study of the chapter indicates that it is law which governs the construction of a dealing primarily with the will of a person dealing with his own property. It is to be noted also that technically there is a difference between a devise or legacy and a gift in the form of a testamentary appointment under a power. "The theoretical distinction is, that a will concerns the estate of the testator, and an appointment under a power that of the donor of the power." W. Allen, J., in Osgood v. Bliss, 141 Mass. 474, 477, 6 N. E. 527, 530 (55 Am. Rep. 488). If therefore our attention be confined to the statute alone, it would seem as if it could have no office in the interpretation of the clause in question. deed. It must be in all respects a deed, and be treated in all respects as a deed; so, that, if there were a power to appoint a freehold estate by deed, and a person exercising the power simply appointed it to A. B., without the necessary words of limitation superadded, A. B. would take for life only. If, on the other hand, the power were exercised by will, and assuming for this purpose the power to have been created after the passing of the Wills Act, then the appointment in the same words would give the fee simple." And in Osgood v. Bliss, 141 Mass. 474, 477, 6 N. E. 527, 530 (55 Am. Rep. 488), this court in the same line of thought says that "the difference between the execution of a power by will and by deed is, that the former must be by an instrument allowed in the probate court as executed in the manner of a will, and which is to be construed by the rules applicable to the construction of wills, and such an appointment is always revocable; the latter must be by an instrument under seal, and may be irrevocable." In the present case the power was of the broadest and most general nature. The ap But there is something else to be considered. A power may be to appoint by deed or will, either or both, according to the terms of the instrument creating the power. If the appointment is to be by deed, then the instrument must be signed, sealed and delivered like a deed, and when it is so executed and delivered the appointment is made and is irrevocable. If the appointment is to be by will, then the instrument must be executed in the manner prescribed by law for the execution 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 anyinstrument 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 appointment of property under a trust deed. And it is settled that where a person has a general power of appointment, either by deed or by will, and executes the power, the property appointed is deemed in equity a part of his assets, and subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees. Clapp v. Ingraham, 126 Mass. 200; Olney v. Balch, 154 Mass. 318, 28 N. E. 258. How shall the language of the document be construed? On this subject the following illuminating words are used by Jessel, M. R., in Freme v. Clement, L. R. 18 Ch. 499, 504: "A power of appointment is a power of disposition given to a person over property not his own by some one who directs the mode in which that power shall be exercised by a particular instrument. I consider that the donor of the power must mean it to be exercised according to the law governing that particular instrument. If, therefore, it is a power to be exercised by deed or will, in my opinion it must be exercised, if by deed, by an instrument executed in the mode in which the law requires a deed to be executed, that is, sealed and delivered; and it The donee of a power to be exercised by will must be regarded as the testator pro hac vice. Indeed, when the power is created by deed and is to be executed by will, the donee is the only person who performs any testamentary act. It can make no difference as to the nature of the power or the re pointee whether the power be created by deed or by will. The appointor then is the testator; he is the person who makes the will; he, in the absence of anything in the will to the contrary, and not the donor of the power is the person whose relationship to the appointee is to be considered wherever by statute or otherwise relationship between the person giving and the person receiving by will is material. And this is not all. The donee of a power to be exercised by will is ipso facto authorized to use the language of a will, and he is to be understood as using that language in the same way in which testamentary language is used. Shortly stated, his authority is to act as a testator and to speak as a testator, and his words are to be interpreted as those of a testator. (215 Mass. 140) RAYMOND SYNDICATE v. AMERICAN (Supreme Judicial Court of Massachusetts. a "green horse," which it had owned three days, Evidence that defendant sent out through a busy city street, in charge of a competent driver, and that the horse shied at the sound of the first electric car and broke a plate glass window, is sufficient to take to the jury the question of defendant's negligence. