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of its accounts with Park Square Automobile Station showed a large balance in its favor and that there was no such claim against it Jas is now asserted, Park Square Automobile Station is estopped from now asserting the claim."

heard the witnesses must stand unless they
are plainly wrong. Dickinson v. Todd, 172
Mass. 183, 51 N. E. 976; Adams v. Protective
Union Co., 210 Mass. 172, 96 N. E. 74.
after an examination of the voluminous rec-
ord, giving due weight to the great advan-
tage possessed by the judge for forming opin-
ions as to the credibility of witnesses and
discovering the truth, we cannot say that he
was clearly wrong. In the first place the
words of the written contract, if doubtful,
will be most strongly construed against the
defendant, which prepared it under the di-
rection of its general counsel. 9 Cyc. 590,
and cases cited. The word "automobile" or-
dinarily includes taxicabs; and when the de-
fendant clearly intended to except them they
expressly said so, as in the agreement with
the plaintiff for 1910. Although the Ameri-
can Locomotive Automobile Company had not
manufactured and sold taxicabs prior to the
date of this contract, January 1, 1908, there
was evidence that it then had plans under
consideration and had made experiments
with a view to such business; that in the
fall of 1907 Whitney rode in one at the de-
fendant's factory; that then or early in 1908
it had put into the hands of the Westcott
Express Company in New York two cabs to
test out; that a sale of cabs was made to
the Seaich Company in February, 1908, and
to one Cummings in the fall of that year. It
further appeared that it was experimenting
on taxicabs in 1907, some months before per-
fecting them; and that these cabs did not
differ, except in a few particulars, from the
town cars which had been manufactured and
sold by it for some years prior to January,

1908. In view of these facts and other evi

In the memorandum the judge states: "The fourth request is refused because I find that Whitney as manager of the plaintiff company' frequently requested of Joyce, the manager of the defendant company, payment of commissions on taxicabs so sold in 1908 while the contract of January 1, 1908, was in force, and that the manager of the defendant. company had no reason to believe that said commissions had ever been waived or abandoned. The fifth request is refused because I find that the manager of the defendant company had knowledge (notwithstanding the statement of accounts between the plaintiff and the defendant company annexed to the agreement of September 1, 1910) of the claim of the plaintiff company for commissions on taxicabs, which claim the defendant company, acting by its manager had no reason to believe had ever been waived or abandoned." These findings of fact are decisive against the defendant's contention, unless they are plainly wrong. And we cannot say that they are as the findings are warranted by the testimony, especially that of Whitney,

if believed.

"I

sider the third finding of the judge: “I find In this connection it is important to conthat the Park Square Auto Station was not that the Park Square Auto Station was not a party to the agreement dated September 1, 1910, and that the claims sought to be revirtue of said agreement and that the Park covered in this suit were not assigned by Square Auto Station never had ratified or adopted said agreement." That instrument was executed only by the Dayton Motor Car Company and Courier Car Company, called the Ohio Companies, and the American Loco

dence in support of the plaintiff's contention on this issue, notwithstanding the evidence of the defendant to the contrary, we cannot say that the judge was plainly wrong in finding that the parties did intend to in-motive Company. At that time the Ohio clude taxicabs in the agreement.

[5] The defendant next contends that the plaintiff is precluded from maintaining this action by the agreement of September 1, 1910, operating as an estoppel or amounting to an account stated. Rand v. Wright, 129 Mass. 50. It sought to get the benefit of these two defenses by the following requests for rulings:

Companies had become the owners of all the shares of the plaintiff Park Square Auto Station, and it does not appear that they had any knowledge of the taxicab transactions that might bind the corporation. The instrument itself does not purport to be an account stated, and while it fixes definitely the liabilities of the plaintiff it contains no statement of the amount or character of its assets.

