« PrethodnaNastavi »
rightfully acting for the respondent Butler, | the lien. But as the respondent in his anthe owner of the premises, called for the fur-swer raised these issues, to which the judge's nishing of the labor and materials necessary attention also was specifically called, the for the plumbing, heating, and piping of the burden of proof rested on the petitioner to building for gas and water, at an entire price, bring himself within the exception. Carberry No notice having been given to the owner v. Sharon, 166 Mass. 32, 33, 43 N. E. 912. as provided by R. L. c. 197, § 3, a lien for ma- These questions were questions of fact. terials did not attach, and the petitioner Thompson v. Luciano, 211 Mass. 169, 170, 97 having substantially completed his part of N. E. 892. the work, as found by the auditor, seeks to  It is immaterial whether upon the recenforce a lien for labor only under section ord this court would have been impressed by 2. A mechanic's lien being a creature of this defense. The general finding for the statute, compliance with the prescribed re- respondents not having been unwarranted, quirements must be shown. By section 6 the judge who saw the witnesses must have the statement must set forth the number of been convinced that the failure to state the days of labor performed or furnished. The account with statutory exactness had not only item is for "labor from July 9 to Decem- occurred through inadvertence, or that the ber 17, 1909," and upon its face the statement description which otherwise would have been was defective. Patrick v. Smith, 120 Mass. sufficient, under the amendment to the peti510; Sexton v. Weaver, 141 Mass. 273, 6 N. tion, was not sufficiently accurate to enable E. 367; Martin v. Stewart, 208 Mass. 583, 95 him to identify the land which could be subN. E. 212. Under section 1, a right to have jected to the lien. Devine v. Clark, 198 Mass. a lien attaches at the time the work is done 56, 84 N. E. 309; Pollock v. Morrison, 176 to the interest of the owner of the building Mass. 83, 57 N. E. 326; Orr v. Fuller, 172 or structure in the whole, and not to a part Mass. 597, 52 N. E. 1091; R. L. c. 197, § 14. of the land on which it stands. Collins v. The statement having been found incurably Patch, 156 Mass. 317, 31 N. E. 295; Orr v. incomplete, the petition cannot be maintainFuller, 172 Mass. 597, 52 N. E. 1091; Vickery ed, and no error of law appearing in the rev. Richardson, 189 Mass. 53, 55, 75 N. E. 136; fusal to give the petitioner's requests for Kelley v. Border City Mills, 126 Mass. 148. rulings, the exceptions must be overruled. Carnes v. Howard, 180 Mass, 569, 63 N. E. 122.
[4, 5] The unrecorded plan which this respondent caused to be prepared showed that at the date of the contract the land had been divided into lots. If it was his intention to treat the subdivisions as separate units, the description of the portion or lot on which the building stood, was found by the judge when dealing with the third request to have been sufficient. The true purpose and intention of
(216 Mass. 12)
POOLE v. BOSTON & M. R. R. (Supreme Judicial Court of Massachusetts. Franklin. Oct. 22, 1913.)
the owner not only were material, but when 1. TRIAL (§ 63*)-ORDER OF PROOF-ADMIS
ascertained are decisive. Pollock v. Morrison, 176 Mass. 83, 57 N. E. 326. The acts of the respondent in causing iron pins or stakes to be placed at the corners of the lots, and the laying out of the street, coupled with the previous conveyance of two lots, and the subsequent mortgage of the lot in question under descriptions corresponding with the plan, while furnishing strong presumptive proof of a division into building lots recognized and dealt with independently as such, were however to be considered in connection with his testimony, that he regarded the unsold portion as constituting but a single tract. Orr v. Fuller, 172 Mass. 597, 52 N. E. 1091.  A further provision, however, is found  A further provision, however, is found in section 6, that the omission to state the number of days where the description given is sufficiently accurate for identification, if there is no intention to mislead, and the parties entitled to notice have not been in fact thereby misled, and in section 7, that an “inaccuracy in the statement relative to the property to which it attaches if such property can be reasonably recognized from the description," shall not affect the validity of
SION IN REBUTTAL.
