study of the chapter indicates that it is law which governs the construction of a dealing primarily with the will of a person deed. It must be in all respects a deed, dealing with his own property. It is to be and be treated in all respects as a deed; noted also that technically there is a differ- so, that, if there were a power to appoint a ence between a devise or legacy and a gift freehold estate by deed, and a person exercisin the form of a testamentary appointment ing the power simply appointed it to A, B., under a power. "The theoretical distinction without the necessary words of limitation is, that a will concerns the estate of the superadded, A. B. would take for life only. testator, and an appointment under a power If, on the other hand, the power were exerthat of the donor of the power.” W. Allen, cised by will, and assuming for this purpose J., in Osgood v. Bliss, 141 Mass. 474, 477, 6 the power to have been created after the N. E. 527, 530 (55 Am. Rep. 488). If there passing of the Wills Act, then the appointfore our attention be confined to the statute ment in the same words would give the fee alone, it would seem as if it could have no simple.” And in Osgood v. Bliss, 141 Mass. office in the interpretation of the clause in 474, 477, 6 N. E. 527, 530 (55 Am. Rep. 488), question.

this court in the same line of thought says But there is something else to be consider that “the difference between the execution ed. A power may be to appoint by deed or of a power by will and by deed is, that the will, either or both, according to the terms former must be by an instrument allowed in of the instrument creating the power.

If the probate court as executed in the manthe appointment is to be by deed, then the ner of a will, and which is to be construed instrument must be signed, sealed and deliv- by the rules applicable to the construction of ered like a deed, and when it is so executed wills, and such an appointment is always revand delivered the appointment is made and ocable; the latter must be by an instrument is irrevocable. If the appointment is to be under seal, and may be irrevocable.” by will, then the instrument must be execut- In the present case the power was of the ed in the manner prescribed by law for the broadest and most general nature. The apexecution of wills. And even when it is ex- pointment might be made to any kind of ecuted it is not irrevocable. The document, legatee and for any lawful object. With the like a will, is ambulatory during the life of exception of a difference in the application the appointor and may be at any time re- of the rule against perpetuities founded upon voked in whole or in part by him. Even aft- the fact that the property to be given was to er the death of the appointor the document come from her husband and not from her exto be effectual must be allowed by the pro- cept as the appointor, the testatrix, had the bate court as the will of the appointor. In same power of testamentary disposition over other words, when the appointment is to be it as over her own. In a long line of cases made by will, the legal inference is that so beginning with Amory v. Meredith, 7 Allen, far at least as respects the execution of the 397, it is held that, in the absence of any. instrument and its final establishment as the thing in the will to show a contrary intenwill of the appointor, the rules of law pre- tion, such a general power is well executed scribing the manner of the execution and by a general residuary clause even where probate of a will shall apply. Osgood v. there is no mention of the power in the will. Bliss, ubi supra, 141 Mass. 477, 6 N. E. 527, See Stone v. Forbes, 189 Mass. 163, 75 N. E. 55 Am. Rep. 488; Heath v. Withington, 6 | 141, and cases cited. In Fiske v. Fiske, 173 Cush. 497, and cases cited. And this is so Mass. 413, 53 N. E. 916, it was held that a even if the document in which the appoint- widow who waived under our statute the ment is made is void as a will of a married provisions of her husband's will in her favor woman as to her own property named there could not avail herself of a provision for in. Heath v. Withington, supra.

her in the will which operated as an apHow shall the language of the document pointment of property under a trust deed. be construed ? On this subject the following And it is settled that where a person has illuminating words are used by Jessel, M. R., a general power of appointment, either by in Freme v. Clement, L. R. 18 Ch. 499, 504: deed or by will, and executes the power, the “A power of appointment is a power of dis- property appointed is deemed in equity a position given to a person over property not part of his assets, and subject to the demands his own by some one who directs the mode of his creditors in preference to the claims in which that power shall be exercised by a of his voluntary appointees or legatees. particular instrument. I consider that the Clapp v. Ingraham, 126 Mass. 200; Olney v.