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. § 706.*] Exceptions from Superior Court, Suffolk County; Charles W. Bell, Judge. Action by the Raymond Syndicate against the American Express Company. Verdict for plaintiff. Defendant brings exceptions. Exceptions overruled. Clarence F. Eldredge and Harold Caverly, both of Boston, for plaintiff. Austin M. Pinkham, of Boston, for defendant. Notwithstanding the technical difference between a testamentary gift of one's own property and a testamentary gift in the exercise of a power of appointment, we are of opinion that the terms devise and legacy as used in R. L. c. 135, § 21, are broad enough 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 gen-ed by the negligence of the defendant. The eral power, and of the nature of a will and the general rules of law for its construction, and of the various considerations hereinbefore mentioned, the statute should be so construed. Under this construction in the present case, Mrs. Cooke being the testatrix and the legatee named in the article in question being her brother, the legacy does not lapse but goes to her brother's children. Such is the result not of the statute alone, nor of the power alone, but of both combined. undisputed facts showed that the defendant sent a "green horse," which it had owned three days, through one of the busiest parts of Boston in charge of a competent driver without any knowledge or making any effort to ascertain whether the horse was used to the sounds and sights of a great city. At the sound of the first electric car the horse shied and broke a plate glass window of the plaintiff. The question of the defendant's negligence rightly was submitted to the jury. The jury as men of common experience might have inferred that a green horse was one understood to be fresh from the country Shaw, 171 Mass. 410, 50 N. E. 1033, and simi- and entirely unwonted to the distracting conlar cases, where it is held that the donor of ditions of Boston streets, and that the rea power rather than the donee must be responsible agents of the defendant knew this. garded as the decedent whose estate is liable to taxation under St. 1891, c. 425, the act imposing a tax upon collateral legacies and successions. We do not regard this result as in any way inconsistent with that reached in Emmons v. Upon the general principles of law involved, see in addition to cases hereinbefore cited, Sewall v. Wilmer, 132 Mass. 131; Blagge v. Miles, 1 Story, 427; Griffith v. Gale, 12 Simons, 327, 354; Eccles v. Cheyne, 2 Jay & Johnson, 676; Freme v. Clement, L. R. 18 Ch. 499; Holyland v. Lewin, L. R. 26 Ch. D. 266; Lyndall's Estate, 2 Pa. Dist. R. 476; Isham v. New York Ass'n for Poor, 177 N. Y. 218, 69 N. E. 367. It becomes unnecessary to consider the other questions submitted. In accordance with this opinion there is to be a decree in favor of the four respondents, the children of William R. Huntington, the legatee named in the thirteenth clause of Mrs. Cooke's will. So ordered. To take out such a horse for its first journey under the circumstances here disclosed might have been found to have been wanting in due care. Exceptions overruled. (215 Mass. 68) COHEN v. BERKOWITZ et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.) 1. COURTS (§ 190*) - MUNICIPAL COURTS APPELLATE DIVISION-PROCEDURE-RULES. Under St. 1912, c. 649, creating an appellate division of the municipal court of Boston, and empowering the court to make rules, and a court rule, providing that petitions for the establishment of the truth of reports shall be determined by the appellate division, or other judge or judges assigned ed on finally by the appellate division, or oththerefor, the truth of the report must be passer judge or judges asigned therefor; and Rev. 2. COURTS ( 190*)-INFERIOR COURTS-AP PEAL-RECORD. The opinion of the appellate division of the municipal court of Boston is not a part of the record on appeal, authorized by St. 1912, c. 649. Laws, c. 173, § 110, providing for the estab- [1] The defendant filed 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 aggrievDig. 103.] ed party, made an amended report. There is a faint intimation that the defendant may have agreed to the amended report. But thereafter he filed a petition to the justices of the appellate division of the municipal court asking that the truth of his exceptions taken before the single judge be established. There is nothing to indicate when this was filed. Chapter 649 makes no definite provision touching the proof of the truth of reports disallowed by the judge before whom the case is tried; but section 8 contains this language: "The court shall make rules regulating the procedure * * for the prep [Ed. Note.