The presiding judge can properly exclude evidence in chief when offered in rebuttal.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 151-153; Dec. Dig. § 63.*] 2. RAILROADS (8 347*)-ACTION FOR INJURY AT CROSSING-ADMISSIBILITY OF EVIDENCE.
train colliding with plaintiff's buggy at a railIn an action for an injury by a freight road crossing, the admissibility of a rule of the company requiring trainmen to be on top of trains in approaching yard limits, passing railroad grade crossings, drawbridges, and other points where the train was required to stop, also in descending heavy grades, and at places where the train was liable to break apart, and requiring one of the crew to ride in the monitor of the caboose at all times, was rightly limited to the last sentence, in the absence of evidence of conditions rendering any of the rest applicable.
[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.*] 3. RAILROADS (§ 299*) - "RAILROAD GRADE CROSSING."
where a railroad crosses a highway at grade, By a railroad grade crossing is meant, not but where two lines of railway cross at grade.
[Ed. Note.-For other_cases, see Railroads, Cent. Dig. §§ 954, 958; Dec. Dig. § 299.*]
Where, in a railway crossing accident caused by a freight train colliding with plaintiff's buggy, the contention of defendant was that the horse was driven into the train, it was not error to refuse to permit a witness to testify that he knew the horse and his qualities, and that he could not be driven into a train, since it was opinion evidence.
4. EVIDENCE (§ 493*)-ACCIDENTS AT CROSS- | tween a buggy, in which the plaintiff was ING-OPINION EVIDENCE. riding with one Baker, and a freight train of the defendant, at a grade crossing on Water street in Orange. The accident occurred at about 11 o'clock at night, May 17, 1911. Baker was killed. The case has been here before, and is reported in 212 Mass. 596, 99 N. E. 471. At the previous trial the presiding judge, at the close of the evidence, directed a verdict for the defendant, subject to the plaintiff's exceptions. The exceptions were sustained and the case was sent back for another trial, at which there was a verdict for the defendant. The case is here now on exceptions by the plaintiff to the admission and exclusion of evidence and to
[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2275-2282; Dec. Dig. § 493.*] 5. TRIAL (§ 63*)—Order of PROOF-REBUTTAL EVIDENCE.
Where the plaintiff himself had testified in chief as to his horse's qualities, evidence of another witness to the same effect was in part cumulative, and not in rebuttal, and properly excluded.
[Ed. Note. For other cases, see Trial, Cent. Dig. 8$ 151-153; Dec. Dig. § 63.*]
6. TRIAL (8 267*)-INSTRUCTIONS-REQUESTS. The presiding judge was not required to give requests in the exact language in which made, but it was sufficient if he gave them in substance and effect.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dec. Dig. § 267.*] 7. TRIAL (§ 244*) - INSTRUCTIONS - UNDUE PROMINENCE TO PARTICULAR MATTERS.
The presiding judge was not obliged to single out one phase of the case, because requested to do so, and lay upon it a disproportionate emphasis as compared with other matters involved in, and necessary to a proper consideration of, the case.
[Ed. Note.-For other cases, see Trial, Cent. Dig. § 577-581; Dec. Dig. § 244.*] 8. RAILROADS (§ 350*)-ACCIDENTS AT CROSS
Where, in an action for an injury caused by the rear end of a train, which had broken apart, colliding with plaintiff's buggy in the nighttime at a railroad crossing, the evidence was conflicting as to the cause of the breaking apart, it could not be ruled as a matter of law that defendant was negligent, though, in the absence of explanation; the jury would be warranted in inferring negligence.
[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1152-1192; Dec. Dig. § 350.*] 9. RAILROADS (§ 340*)-ACCIDENTS AT CROSS
If the failure of a trainman to be in the monitor of the caboose, as required by the rules of the company, when it broke apart from the train and collided with plaintiff's buggy at a railroad crossing, contributed in any way to the accident, it was some evidence of negligence; if it did not so contribute, it was of no consequence.
[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1102-1104; Dec. Dig. § 340.*] Exceptions from Superior Court, Franklin County; Charles U. Bell, Judge.
Action by Edwin Poole against the Boston & Maine Railroad. Judgment for defendant, plaintiff excepts. Exceptions overruled.
certain rulings that were given and refused, and to certain portions of the charge.