; . donor of the power must mean it to be exer- Balch, 154 Mass. 318, 28 N. E. 258. cised according to the law governing that The donee of a power to be exercised by particular instrument. If, therefore, it is a will must be regarded as the testator pro power to be exercised by deed or will, in my hac vice. Indeed, when the power is created

. opinion it must be exercised, if by deed, by by deed and is to be executed by will, the an instrument executed in the mode in donee is the only person who performs any which the law requires a deed to be execut-testamentary act. It can make no differed, that is, sealed and delivered; and itence as to the nature of the power or the remust also, when executed, be subject to the lation sustained by the appointor to the ap

a

pointee whether the power be created by

(215 Mass. 140) deed or by will. The appointor then is the RAYMOND SYNDICATE V. AMERICAN testator; he is the person who makes the

EXPRESS CO. will; he, in the absence of anything in the (Supreme Judicial Court of Massachusetts. will to the contrary, and not the donor of

Suffolk. May 24, 1913.) the power is the person whose relationship MUNICIPAL CORPORATIONS ($ 706*)—USE OF to the appointee is to be considered wherever STREET--INJURY FROM “GREEN HORSE.” by statute or otherwise relationship between “green horse,” which it had owned three days,

Evidence that defendant sent out the person giving and the person receiving through a busy city street, in charge of a by will is material.

competent driver, and that the horse shied at And this is not all. The donee of a power the sound of the first electric car and broke to be exercised by will is ipso facto author- | the jury the question of defendant's negli

a plate glass window, is sufficient to take to ized to use the language of a will, and he is

gence. to be understood as using that language in [Ed. Note. For other cases, see Municipal the same way in which testamentary lan- Corporations, Cent. Dig. $ 1518; Dec. Dig. g guage is used. Shortly stated, his authority 706.*] is to act as a testator and to speak as a tes- Exceptions from Superior Court, Suffolk tator, and his words are to be interpreted as County; Charles W. Bell, Judge. those of a testator.

Action by the Raymond Syndicate against Notwithstanding the technical difference the American Express Company. Verdict for between a testamentary gift of one's own plaintiff. Defendant brings exceptions. Exproperty and a testamentary gift in the ex- ceptions overruled. ercise of a power of appointment, we are of

Clarence F. Eldredge and Harold Caverly, opinion that the terms devise and legacy as both of Boston, for plaintiff. Austin M. used in R. L. C. 135, $ 21, are broad enough Pinkham, of Boston, for defendant. to include any testamentary gift, and that in view of the relation sustained by the donee

RUGG, C. J. This is an action of tort to of a general power to be exercised by will to

recover damages alleged to have been causthe property which is the subject of the gened by the negligence of the defendant. The eral power, and of the nature of a will and undisputed facts showed that the defendant the general rules of law for its construction, sent a “green horse,” which it had owned and of the various considerations hereinbe- three days, through one of the busiest parts fore mentioned, the statute should be so con

of Boston in charge of a competent driver strued. Under this construction in the present to ascertain whether the horse was used to

without any knowledge or making any effort case, Mrs. Cooke being the testatrix and the the sounds and sights of a great city. At legatee named in the article in question be- the sound of the first electric car the horse ing her brother, the legacy does not lapse shied and broke a plate glass window of the but goes to her brother's children. Such is

plaintiff. The question of the defendant's the result not of the statute alone, nor of the

negligence rightly was submitted to the power alone, but of both combined.

jury. The jury as men of common experience We do not regard this result as in any way might have inferred that a green horse was inconsistent with that reached in Emmons v. Shaw, 171 Mass. 410, 50 N. E. 1033, and simi- one understood to be fresh from the country lar cases, where it is held that the donor of ditions of Boston streets, and that the re

and entirely unwonted to the distracting cona power rather than the donee must be responsible agents of the defendant knew this. garded as the decedent whose estate is liable To take out such a horse for its first journey to taxation under St. 1891, c. 425, the act under the circumstances here disclosed might imposing a tax upon collateral legacies and

have been found to have been wanting in due successions.

care. Upon the general principles of law in

Exceptions overruled. volved, see in addition to cases hereinbefore cited, Sewall v. Wilmer, 132 Mass. 131; Blagge V. Miles, 1 Story, 427; Griffith V.