"4. If the officers of the Park Square Automobile Station, with knowledge of the fact [6] As to the defenses of waiver and laches that various taxicabs had been sold in the the judge made the following findings: summer and fall of 1908, agreed on Septem- "7. I believe that, while it was contemplatber 1, 1910, that the claim of American Loco-ed by the parties that taxicabs were included motive Company against Park Square Auto- in the word 'automobiles,' the manager of the mobile Station amounted to a certain figure defendant company did not expect to be calland that the assets of said Auto Station in- ed upon to pay said commissions, but believcluded no claim against American Locomo- ed, in view of the cordial and friendly relative Company, the plaintiff is not now en- tions which existed between himself and titled to recover. Whitney, the manager of the plaintiff com"5. If American Locomotive Company exe-pany, that the latter would be induced to cuted the agreement of September 1, 1910, waive said commissions and not insist upon

"9. While the evidence is conflicting and to the plaintiff a commission of 20 per the question is not free from difficulty, I find that neither the Park Square Auto Station nor its agents or officers ever waived its right to such commissions, or expressly or impliedly agreed to waive the right to receive said commissions, although no attempt was made to collect the same prior to the bringing of this suit.

cent. on the list price. And as to taxicabs, the defendant's manager Joyce testified that when one was sold to an individual customer at the list price the agent would get the commission even under the later agency contracts that excluded commercial cabs. We cannot say, then, that the judge was wrong in adopting as the measure of the plaintiff's damages the usual commission on the list price of the taxicabs that were sold by the defendant, in violation of the contract.

"10. In view of the friendly relations of the parties and all the evidence in the case I find that the plaintiff company has not been guilty of laches in the enforcement of As to the number of taxicabs so sold, there its claim against the defendant company." seems to be no dispute that ten were bought We cannot say that these are wrong. They by the Armstrong Transfer Company in Separe supported by the testimony of Whitney tember, 1908. We find no evidence, however, as to his talks with Mr. Vandyke, who was at warrants a finding of the sale of more the defendant's assistant sales manager, than 41 cabs to the Taxi Service Company with Mr. Hobby, its assistant treasurer, and during the period covered by the plaintiff's especially with Mr. Joyce, the defendant's 1908 contract. The agreement of that commanager, and by that of the plaintiff's book-pany, dated August 11, 1908, did not constikeeper, Miss Stearns. It would serve no tute a sale of taxicabs and did not oblige it useful purpose to cite this testimony at length.

[7] It remains to consider the question of damages. The sales in question were made in violation of the contract between the parties, which not only made the plaintiff exclusive agent for the territory where they were made, but by its express provisions prohibited the defendant from selling its automobiles within that territory. Garfield v. Peerless Motor Car Co., 189 Mass. 395, 75 N. E. 695. The defendant in fact has made these sales, and is now precluded from raising the question whether the plaintiff, who introduced both of these customers, could have made the sales to them if the defendant had not done so. As between the plaintiff and defendant the price of the cabs was expressly fixed at $3,350 each, except when some special arrangement was agreed upon, as was done when six taxicabs were sold to Cummings; and the defendant could not lawfully as against the plaintiff sell below that list price and thereby destroy the plaintiff's market. As the defendant saw fit to make these prohibited sales at a reduced price on its own responsibility, it must do so at its own expense, and cannot arbitrarily impose the consequence upon the plaintiff. It fairly could be inferred that the parties contemplated, as the measure of damages for a breach caused by the defendant's wrongful sale in the plaintiff's exclusive territory, the amount that the plaintiff would receive if the sale had been made by it. This standard was fixed by the contract itself, as a commission or discount of 20 per cent. of the list price. Marshall. v. Canadian Cordage & Manuf. Co., 160 Ill. App. 114; Sparks v. Reliable Dayton Motor Car Co., 85 Kan. 29, 116 Pac. 363, Ann. Cas. 1912C, 1251. It was also recognized by the defendant in its dealings, according to some of the evidence in the case. It appears that when it sold an automobile in the plaintiff's territory it paid

to buy any. The fact that the plaintiff's
manager was instrumental in bringing the
parties together, and that the Taxi Service
Company bought many cabs from the defend-
ant after the expiration of the plaintiff's con-
tract cannot avail the plaintiff in this pro-
ceeding. Consequently the plaintiff is enti-
tled to 20 per cent. on the price list ($3,350)
of 51 taxicabs, less the sum of $10 on each
one, which is the expense the plaintiff would
have incurred if it had made the sales; and
a decree is to be entered accordingly.
So ordered.

(215 Mass. 156)

OLD COLONY TRUST CO. v. MEDFIELD & M. ST. RY. CO.

(Supreme Judicial Court of Massachusetts. Suffolk. May 31, 1913.)