 1. Assuming that the witness would have answered that when the team started to go across the main line there was nothing with lights on it coming down the track, it is plain that the evidence would have been admissible on the question of the plaintiff's due care and the defendant's negligence as part of the plaintiff's case in chief, and the presiding judge could therefore properly exclude it when offered in rebuttal. Burnside v. Everett, 186 Mass. 4, 7, 71 N. E. 82; Eames v. Whittaker, 123 Mass. 342.
[2, 3] 2. The admissibility of the rule that was offered in evidence was rightly limited to the last sentence of it. The exceptions recite that there was "no evidence that there were yard limits or railroad crossings at grade, or drawbridges, and the train was not required to stop at Orange, nor was there a heavy grade." And it did not appear that the crossing was a place where a train was None of the condiliable to break apart. tions, therefore, which rendered any of the rest of the rule applicable existed. By "railroad crossings at grade" is meant, we think, not where a railroad crosses a highway at grade, but where two lines of railway cross at grade. It was within the discretion of the presiding judge as to the conduct of the trial to admit the last sentence of the rule in evidence when he did.
[4, 5] 3. From marks and indications on the caboose which was the last car, and on the two cars next ahead of it, the defendant contended that the horse was driven into the train. To meet this the plaintiff offered to show in rebuttal, by a brother of the man who was driving the horse, that he had driven the horse and had "known it for a number of years and was familiar with its driving qualities; that it was a high-lifed
Wm. A. Davenport and Harry A. Wey-horse, a good driver, and from his experience mouth, both of Greenfield, for plaintiff. Dana Malone, of Boston, and Chas. N. Stoddard, of Greenfield, for defendant.
MORTON, J. This is an action of tort to recover for personal injuries received by the plaintiff as the result of a collision be
with the horse it could not be driven into a moving train." The presiding judge thought that what was offered was opinion evidence and excluded it. The plaintiff himself had testified in chief as to the horse's qualities, so that the evidence that was offered was in part at least cumulative and not in rebuttal and
might properly have been excluded for that But we think that it cannot be said that it was wrongly excluded for the reason given by the presiding judge. The witness was testifying not to a fact but to what was in effect his belief or opinion, and, assuming that the matter was one on which expert testimony was admissible, the presiding judge may have thought, and for aught that appears, did so think, that the witness was not sufficiently qualified as an expert to render his opinion admissible, and that was a question for him to determine. Hawks v. Charlemont, 110 Mass. 110.
[6-8] Requests for rulings were made by the plaintiff and the defendant respectively. Some of them were given and others refused. Two of the requests made by the plaintiff, the fifth and sixth, though they might have been refused in the form in which they were made, were in substance given with modifications. None of the requests that were given, were given in the exact language in which they were made. The presiding judge was not obliged to do that. It was sufficient if he gave them in substance and effect. Neither was he obliged to single out one phase of the case because requested to do so and lay upon it a disproportionate emphasis as compared with other matters involved in and necessary to a proper consideration of the case. Taking the case as a whole, it does not seem to us that there was any reversible error. There was evidence tending to show that the train broke apart near the rear end at or in the neighborhood of the crossing. The parties differed as to where on the line of the railroad and where in the train the breaking apart occurred. It appeared that it was a common thing for a train to break apart. The plaintiff contended that the accident was caused by a collision between the rear end of the train which had broken off and the horse and buggy in which he was riding, and in his second request asked the presiding judge to rule "that if the jury find that the train broke apart and detached cars proceeded over the crossing without lights or warning signal, and came in collision with the team in which the plaintiff was riding, this would be direct evidence of negligence on the part of the defendant." The presiding judge refused to rule as thus requested. The ruling asked for was evidently based upon the following language from the former opinion (212 Mass. 596, 598, 99 N. E. 471, 472): "And they [the jury] might find direct evidence of negligence in conduct which allowed cars detached from a train, without lights or warning signal and with the rear brakeman absent from his post of duty, to pass over an unguarded grade crossing." But the ruling requested went farther than this, and instead of asking the presiding judge to rule that the jury could find direct evidence of negligence in the conduct decribed, asked him to rule that it constituted