(215 Mass. 68) Gale, 12 Simons, 327, 354; Eccles v. Cheyne,

COHEN V. BERKOWITZ et al. 2 Jay & Johnson, 676; Freme v. Clement, L. (Supreme Judicial Court of Massachusetts. R. 18 Ch. 499; Holyland v. Lewin, L. R. 26

Suffolk. May 24, 1913.) Ch. D. 266; Lyndall's Estate, 2 Pa. Dist. R. 1. COURTS ($ 190*) – MUNICIPAL COURTS 476; Isham v. New York Ass'n for Poor, 177

APPELLATE DIVISION-PROCEDURE-RULES. N. Y. 218, 69 N. E. 367.

Under St. 1912, c. 649, creating an apIt becomes unnecessary to consider the pellate division of the municipal court of other questions submitted.

Boston, and empowering the court to make In accordance

rules, and a court rule, providing that petiwith this opinion there is to be a decree in tions for the establishment of the truth of favor of the four respondents, the children reports shall be determined by the appellate of William R. Huntington, the legatee named division, or other judge or judges assigned in the thirteenth clause of Mrs. Cooke's will. ed on finally by the appellate division, or oth

therefor', the truth of the report must be passSo ordered.

er judge or judges asigned therefor; and Rev.

Laws, c. 173, § 110, providing for the estab- [1] The defendant fled a draft report in lishment of exceptions taken in the superior the municipal court. Afterwards, the judge or Supreme Judicial Court, is inapplicable.

before whom the case was tried, without [Ed. Note. For other cases, see Courts, Dec. Dig. $ 190;* Appeal and Error, Cent passing upon the report filed by the aggrierDig. § 103.)

ed party, made an amended report. There 2. COURTS ($ 190*)—INFERIOR COURTS-AP- is a faint intimation that the defendant may PEAL-RECORD.

have agreed to the amended report. But The opinion of the_appellate division of thereafter he filed a petition to the justices the municipal court of Boston is not a part of the appellate division of the municipal of the record on appeal, authorized by St. court asking that the truth of his exceptions 1912, c. 649.

, [Ed. Note. For other cases, see Courts, taken before the single judge be established. Dec. Dig. 190;* Appeal and Error, Cent. There is nothing to indicate when this was Dig. § 103.)

filed. Chapter 649 makes no definite provi3. COURTS ($ 190*) INFERIOR COURTS-AP- sion touching the proof of the truth of rePEAL-RECORD.

ports disallowed by the judge before whom

, . 649, creating an appellate division of the the case is tried; but section 8 contains this municipal court of Boston, and authorizing language: "The court shall make rules reguappeals therefrom, should show the dates of lating the procedure

* for the prepfiling of the several papers.

aration and submission of reports, [Ed. Note.-For other cases, see Courts, Dee. Dig. $ 190;* Appeal and Error, Cent. conformable to the facts.” Pursuant to this Dig. § 103.] 4. COURTS (8 190*) INFERIOR COURTS-AP- authority, the judges of the municipal court PEAL-RECORD.

have adopted certain rules, "E" of which reThe action of the appellate division of lates to the establishment of reports. The the municipal court of Boston, in rendering substance of this rule is that petitions for judgment for defendant on the finding, ordered on a petition for the establishment of the the establishment of the truth of reports truth of exceptions taken before a single jus shall be determined by the appellate divitice, is in substance a dismissal of the report, sion, or other judge or judges assigned therewithin St. 1912, c. 649, § 8, authorizing the

for. This rule means, in conjunction with appellate division to reverse, vacate, or modify the ruling complained of, or dismiss the the statute, that the truth of the report report.

shall be passed upon finally and only in this [Ed. Note. For other cases, see Courts, way. The provisions of Rev. Laws, c. 173, Dec. Dig. $190;* Appeal and Error, Cent. $ 110, for the establishment of exceptions Dig. § 103.)

taken in the superior or Supreme Judicial 5. COURTS (8 190*)-INFERIOR COURTS-AP- Court by this court sitting in banc are inapPEAL-QUESTIONS REVIEWABLE.