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1. CHATTEL MORTGAGES (§ 86*)-RECORDTIME-DATE WRITTEN IN THE MORTGAGE.' Rev. Laws, c. 198, § 1, provides that a mortgage of personal property shall be recorded within 15 days "from the date written in the mortgage," or it shall not be enforceable against a person other than the parties thereto, unless the property mortgaged shall have been deliv ered .to or retained by the mortgagee. Held electric railway covering real and personal that, where a mortgage securing bonds of an property could not have been recorded without acknowledgment, and the date in the caption designated only the date of the bonds from should accrue or to become payable were to be which the periods when the semiannual interest computed, and the mortgage bore a subsequent date of acknowledgment such latter date was the date when it became operative, and the "date written in the mortgage," within the statute, and, having been recorded within 15 days subsequent to that date, the mortgage was valid.

Mortgages, Cent. Dig. § 161; Dec. Dig. § 86.*] [Ed. Note.-For other cases, see Chattel 2. CHATTEL MORTGAGES (§ 54*)-FORECLOSURE. CLAIMS-PRIORITY.

Where a street railroad company never installed an electric plant, but from the time it began to do business purchased electric power at a daily rate from claimant, the latter's claim for arrears due for power furnished was

not entitled to preference over the claims of bondholders in a suit to foreclose a pre-existing mortgage; the bondholders not having been benefited by claimant's expenditure. [Ed. Note.-For other cases, see Chattel Mortgages, Dec. Dig. § 54.*]

3. MORTGAGES ($ 470*) - RECEIVERS APPOINTMENT-EFFECT LIENS.

By the appointment of a receiver in a suit to foreclose a mortgage the court was not vested with authority to displace vested contract liens on the property; it being the exception, and not the rule, that the priority of mortgage liens can be displaced in favor of unsecured general creditors.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1101, 11012; Dec. Dig. § 470.*1 4. RECEIVERS (§ 158*)-INSOLVENCY-PRIORITY OF CLAIMS-SECURED CLAIMS.

BRALEY, J. The defendant having made default in the payment of the semiannual installments of interest, the bill is brought by the plaintiff, who by force of St. 1911, c. 128, is the successor of the original trustee, for a foreclosure of the mortgage or indenture of trust by the railway company upon all its real and personal property as security for the payment of the bonds. A decree has been entered taking the bill for confessed as against the defendant, and no question is raised as to the regularity of the proceedings, or the right of the plaintiff to a foreclosure in accordance with the provisions of the mortgage, or that the defendant is insolvent. The receiver appointed to take possession of the property, operate the railway, and to receive and disburse the income and

Under St. 1897, c. 400 (Rev. Laws, c. 150, § 29), specifying the class of claims entitled to priority in the settlement of an insolvent's estate by receivers, which corresponds substan-earnings derived therefrom as the court tially with the preferences enumerated in Rev. Laws, c. 163, § 118, cls. 3, 4, 5, a corporation furnishing electricity to a railroad company for motive power was not entitled to a preference for money due therefor from the railroad company over the claims of other creditors.

might direct, having filed his report allowing, subject to the mortgage, certain unsecured claims which have been presented and proved, the Milford, Attleboro & Woonsocket Railway Company, hereinafter referred to as the claimant, the amount of whose debt is undis

[Ed. Note. For other cases, see Receivers, Cent. Dig. §§ 301-306; Dec. Dig. § 158.*] 5. RECEIVERS ( 148*)-UNSECURED DEBTS-puted, contends that the mortgage as to the

PREFERENCES.

St. 1898, c. 420, re-enacted as Rev. Laws, c. 167, § 126, providing that an attachment four months old, prior to the filing of a bill against the debtor for a receiver, should be dissolved unless the court ordered the action prosecuted for the benefit of the estate, indicated an intention of the Legislature to place on a parity all unsecured debts owed by an insolvent, whether the estate is administered by a court of insolvency or by a court of equity through a receiver.

[Ed. Note.-For other cases, see Receivers, Cent. Dig. § 260; Dec. Dig. § 148.*]

personal property is invalid, because it was not duly recorded, and that, if the mortgage is held to be valid, its debt should be given precedence either for the entire amount, or by analogy with the period fixed for the semiannual payment of interest on the bonds, for so much as accrued within six months next preceding the filing of the bill. Westinghouse Air Brake Co. v. Kansas City Southern Ry., 137 Fed. 26, 40, 71 C. C. A. 1.