gence. This he could not do. If the facts in regard to the breaking apart of the train and of the collision had been agreed or were uncontradicted, then it would have been a question of law whether they warranted a finding that the defendant was negligent. But the parties were at issue as to the circumstances under which the train broke apart and the collision took place, and it was a question for the jury whether the breaking apart was due to negligence on the part of the defendant or not. In the absence of any explanation as to what caused the train to break apart, the jury would have been warranted in finding that the breaking apart was of itself evidence of negligence, or, as stated in the former opinion, was direct evidence of negligence, Griffin v. Boston & Albany R. R., 148 Mass. 143, 19 N. E. 166, 1 L. R. A. 698, 12 Am. St. Rep. 526; but it could not be so ruled as matter of law. It might be possible that the train broke apart from causes for which the defendant could not fairly be held accountable. The instructions that were given were sufficiently favorable, to say the least, to the plaintiff. The jury were told that "the fact of the accident with the surrounding circumstances" was sufficient to raise some presumption of negligence, but they were not to rely upon presumptions alone but were to take the whole evidence and see whether it satisfied them by a fair preponderance that the defendant had failed in some duty it owed to the plaintiff and was negligent. We think that the jury must have understood from this that the fact that the train broke apart afforded a presumption of negligence on the part of the defendant and could be so regarded by them in considering the case. They were not told that unexplained they could find evidence of negligence in the breaking apart of the train, which was all that the plaintiff was entitled to, but were told in effect that the accident itself, which was caused or could have been found to be caused, by the breaking apart of the train, could be regarded by them as presumptive evidence of negligence. This was, as we have said, sufficiently favorable to the plaintiff.
The facts recited in the third and fourth rulings requested, if they were facts, would have constituted evidence of negligence on the part of the defendant and of due care on the part of the plaintiff, but would not have warranted the presiding judge in directing the jury as matter of law to return a verdict for the plaintiff if the jury found, as requested in the third ruling, that the plaintiff was struck by the second section of the train, or in ruling as requested in the fourth ruling that the facts there recited constituted negligence on the part of the defendant as matter of law, and the requests were for these reasons properly refused.
 The fifth and sixth rulings requested were to the effect that if the brakemen were
direct evidence of negligence on the part of the defendant. These, as already observed, might have been refused in the form in which they were presented, for reasons previously stated in connection with the second request. But the presiding judge gave them in substance with the modification that the jury might consider the position of the brakemen if they found that it had anything to do with the accident. "If, for instance," the presiding judge said, "a brakeman under the rules should have been in the monitor would that have helped the plaintiff and saved this accident? If it would, the fact that he was not there is some evidence of negligence; if his being there would not have helped the plaintiff, then it is of no consequence in this case." This was correct.
We discover no error in the manner in which the presiding judge dealt with those requests of the defendant that were given, nor do we discover any error in the rest of the charge.
(216 Mass. 1)
WOODARD v. WOODARD et al. (Supreme Judicial Court of Massachusetts. Franklin. Oct. 22, 1913.)
1. EVIDENCE (§ 80*)-COMMON LAW-FOREIGN STATES.
In the absence of proof as to the laws of another state, where certain transactions in controversy occurred, it will be presumed that the common law of such state was the same as that of the forum.
[Ed. Note.-For other cases, see Evidence, Cent. Dig. 101; Dec. Dig. § 80;* Common Law, Cent. Dig. § 14.]
2. HUSBAND AND WIFE (§ 14*)-CONVEYANCE OF REAL PROPERTY-ESTATE CREATED-ENTIRETY.
Where a husband and wife were named as such, or known to the grantor or vendor to be such, a conveyance to them of either real or personal property ordinarily creates an estate by the entirety at common law, subject to the right of survivorship, by which each is secure against an impairment of rights through the sole act of the other.
[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 71-86, 88, 89; Dec. Dig. § 14.*]
3. HUSBAND AND WIFE (§ 14*)-REAL AND PERSONAL PROPERTY-OWNERSHIP - JOINT TENANCY.
A husband and wife may hold real or personal property, even at common law, in joint tenancy, as distinguished from an estate by the
[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 71-86, 88, 89; Dec. Dig. § 14.*]
4. TRUSTS (8_103*) - CONSTRUCTIVE TRUST
agreement between them to divide the proceeds, if void at law, was enforceable in equity, and the sale by mutual consent having severed their joint ownership, the husband held her portion in trust for her, and she was therefore entitled to maintain a bill to recover the amount withheld, if intact, or, if converted, to compel restitution from the husband's estate. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 154; Dec. Dig. § 103.*] 5. TRUSTS (§ 357*)-FOLLOWING TRUST PROP
A husband and wife, having sold certain real and personal property owned by them as joint tenants, the proceeds were paid to him between them; but he, instead of doing so, inunder an agreement that they should be divided vested the entire proceeds, together with all his other property, in certain real estate, the title to which he caused to be taken in the name of his granddaughter, intending to make a gift to her. Held, that the granddaughter was not a purchaser for value, and hence the wife was entitled to follow the fund, and impress the trust on the property into which her share had been invested.