-For other cases, see Courts, Dec. Dig. & 190;* Appeal and Error, Cent. Dig. 103.] 3. COURTS (§ 190*)-INFERIOR COURTS-APPEAL-RECORD. The record on appeal, under St. 1912, c. 649, creating an appellate division of the municipal court of Boston, and authorizing appeals therefrom, should show the dates of filing of the several papers. [Ed. Note.-For other cases, see Courts, Dee. Dig. & 190;* Appeal and Error, Cent. Dig. § 103.] ** aration and submission of reports, 4. COURTS ($ 190*)-INFERIOR COURTS-AP-authority, the judges of the municipal court PEAL-RECORD. The action of the appellate division of the municipal court of Boston, in rendering judgment for defendant on the finding, ordered on a petition for the establishment of the truth of exceptions taken before a single justice, is in substance a dismissal of the report, within St. 1912, c. 649, § 8, authorizing the appellate division to reverse, vacate, or modify the ruling complained of, or dismiss the report. [Ed. Note.-For other cases, see Courts, Dec. Dig. & 190;* Appeal and Error, Cent. Dig. § 103.] have adopted certain rules, "E" of which relates to the establishment of reports. The substance of this rule is that petitions for the establishment of the truth of reports shall be determined by the appellate division, or other judge or judges assigned therefor. This rule means, in conjunction with the statute, that the truth of the report shall be passed upon finally and only in this way. The provisions of Rev. Laws, c. 173, § 110, for the establishment of exceptions taken in the superior or Supreme Judicial Court by this court sitting in banc are inapplicable to this procedure. This is in accord with the main and salutary purpose of the act, which is to expedite and make as inexpensive as is reasonably possible the final determination of questions of law arising in causes heard in the municipal court of the city of Boston. It is irregular, therefore, to print, as has been done in this case, the petition for the establishment of the truth of the 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. 5. COURTS ( 190*)-INFERIOR COURTS-APPEAL-QUESTIONS REVIEWABLE. St. 1912, c. 649, creating an appellate division of the municipal court of Boston, and authorizing an appeal from the final decision of the appellate division for the determination of questions, a finding of the municipal court on conflicting evidence will not be reviewed, and the refusal to make a contrary finding of fact will not be disturbed on appeal. [EJ. Note. For other cases, see Courts, Dec. Dig. & 190;* Appeal and Error, Cent. Dig. § 103.] Suit by Louis Cohen against Samuel Berkowitz and the United States Trust Company. From a judgment of dismissal, rendered by the Appellate Division of the Municipal Court of Boston, plaintiff appeals. Affirmed. M. H. Steuer, of Roxbury, for appellant. John F. Sullivan, of Boston, for appellees. RUGG, C. J. This is the first case which has come before us under the provisions of St. 1912, c. 649. The purpose of this act is to provide a more expeditious determination of cases in the municipal court of the city of Boston, and a decision by appeal directly to this court on questions of law there raised. One or two matters of practice lie at the threshhold. [2] Upon the argument of the case before the appellate division, the judges filed what is termed "Opinion and Final Order," a copy of which is printed in the record. Such opinicn is no part of the record. It has been decided many times that a decision or memo randum by a judge of the superior court, or 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 v. Johnson, 213 Mass. 251, 100 N. E. 369; Regal v. Lyon, 212 Mass. 231, 98 N. E. 698. The same principle applies to the proceedings under this chapter. While such an opinion may serve a useful purpose, and be valuable to the parties, it is no part of the record upon which the case is to be argued in this court. [3, 4] A further matter of detail as to the (215 Mass. 89) SPEAR v. HARDON et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 24, 1913.) 