[1] R. L. c. 198, § 1, requires a mortgage of personal property to be recorded within 6. CORPORATIONS (§ 566*)-INSOLVENCY-DIS- 15 days "from the date written in the mort

-

TRIBUTION OF ASSETS PARTICIPATION BY CREDITORS-PRIORITY OF CLAIMS. When called on to determine the rights of different classes of creditors entitled to participate in the distribution of the assets, of an insolvent, a court of equity, even in the absence of statutory provisions expressly directing the order in which debts should be ranked, will adopt and follow wherever practicable the rule prescribed by statute relating to the allowance of debts in insolvency, or bankruptcy; and the court has no inherent power to diminish the rights conferred on a mortgagee by Rev. Laws, c. 196, § 1, and allow an unsecured creditor priority over a secured creditor.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2283-2286; Dec. Dig. § 566.*]

Case Reserved from Supreme Judicial from Supreme Judicial Court, Suffolk County.

Suit by the Old Colony Trust Company against the Medfield & Medway Street Railway Company. Application by the Milford, Attleboro & Woonsocket Street Railway Company for allowance of a claim for electricity as preferred. Denied.

Harold Stearns Davis and Storey, Thorndike, Palmer & Dodge, all of Boston, and Verrill, Hale & Booth, of Portland, Me., for plaintiff. Chas. C. Milton, of Worcester, and Henry H. Fuller, of Boston, for claimant.

gage" or it shall not be enforceable against a person other than the parties thereto, unless the property mortgaged has been delivered to or retained by the mortgagee. the words, "date written in the mortgage," mean? The original St. 1874, c. 111, § 1, provided that such mortgage must be recorded "within fifteen days after the date thereof," and so in substance are Pub. Sts., 1882, c. 192, § 1. It was held in Shaughnessey v. Lewis, 130 Mass. 355, that the word “date” should be considered as meaning the time. when the instrument became effectual as the contract of the parties, namely, upon delivery, of which the time stated in the mortgage might be considered as evidence, even if it would not be conclusive. But presumably in consequence of this decision St. 1883, c. 73, enacted that "every mortgage of personal property shall be recorded within fifteen days from the date written in the mortgage," and this has since been the law. The mortgage could not have been admitted to record in the registry of deeds without acknowledgment, even if by reason of the dual character of the mortgaged property it also must be entered upon the records

of the town. R. L. c. 127, § 7; Id. c. 198, § 1. If the indenture or mortgage is referred to in the caption as dated July 2, 1900, the in testimonium clause and certificate of acknowledgment, where it is declared that the defendant's corporate seal is affixed and the instrument lawfully executed and acknowledged in its name and behalf by its president and treasurer, duly authorized by vote of the stockholders, bears date as of July 27, 1900. The instrument, while a mortgage, includes the terms of the contract, the performance of which is secured. The wording of the context, especially in article 2, shows beyond conjecture that the time first named designated only the date of the bonds from which the periods when the semiannual interest should accrue and become payable were to be computed. It was the intention of the parties that the instrument, when properly executed, should constitute a mortgage, and until then it was not dated, nor did it become a lien upon the property. Having been recorded within 15 days thereafter the mortgage is valid. Orcutt v. Moore, 134 Mass. 48, 52, 45 Am. Rep. 278; Drew v. Streeter, 137 Mass. 460, 462; Amerige v. Hussey, 151 Mass. 300, 24 N. E. 46; Berry v. Levitan, 181 Mass. 73, 63 N. E. 11; Harrison v. J. W. Warner Co., 183 Mass. 123, 66 N. E. 589.