[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 539-552; Dec. Dig. § 357.*]
Appeal from Superior Court, Franklin County.
Action by Mary E. Woodard against Elbridge G. Woodard and others. Judgment for defendants, and complainant appeals. Reversed as to defendants Elbridge G. Woodard and Mabel S. Woodard.
Frank J. Lawler, of Greenfield, for appellant. Chas. S. Ballard and Chas. J. Weston, both of Springfield, for respondents.
BRALEY, J. [1-3] The question for decision is whether, upon the pleadings and the master's report, to which no exceptions have been taken, the plaintiff is entitled to equitable relief as to either or all of the defendants. The defendant Elbridge G. Woodard is the husband of the plaintiff, and no evidence having been introduced as to the laws of the state of Vermont where the transactions out of which the controversy arises took place, we assume its common law to be the same as our own. Callender, McAusland & Troup Co. v. Flint, 187 Mass. 104, 72 N. E. 345. It is plain, from the master's very full and specific findings, that the plaintiff's husband fraudulently collected and retained to his own use all the moneys derived from the sale of certain real and personal property in which she is found to have had a joint and equal interest. By our decisions where husband and wife are named as such, or are known to the grantor or vendor to be such, ordinarily, the conveyance to them of either real or personal property creates at common law an estate by the entirety, subject to the right of survivorship, by which "each is secure against an impairment of rights through the sole act of the other." Donahue v. Hubbard, 154 Mass. 537, 28 N. E. 909, 14 L. R. A. 123, 26 Am. St. Rep. 271; Phelps v. Simons, 159 Mass. 415, 34 N. E. 657, 38 Am. St. Rep. Boland v. McKowen, 189 Mass. 563,
PERSONAL PROPERTY-HUSBAND AND WIFE. A husband and wife, having owned certain real and personal property as joint tenants, sold the same; the check for the proceeds being drawn payable to the husband, but subject to a mutual understanding that it should be divided between them and that she should receive the portion belonging to her. He collected the proceeds, refused to pay over her portion, and invested it in other property. Held, that the 430;
564, 76 N. E. 206, 109 Am. St. Rep. 663; 190 N. E. 985, 27 L. R. A. (N. S.) 154; Crosby Hoag v. Hoag, 213 Mass. 50, 99 N. E. 521. v. Clem, 209 Mass. 193, 195, 95 N. E. 297; Adoue v. Spencer, 62 N. J. Eq. 788, 49 Atl. 10, 56 L. R. A. 817, 90 Am. St. Rep. 484; Metzker v. Bonebrake, 108 U. S. 66, 2 Sup. Ct. 351, 27 L. Ed. 654; Stickney v. Stickney, 131 U. S. 227, 9 Sup. Ct. 677, 33 L. Ed. 136; Garner v. Second Nat. Bank of Providence, 151 U. S. 420, 14 Sup. Ct. 390, 38 L. Ed. 218.
No transfer appears to have been made directly or indirectly from one spouse to the other. The business dealings between third parties and themselves in the purchase, sale and mortgaging of the farms, and the purchase and sale of live stock as set forth in the report, were on the sole footing of a joint tenancy or ownership, even if for convenience the title appears to have been taken sometimes in the name of the husband, and sometimes in the name of the wife. It cannot be inferred or assumed, in view of the language of the report, that the plaintiff ever intended that the entire proceeds because of the marital relation should pass into his control or become his property. Nor did this defendant assert any claim thereto after the amended bill under which the case was tried had been filed. Indeed he never answered the amended bill, and the master states that he did not attend the hearings, nor was he represented by counsel, and that as to him the bill should be taken for confessed. It is also conceded in the brief for the defendants that he could not lawfully convert the amount in his possession due to the plaintiff. By the great weight of authority husband and wife where the intention is unmistakably shown, can hold real or personal property even at common law in joint tenancy as distinguished from an estate by the entirety. Hoag v. Hoag, 213 Mass. 50, 53, 99 N. E. 521, and authorities cited; Fulper v. Fulper, 54 N. J. Eq. 431, 34 Atl. 1063, 32 L. R. A. 701, 55 Am. St. Rep. 590; Miner v. Brown, 133 N. Y. 308, 31 N. E. 24; Hunt v. Blackburn, 128 U. S. 464, 9 Sup. Ct. 125, 32 L. Ed. 488; 21 Cyc. 1198, note 74.