St. 1912, c. 649, creating an appellate di- plicable to this procedure. This is in accord vision of the municipal court of Boston, and with the main and salutary purpose of the act, authorizing an appeal from the final decision which is to expedite and make as inexpenof the appellate division for the determination sive as is reasonably possible the final deterof questions, a finding of the municipal court on conflicting evidence will not be reviewed, mination of questions of law arising in causes and the refusal to make a contrary finding of heard in the municipal court of the city of fact will not be disturbed on appeal.

Boston. It is irregular, therefore, to print, [EJ. Note. For other cases, see Courts,

see Courts, as has been done in this case, the petition Dec. Dig. $190;* Appeal and Error, Cent. for the establishment of the truth of the Dig. § 103.)

report originally filed by the defendant. Its Appeal from Appellate Division of Mu- truth or falsity can be determined in the nicipal Court of Boston.

municipal court alone. Suit by Louis Cohen against Samuel Ber- [2] Upon the argument of the case before kowitz and the United States Trust Com- the appellate division, the judges filed what pany. From a judgment of dismissal, ren- is termed “Opinion and Final Order,” a copy dered by the Appellate Division of the Mu- of which is printed in the record. Such opinnicipal Court of Boston, plaintiff appeals.icn is no part of the record. It has been deAffirmed.

cided many times that a decision or memoM. H. Steuer, of Roxbury, for appellant. randum by a judge of the superior court, or

, John F. Sullivan, of Boston, for appellees. a single justice of this court, in an action

of law, is no part of the record. Cressey v.

Cressey, 213 Mass. 191, 99 N. E. 972; Given RUGG, C. J. This is the first case which v. Johnson, 213 Mass. 251, 100 N. E. 369; has come before us under the provisions Regal v. Lyon, 212 Mass. 231, 98 N. E. 698. of St. 1912, c. 649. The purpose of this act The same principle applies to the proceedings is to provide a more expeditious determina- under this chapter. While such an opinion tion of cases in the municipal court of the may serve a useful purpose, and be valuable city of Boston, and a decision by appeal di- to the parties, it is no part of the record rectly to this court on questions of law there upon which the case is to be argued in this raised. One or two matters of practice lie court. at the thresh hold.

[3, 4] A further matter of detail as to the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

form of the papers is that the record shows

(215 Mass. 89) no dates of filing of the several papers. The

SPEAR V. HARDON et al. record presented to this court should show (Supreme Judicial Court of Massachusetts. the dates upon which the material papers

Suffolk. May 24, 1913.)

. have been filed. The record also shows in 1. COURTS ($ 190*)-MUNICIPAL COURTS-APthis case that the decision of the appellate PEAL-RECORD. division was: “Judgment for the defendant 649. from a decision of the appellate division

The record on appeal, under St. 1912, c. upon the finding ordered." Section 8 of the of the municipal court of Boston, should set act provides that, “if the appellate division forth the decision of the appellaté division in shall decide that there has been prejudicial the form in which it is entered, attested by the error in the ruling complained of, it may re- where no question of practice is raised, only

clerk, or signed by the judges, and filed ; and verse, vacate or modify the same or order a the report, the decision, and the appeal need new trial in whole or part; otherwise it be printed, showing the dates of filing of each, shall dismiss the report.” The action of the question of practice be raised, enough of the

" , appellate division, although not following the record must be printed to show the point prewords of the statute, was in substance a dis- sented. missal of the report. From that would fol- [Ed. Note.-For other cases, see Courts, low the entry of final judgment in accord- Dec. Dig: $ 190;* Appeal and Error, Cent!

Dig. § 103.) ance with the determination of the trial

2. EVIDENCE ($ 441*)-PAROL

($ 441*)-PAROL EVIDENCEjudge.