business of the road, and to order the receiver to pay such loans and claims before making payment of a valid first mortgage, overdue when the suit to foreclose was begun by a second mortgagee, has been limited by Gregg v. Metropolitan Trust Co., 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717, where a majority of the court decided that a claim for ties necessary to the preservation of a railroad, furnished six months previous to the appointment of a receiver, did not in the absence of special circumstances entitle the petitioner to a preference over a mortgage recorded before the contract for the ties was made. See also Wallace v. Loomis, 97 U. S. 146, 24 L. Ed. 895; Union Trust Co. v. Souther, 107 U. S. 591, 2 Sup. Ct. 295, 27 L. Ed. 488; Union Trust Co. v. Illinois Midland Ry., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963. It is plain, from the nature and terms of the contract, that the parties at its inception had no intention to charge the property with a lien. Pinch v. Anthony, 8 Allen, 536; Elmore v. Symonds, 183 Mass. 321, 322, 67 N. E. 314; Westall v. Wood, 212 Mass. 540, 545, 99 N. E. 325. The service was performed in so far as appears on the general credit of the mortgagor, and apparently the power could have been discontinued at will if the payments which accrued daily were not made. The plaintiff's security would have [2] The defendant, although chartered to been unimpaired if the claimant, being unconstruct, equip and operate a street railway, able to collect, had sought to secure reimnever installed an electrical plant, but from bursement by a second mortgage, or to enthe time it began to do business, the motive force payment by attachment, of the same power has been furnished by the claimant. personalty. Berry v. Levitan, 181 Mass. 73, Under the terms of the contract the compen- 63 N. E. 11; Travis v. Bishop, 13 Metc. 304; sation was fixed at a daily rate, which the R. L. c. 167, § 69. If during the period in parties agree was reasonable, and the plain- arrears current earnings, with its knowledge tiff concedes that the service rendered was and assent, had been diverted for the benefit necessary for the operation of the railway. of the plaintiff before necessary current inAlthough for a time payments were regularly debtedness, to maintain the road in operamade, when the receiver was appointed they tion, had been paid, there might have been were in arrears for a period slightly in ex- ground for contending that the security of cess of two years. The property for the the bondholders should be charged in equity purpose of our decision may be treated as if with the restitution of the fund, where but converted by sale and the proceeds held as a for such diversion there would have been net fund for distribution by the court. Markey earnings to which the equitable lien would v. Langley, 92 U. S. 142, 23 L. Ed. .701. The have attached. Coram v. Davis, 209 Mass. argument of counsel for the claimant is that 229, 246, 95 N. E. 298; Burnham v. Bowen, the debt should be given priority over the 111 U. S. 776, 4 Sup. Ct. 675, 28 L. Ed. 596; bondholders, on the authority substantially St. Louis & Terre Haute R. R. v. Cleveland, of Miltenberger v. Logansport, Crawfords- Columbus, Cincinnati & Indianapolis Ry., ville & Southwestern Ry., 106 U. S. 286, 1 125 U. S. 658, 8 Sup. Ct. 1011, 31 L. Ed. 832. Sup. Ct. 140, 27 L. Ed. 117. See also South- No interest, however, was paid on the bonds. ern Ry. v. Carnegie Steel Co., 176 U. S. 257, Indeed the receipts were not sufficient even 20 Sup. Ct. 347, 44 L. Ed. 458. It is unneces- to meet running expenses. Nor can the desary, however, to determine whether Milten- lay to institute foreclosure proceedings, until berger v. Logansport, Crawfordsville & South- nearly three years elapsed after the last western Ry., holding that a court of equity installment of interest had been met, create has power not only to appoint, but to author- an equitable lien. The mortgage, even if ize, a receiver of a railroad to hire money the mortgagor remained in possession, still required for the management and preserva- subsisted, and there is not even an intimation of the property, and to pay claims for tion that, with knowledge of the business rematerials, repairs, ticket and freight bal-lations of the mortgagor and the claimant, ances, some of which were contracted more a foreclosure had been postponed so that the than ninety days before his appointment, mortgagee might be benefited by the claim

West Hartford Horse R. R., 76 Conn. 11, 55 Atl. 664, 100 Am. St. Rep. 977; Fordyce v. Omaha, Kansas City & Eastern R. R. (C. C.) 145 Fed. 544, 556. The debt incurred doubtless tended to preserve temporarily the business and good will, upon the success of which the value of the bonds as an investment may largely have depended. But if the broad doctrine which the claimant presses is given full recognition, it is difficult in the exercise of sound discretion to ascertain where the line of demarcation should be drawn, for the preservation of a street railway as a going business enterprise, as well as its safe and efficient operation, demands not merely the furnishing of motive power, but cars, rails, ties, and other essential equipment. Lackawanna Iron & Coal Co. v. Farmers' Loan & Trust Co., 176 U. S. 298, 316, 20 Sup. Ct. 363, 44 L. Ed. 475; Gregg v. Metropolitan Trust Co., 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717.