 The check for the proceeds of the final sale of the property, both real and personal, although made payable to him, was drawn subject to the mutual understanding and agreement that it should be collected and divided by both, and that she should receive the portion belonging to her. If by reason of coverture this agreement at law was a nullity, yet in equity the actual intent and true understanding of the parties governs. Wood v. Chetwood, 44 N. J. Eq. 64, 66, 14 Atl. 21; 2 Story, Eq. Jur. (13th Ed.) § 1373. The sale by mutual consent severed the joint ownership. Williams v. Hensman, 1 Johns. & H. 546, 557; Edwards v. Champion, 3 DeG. M. & G. 202; Palmer v. Rich,  1 Ch. 134. And the money belonging to the plaintiff not having been received as his own, but under an implied trust to account for it as her individual property, she can maintain the bill to recover the amount withheld if intact, or if it is converted, to compel restitution from his own estate. Atlantic Bank v. Tavener, 130 Mass. 407; Frankel v. Frankel, 173 Mass. 214, 53 N. E. 398, 73 Am. St. Rep. 266; Atkins v. Atkins, 195 Mass. 129, 80 N. E. 806, 11 L. R. A. (N. S.) 273, 122 Am. St.
 The subsequent transactions with his son, Frank E. Woodard, as detailed in the report, disclose his purpose not merely wrongfully to appropriate the plaintiff's money or share, but to deprive her of all redress by placing the property beyond her reach. But if the son seems to have acted only as an innocent intermediary, and the bill as to him and his wife the defendant, Margaret E. Woodard, was properly dismissed, the transfer and arrangements made through his agency resulted in the purchase by Elbridge G. Woodard of a parcel of real property, the title to which he caused to be taken in the name of his granddaughter, Mabel S. Woodard, the remaining defendant. The purchase price consisting in part of the unexpended proceeds of the check which were more than enough to satisfy the plaintiff's share, also exhausted all of the husband's money, and it appears from the report that at the time he possessed no other assets. It is further found that the conveyance made without the request, knowledge or consent of the grantee, was intended by her grandfather as a gift in so far as "he had authority and power" to make a gift. A voluntary transfer of this nature stripping him of his property was voidable by those to whom he then was indebted or under obligations to account for moneys fraudulently appropriated, and Mabel S. Woodard not having been a purchaser for value the real estate standing in her name can be reached and applied by the plaintiff in satisfaction of her equitable demands. Beal v. Warren, 2 Gray, 447, 456; Winchester v. Charter, 12 Allen, 696; Id., 97 Mass. 140; Id., 102 Mass. 272; Springfield Inst. for Savs. v. Copeland, 160 Mass. 380, 384, 385, 35 N. E. 1132, 39 Am. St. Rep. 489; Atkins v. Atkins, 195 Mass. 124, 128, 129, 80 N. E. 806, 11 L. R. A. (N. S.) 273, 122 Am. St. Rep. 221; Hewitt v. Hayes, 205 Mass. 356, 361, 364, 91 N. E. 332, 137 Am. St. Rep. 448; Newell v. Hadley, 206 Mass. 336, 92 N. E. 507, 29 L. R. A. (N. S.) 908; Wenz v. Pastene, 209 Mass. 359, 95 N. E. 793; Bailey v. Wood, 211 Mass. 37, 97 N. E. 902, Ann. Cas. 1913A, 950. The final decree dismissing the bill as to Elbridge G. Woodard and Mabel S. Woodard, who are the sole defendants, must be reversed, and a decree to be enforced against the property standing in the name of Mabel S. Woodard for the amount found due by the master, with interest and costs is to be entered, but its form and terms are to be settled in the superior court.