1. COURTS (§ 190*)-MUNICIPAL COURTS-APPEAL-RECORD. form of the papers is that the record shows ance with the determination of the trial [5] The case upon the merits may be disposed of briefly. Whether the draft of the plaintiff or the amended report signed by the judge be accepted as true makes no difference with the result. No error is disclosed. It is an action of tort for conversion of stoves placed in buildings. The title to the stoves remained in the plaintiff, although they were sold to one Greenbaum upon a conditional contract of sale. The defendant, by virtue of a mortgage, took possession for breach of condition, of the real estate upon which were the stoves and sold it under the power of sale. The trial court found that the defendant had not refused to allow the plaintiff to take possession of the stoves or remove them from the premises, and had exercised no act of dominion over them, and that the plaintiff assented to the auction sale of the premises, and at such auction it was publicly announced that the stoves were not included in the sale and were included in an omnibus exception from the memorandum of sale. It cannot be said that these findings of fact were not warranted. Assuming the statements in the draft report to be true, there was a conflict of evidence touching these points, and the court found for the defendant. Under these circumstances it is plain that no error of law was committed in refusing to rule as requested by the plaintiff's first prayer that he was entitled to recover. His fifth request, to the effect that "the acts of the defendant in refusing to allow the plaintiff to remove the property was in law a conversion, and made the defendant liable for the full value of the property," plainly could not have been given in view of the facts found by the court. It is not a request for a ruling of law, but for a finding of fact. The sixth request was based also upon an assump tion of facts, which is contrary to the finding of the court. Judgment affirmed. 649, from a decision of the appellate division The record on appeal, under St. 1912, c. of the municipal court of Boston, should set forth the decision of the appellate division in the form in which it is entered, attested by the where no question of practice is raised, only clerk, or signed by the judges, and filed; and the report, the decision, and the appeal need be printed, showing the dates of filing of each, with an attestation by the clerk, but, if any question of practice be raised, enough of the record must be printed to show the point pre [Ed. Note.-For other cases, see Courts, Dec. Dig. & 190;* Appeal and Error, Cent. Dig. 103.] 2. EVIDENCE (8 441*)-PAROL EVIDENCEVARYING TERMS OF WRITTEN LEASE. In an action for rent due under a written lease stipulating for a monthly rental of lease the landlord proposed to let the prem$45, evidence that before the execution of the ises as they then stood at a monthly rental of $42, and for the increased rental provided he built an addition, which had not been done, was properly excluded; the parol agreement being available only as a foundation for a separate or cross action. Cent. Dig. & 1719, 1723-1763, 1765-1845, [Ed. Note.-For other cases, see Evidence, 2030-2047; Dec. Dig. § 441.*] Appeal from Appellate Division of Municipal Court of Boston. Action by Minnie E. Spear against Chester F. Hardon and the International Trust Company, as trustee. From a judgment of the Appellate Division of the Municipal Court of Boston for plaintiff, defendants appeal. Affirmed. George H. Elwell, of Boston, for appellant Hardon. Charles T. Cottrell and Albert Garceau, both of Boston, for appellee. the appellate division of the municipal court RUGG, C. J. [1] This is an appeal from of the city of Boston under St. 1912, c. 649. A word needs to be said as to the form in which the case comes before us. There is in the record an unsigned recital entitled "(Memo)" setting out the history of the case and the action of the appellate division. There is no judgment signed by the judges nor indorsement by the clerk that it is by order of the court. The decision of the appellate division should be set forth in the form in which it is entered. Under the statute that court "may reverse, vacate or modify" the ruling complained of "or order a new trial in whole or in part" or "dismiss the report." The practice of other courts indicates as the procedure an order by the court for the entry of the decision, attested by the clerk, or instead the decision may be signed by the judges and filed. As is pointed out in Cohen v. Berkowitz, 102 N. E. 124, an opinion (if one is written) which is a state ment of the reasons for the decision, is no part of the record, and should not be printed. When no question of practice is raised, only the report, the decision of the appellate division and the appeal to this court need be printed showing the dates of filing or allowance of each, with an attestation by the clerk. If any question of practice is raised, enough of the record of the municipal court should be printed to show clearly the point presented. [2] This is an action of contract to recover installments of rent due under a written lease. The defendant and the plaintiff executed the lease, and the defendant entered into