[3] While it is true that the plaintiff invokes the aid of a court of equity to enforce its security, it is also true that it comes as a mortgagee under a valid instrument. By the appointment of a receiver the court is not vested with a general authority to displace vested liens on the body of the property created by contract, and it is the exception, and not the rule, that the priority of mortgage liens can be displaced in favor of unsecured general creditors. Kneeland v. American Loan & Trust Co., 136 U. S. 89, 98, 10 Sup. Ct. 950, 34 L. Ed. 379; Thomas v. Western Car Co., 149 U. S. 95, 111, 13 Sup. Ct. 824, 37 L. Ed. 663; Lackawanna Iron & Coal Co. v. Farmers Loan & Trust Co., 176 U. S. 298, 316, 20 Sup. Ct. 363, 44 L. Ed. 475. The defendant had full authority to convey in mortgage its entire property, and, as the mortgage had been recorded, the claimant, when it entered into the contract, did not act under any mistake or misapprehension as to the actual condition of the defendant's title, which it should not be permitted to overset even if the claim is meritorious. Bullock v. Williams, 16 Pick. 33, 35; Allis-Chalmers Co. v. Central Trust Co., 190 Fed. 700, 111 C. C. A. 428, 39 L. R. A. (N. S.) 84. The debt moreover, if the defendant had been declared an insolvent debtor, is not within the class entitled to a pref

erence.

[4-6] The claimant under R. L. c. 163, § 118, would have ranked as an unsecured general creditor. St. 1897, c. 400, now R. L. c. 150, § 29, specifies the class of claims entitled to priority in the settlement of insolvent estates by receivers, which corresponds substantially with the preferences enumerated in R. L. c. 163, § 118, clauses 3, 4 and 5. And St. 1898, c. 420, re-enacted in R. L. c. 167, § 126, further assimilated the effect of a receivership on the rights of creditors with the operation of an assignment under R. L. c.

163, §§ 54, 55, by providing that an attachment four months old prior to filing the bill should be dissolved, unless the court ordered the action prosecuted for the benefit of the estate. It evidently was the intention of the Legislature to place upon a parity all unsecured debts owed by an insolvent debtor, whether the estate is administered by a court of insolvency, or by a court of equity through a receivership. Waite v. Worcester Brewing Co., 176 Mass. 283, 57 N. E. 460. Under those enactments, the admission to proof of alleged preferential debts ordinarily depends upon the inquiry, whether they come within the prescribed classification. When called upon to determine the rights of different classes of creditors entitled to participation in the distribution of assets of an insolvent corporation, a court of equity, even in the absence of statutory provisions expressly directing the order in which debts shall be ranked, will adopt and follow wherever practicable the rule prescribed by statute relating to the allowance of debts in insolvency or bankruptcy. Jones v. Arena Pub. Co., 171 Mass. 22, 29, 50 N. E. 15; Franklin Co. Bank v. First Nat. Bank, 138 Mass. 515, 518; Story's Eq. Jur. (13th Ed.) § 64. See Bankruptcy Act July 1, 1898, c. 541, § 64, subds. "a," "b," 30 Stat. 563 (U. S. Comp. St. 1901, p. 3447); In re Byrne (D. C.) 97 Fed. 762. We are not aware of any inherent power of this court which enables us to diminish the rights conferred on the mortgagee by R. L. c. 198, § 1, or to sanction the allowance of preferences or priorities between a secured and unsecured creditor by taking them up where they were left by the requirements of our laws, and extending the right of participation further than the law permits. Arena Pub. Co., 171 Mass. 22, 50 N. E. 15; Sunter v. Sunter, 190 Mass. 449, 455, 77 N. E. 497; Metropolitan Trust Co. v. Tonowanda Valley & Cuba R. R., 103 N. Y. 245, 8 N. E. 488; Magniac v. Thompson, 15 How. 299, 14 L. Ed. 696; Hedges v. Dixon, 150 U. S. 182, 14 Sup. Ct. 71, 37 L. Ed. 1044. The report of the receiver should be confirmed.

1.

Decree accordingly.

Jones v.

(215 Mass. 164)

ALDRICH v. ALDRICH.

(Supreme Judicial Court of Massachusetts. Suffolk. June 2, 1913.)

WILLS (§ 166*)-UNDUE INFLUENCE-ACTS CONSTITUTING.

As a wife may lawfully urge her husband to make a will in her favor, the mere fact that the wife, made the principal legatee, is the second wife of testator, who married her about a year after the death of his first wife, who was herited by the will, does not alone prove undue the mother of his children, substantially disininfluence.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*]

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