VARYING TERMS OF WRITTEN LEASE. [5] The case upon the merits may be dis- In an action for rent due under a writposed of briefly. Whether the draft of the ten lease stipulating for a monthly rental of plaintiff or the amended report signed by lease the landlord proposed to let the prem

$45, evidence that before the execution of the the judge be accepted as true makes no dif- ises as they then stood at a monthly rental of ference with the result. No error is dis- $42, and for the increased rental provided he closed. It is an action of tort for conver

built an addition, which had not been done,

was properly excluded; the parol agreement sion of stoves placed in buildings. The title being available only as a foundation for a septo the stoves remained in the plaintiff, al- arate or cross_action. though they were sold to one Greenbaum up-Cent. Dig. $ 1719, 1723-1763, 1765–1845,

[Ed. Note. For other cases, see Evidence, on a conditional contract of sale. The de- 2030-2047; Dec. Dig. § 441.*] fendant, by virtue of a mortgage, took pos

Appeal from Appellate Division of Municisession

for breach of condition, of the real pal Court of Boston. estate upon which were the stoves and sold

Action by Minnie E. Spear against Chester it under the power of sale. The trial court F. Hardon and the International Trust Comfound that the defendant had not refused to

pany, as trustee. From a judgment of the allow the plaintiff to take possession of the Appellate Division of the Municipal Court of stoves or remove them from the premises, Boston for plaintiff, defendants appeal. Afand had exercised no act of dominion over firmed. them, and that the plaintiff assented to the

George H. Elwell, of Boston, for appellant auction sale of the premises, and at such auction it was publicly announced that the Hardon. Charles T. Cottrell and Albert Garstoves were not included in the sale and ceau, both of Boston, for appellee. were included in an omnibus exception from the memorandum of sale. It cannot be said the appellate division of the municipal court

RUGG, C. J. [1] This is an appeal from that these findings of fact were not war of the city of Boston under St. 1912, c. 649.

c ranted. Assuming the statements in the A word needs to be said as to the form in draft report to be true, there was a con

which the case comes before us. There is in flict of evidence touching these points, and the record

an unsigned recital entitled the court found for the defendant. Under

“(Memo)" setting out the history of the case these circumstances it is plain that no error and the action of the appellate division. of law was committed in refusing to rule as There is no judgment signed by the judges requested by the plaintiff's first prayer that nor indorsement by the clerk that it is by he was entitled to recover. His fifth request, order of the court.

order of the court. The decision of the apto the effect that "the 'acts of the defend-pellate division should be set forth in the ant in refusing to allow the plaintiff to re- form in which it is entered. Under the statmove the property was in law a conversion, ute that court "may reverse, vacate or modi

“ ard made the defendant liable for the full fy” the ruling complained of “or order a value of the property," plainly could not new trial in whole or in part" or "dismiss have been given in view of the facts found the report." The practice of other courts inby the court. It is not a request for a ruling dicates as the procedure an order by the of law, but for a finding of fact. The sixth court for the entry of the decision, attested request was based also upon an assump- by the clerk, or instead the decision may be tion of facts, which is contrary to the find- signed by the judges and filed. As is pointed ing of the court.

out in Cohen v. Berkowitz, 102 N. E. 124, an Judgment affirmed.

opinion (if one is written) which is a state

.

ment of the reasons for the decision, is no | the alteration of a highway, regard shall be part of the record, and should not be printed. had to all damage done the owner, whether by When no question of practice is raised, only the benefits accruing to such property, the

taking or injury, and there shall be deducted the report, the decision of the appellate di- value of the benefits is not a matter of defense, vision and the appeal to this court need be but an element of the measure of damages ; printed showing the dates of filing or allow- and it is within the discretion of the trial court ance of each, with an attestation by the troduced no evidence as to benefits in her case

to refuse to permit the petitioner, who had inclerk. If any question of practice is raised, in chief, to introduce such evidence in reply. enough of the record of the municipal court [Ed. Note.-For other cases, see Eminent Doshould be printed to show clearly the point main, Cent. Dig. § 540; Dec. Dig. 8 200;* presented.