possession of the premises, but left before the expiration of the term. The defendant offered to prove that, before the execution of the lease, the plaintiff proposed to let the premises described in the lease "as they then stood at a monthly rental of $42, and for the monthly rental of $45, which was named in the lease, she then agreed to build a veranda," and had not done so. The question of law presented is, whether this evidence was excluded rightly. This precise point was decided adversely to the contention of the defendant in Brigham v. Rogers, 17 Mass. 571, where it was held that an oral agreement that there should be a sufficiency of good water upon the demised premises. made before the execution of a written lease, was merged in the bargain which the parties later reduced to writing. The distinction was pointed out between an independent agreement and one which was a part of the agreement subsequently put in the form of a lease. This decision was approved in Durkin v. Cobleigh, 156 Mass. 108-110, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436. Graffam v. Pierce, 143 Mass. 386, 9 N. E. 819, on which the defendant relies, was there cited and distinguished. It is not always easy to decide on the facts arising in different cases between an independent agreement, for breach of which action will lie, and one which is a part of that embodied in the written contract, and hence not admissible in evidence. The case at bar is not open to serious doubt, and is governed by the cases cited. See, also, Edison Electric Illuminating Co. v. Gibby Foundry Co., 194 Mass. 258, 80 N. E. 479. When such independent agreement may be shown, breach of it is not available as a defense at law or in equity, but as foundation for a separate or cross action. Judgment affirmed. (215 Mass. 150) the alteration of a highway, regard shall be had to all damage done the owner, whether by the benefits accruing to such property, the taking or injury, and there shall be deducted value of the benefits is not a matter of defense, but an element of the measure of damages; and it is within the discretion of the trial court to refuse to permit the petitioner, who had introduced no evidence as to benefits in her case in chief, to introduce such evidence in reply. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. § 540; Dec. Dig. § 200;* Trial, Cent. Dig. §§ 151-153; Dec. Dig. § 63.*] Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge. Petition by Edith G. Mitchell against the City of Boston for the assessment of damages. On exceptions to the refusal of the superior court to admit certain evidence. Exceptions overruled. Herbert R. Morse and Wm. M. Noble, both of Boston, for petitioner. Geo. A. Flynn, of Boston, for respondent. RUGG, C. J. This is a petition for the assessment of damages caused to real estate of the petitioner by the widening, reconstruction and raising of the grade of a public way. No betterments were assessed. The language of the governing statute (R. L. c. 48, § 15) is: "In estimating the damage to property of a person by the laying out, relocation, alteration or discontinuance of a highway, or by an order for specific repairs, regard shall be had to all the damages done to him, whether by taking his property or by injuring it in any manner and there shall be deducted, the benefit accruing to such property thereby." The petitioner in putting in her case introduced no expert evidence as to the difference in the market value of her property before and after the street changes, but offered evidence tending to show the most reasonable method of correcting the injury to her estate caused by the elevation in the grade of the street, and evidence as to the diminution of the market value of her property arising from the acts of the defendant, and rested. The evidence of the defendant tended to show that the petitioner's estate had been benefited in some aspects by its acts in the premises, and that the net result of the particular benefits set off against the injury was that the estate was as valuable as it was before the acts complained of. The petitioner in reply sought to introduce evidence bearing upon the benefit to her estate. Her exception to the refusal of the superior court to admit this evidence brings the case here. Her contention is that benefit is a defense and hence open to contradiction by way of reply. This position is not sound. The damage to which a petitioner is entitled in cases of this sort is a sum of money which will compensate her and make her as rich as, but not richer than, she was before the act of changing the OF street. An estimate of such compensatory MITCHELL v. CITY OF BOSTON. EMINENT DOMAIN (§ 200*)-TRIAL (§ 63*)- 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 |