertainment of misconduct and useless or harmful in finding out the truth as to scholarship. Exceptions sustained. (215 Mass. 598) GRAY et al. v. INHABITANTS OF LENOX. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 22, 1913.) 1. TAXATION (§ 99*)-PROPERTY SUBJECT TO ASSESSMENT. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 199; Dec. Dig. § 99.*] County; Richard W. Irwin, Judge, Petition by John C. Gray and others, as executors, against the Inhabitants of Lenox for abatement of a tax. On report. Tax ordered abated. Hibbard & Hibbard, of Pittsfield, and Ropes, Gray & Gorham, of Boston, for complainants. Geo. A. Mole, of Lenox, and Fred R. Shaw, of Adams, for defendant. DE COURCY, J. The sole question involved in this case is whether the petitioners, as executors of the will of Grace M. Kuhn, late of Lenox, were taxable in 1910 on certain notes made by residents of Pennsylvania and secured by mortgages of land in Philadelphia. At the death of Mrs. Kuhn in October, 1908, these notes were owned by her, and were in Pennsylvania in the possession of W. B. Rawle, her agent. On June 15, 1909, Francis W. Rawle, a resident of Pennsylvania, was appointed ancillary administrator in that state of the estate of Mrs. Kuhn; and on or about that date the notes and mortgages were turned over to him by the said W. B. Rawle. All payments on the notes were made to the ancillary administrator from that time until his final account was allowed and an order of distribution was made by the orphans' court for Philadelphia on November 10, 1910. [1] The respondent contends that the notes in question were taxable here to the petitioners as personal property of inhabitants of the commonwealth. St. 1909, c. 490, pt. 1, Resident executors cannot be taxed upon § 2. It is clear from the agreed facts, hownotes in the possession of an ancillary adminis- ever, that the Massachusetts executors had trator in a foreign state, where the property no legal or equitable title to the property on came into his hands by virtue of his appoint- April 1, 1910, the date fixed for the assessment, and the local executors could not compelment of taxes. St. 1909, c. 440, §§ 1, 9. him either to transmit the property to them or ment of taxes. St. 1909, c. 440, §§ 1, 9. At to distribute the proceeds among the legatees; that time the notes were in the possession |