Trial, Cent. Dig. $8° 151–153; Dec. Dig. 8 63.*] [2] This is an action of contract to recover

Exceptions from Superior Court, Suffolk installments of rent due under a written County; William Cushing Wait, Judge. lease. The defendant and the plaintiff exe

Petition by Edith G. Mitchell against the cuted the lease, and the defendant entered in- City of Boston for the assessment of damages. to possession of the premises, but left before On exceptions to the refusal of the superior the expiration of the term. The defendant court to admit certain evidence. Exceptions offered to prove that, before the execution of overruled. the lease, the plaintiff proposed to let the Herbert R. Morse and Wm. M. Noble, both premises described in the lease “as they then of Boston, for petitioner. . Geo. A. Flynn, of stood at a monthly rental of $42, and for the Boston, for respondent. monthly rental of $45, which was named in the lease, she then agreed to build a veran

RUGG, O. J. This is a petition for the da," and had not done so. The question of assessment of damages caused to real estate law presented is, whether this evidence was of the petitioner by the widening, reconstrucexcluded rightly. This precise point was de- tion and raising of the grade of a public way. cided adversely to the contention of the de- No betterments were assessed. The language fendant in Brigham v. Rogers, 17 Mass. 571, of the governing statute (R. L. c. 48, § 15) where it was held that an oral agreement is: “In estimating the damage to property of that there should be a sufficiency of good wa- a person by the laying out, relocation, altera

, ter upon the demised premises, made before tion or discontinuance of a highway, or by the execution of a written lease, was merged an order for specific repairs, regard shall be in the bargain which the parties later reduc- had to all the damages done to him, whether ed to writing. The distinction was pointed by taking his property or by injuring it in out between an independent agreement and any manner and there shall be deducted the one which was a part of the agreement sub- benefit accruing to such property thereby.” sequently put in the form of a lease. This The petitioner in putting in her case introdecision was approved in Durkin v. Cobleigh, duced no expert evidence as to the difference 156 Mass. 108-110, 30 N. E. 474, 17 L. R. A. in the market value of her property before 270, 32 Am. St. Rep. 436. Graffam v. Pierce, and after the street changes, but offered evi143 Mass. 386, 9 N. E. 819, on which the dence tending to show the most reasonable defendant relies, was there cited and distin- method of correcting the injury to her estate guished. It is not always easy to decide on

caused by the elevation in the grade of the the facts arising in different cases between street, and evidence as to the diminution of an independent agreement, for breach of the market value of her property arising from which action will lie, and one which is a the acts of the defendant, and rested. part of that embodied in the written con

The evidence of the defendant tended to tract, and hence not admissible in evidence. show that the petitioner's estate had been The case at bar is not open to serious doubt, benefited in some aspects by its acts in the and is governed by the cases cited. See, also, premises, and that the net result of the parEdison Electric Illuminating Co. v. Gibby ticular benefits set off against the injury was Foundry Co., 194 Mass. 258, 80 N. E. 479. that the estate was as valuable as it was beWhen such independent agreement may before the acts complained of. The petitioner shown, breach of it is not available as a in reply sought to introduce evidence bearing defense at law or in equity, but as founda- upon the benefit to her estate. Her exception tion for a separate or cross action.

to the refusal of the superior court to admit Judgment affirmed.

this evidence brings the case here. Her contention is that benefit is a defense and hence

open to contradiction by way of reply. This (215 Mass. 150)

position is not sound. The damage to which MITCHELL v. CITY OF BOSTON.

a petitioner is entitled in cases of this sort (Supreme Judicial Court of Massachusetts. is a sum of money which will compensate Suffolk, May 24, 1913.)

her and make her as rich as, but not richer EMINENT DOMAIN ($ 200*)-TRIAL (8 63*)-than, she was before the act of changing the ASSESSING COMPENSATION BURDEN OF street. An estimate of such compensatory PROOF-BENEFITS.

Under Rev. Laws, c. 48, § 15, providing sum can be made ordinarily only by finding that, in estimating the damage to property by the difference in the value of the estate