court. [Ed. Note. For other cases, see Courts, Dec. Dig. 1762* Appeal and Error, Cent. Dig. §§ 33792, 3382.] peal from the land court may be taken by any [the statute authorizing the transfer of quesparty aggrieved by any ruling, etc., of the court tions of law raised in such a trial in the to the Supreme Judicial Court for revision, the same as in proceedings at law in the superior superior court directly to this court for determination, must contemplate an appeal from an interlocutory judgment among the matters which may be brought directly to this court. No question of law, however, can be brought here from the superior court until all other proceedings in that court have come to an end. To that extent the rule of Cotter v. Nathan & Hurst Co. applies. In the case at bar proceedings had come to a conclusion in the superior court and certificate had been sent by the clerk of the superior court to the land court under R. L. c. 128, § 14. Hence the case is properly before us. 4. COURTS (§ 1762*)-LAND COURT-AUTHORITY OF SUPERIOR COURT TO AMEND ISSUES. Where, in a writ of entry, one of the issues allowed in the land court related to the amount of rents and profits for which the tenant was liable, and the tenant duly made a claim for improvements as a set-off, the demandants making no election, as provided in Rev. Laws, c. 179, § 28, et seq., and during a trial of the case before a jury in the superior court on appeal it became doubtful whether the issue touching the amount of rents and profits for which the tenant was liable made plain the allowances for improvements, an amendment of the issues was properly allowed on motion, so as to clarify the issues. [Ed. Note. For other cases, see Courts, Dec. Dig. § 1762* Appeal and Error, Cent. Dig. §§ 33792, 3382.] Appeal from Superior Court, Middlesex County. Writ of entry to recover land in Medford, brought by Ethel C. Weld against Nathan D. A. Clarke. The tenant appealed from the order of the superior court allowing demandant's motion that issues framed in the land court for the jury be changed. Judgment affirmed. J. C. Batchelder, of Lynn, for appellant. Joseph Bennett, of Boston, for appellee. [4] This is a writ of entry. One of the issues allowed in the land court related to the amount of rents and profits for which the tenant was liable. R. L. c. 179, § 21, provides that in writs of entry the jury shall at the same time, when it tries the main issue of fact, determine the amount to be allowed for improvements. The tenant seasonably made a claim for improvements. R. L. c. 179, §§ 17 to 27, both inclusive, have to do with the method of allowing a tenant for Section 23 provides for a improvements. set-off of improvements against rents and profits. It is plain from reading all these sections that where there is no election by the demandant, as provided in section 28 and following, the question of improvements is to be heard at the same time with that of rents and profits and other damages, and the allowance to be made to the demandant is only of the balance. Apparently during the trial in the superior court it was doubtful whether the issue touching the amount of rents and profits, for which the tenant was liable, made plain the allowance to the tenant for improvements as it ought to have done in order to comply with the statutes and do justice between the parties, and on motion the issue was amended so as to make the question plain in this regard. It did not enlarge the issue but merely clarified it. The action of the superior court was well within its authority. Luce v. Parsons, 192 Mass. 8, 77 N. E. 1032. Judgment affirmed. RUGG, C. J. [1-3] This is an appeal from an order of the superior court allowing a motion to change the issues framed in the land court for a trial by jury in the superior court. The order was interlocutory in its nature and could not be brought to this court by appeal until final judgment. Cotter v. Nathan & Hurst Co., 211 Mass. 31, 97 N. E. 144. A case in the land court which goes to the superior court on appeal for a jury trial presents a peculiar procedure. St. 1904, c. 448, § 8, which governs the practice in this case (see, also, St. 1910, c. 560, §§ 6 and 8), provides that "questions of law arising in the superior court on such appeal may be taken by any party aggrieved by any opinion, ruling, direction or judgment of the court to the Supreme Judicial Court for revision, in the same manner as in proceedings at law in said superior court." There can NEW ENGLAND NEWS CO. v. METRObe no judgment in a proceeding begun in the land court, which shall be final in the sense that it disposes of all the issues raised, except in the land court. Under the practice as now established by the statutes a jury in the superior court is the forum where alone jury trials may be had by appeal in cases pending in the land court. The superior court has no jurisdiction of such cases except for the ascertainment of facts by jury trial. The word "judgment," however, in POLITAN S. S. CO. (215 Mass. 252) (Supreme Judicial Court of Massachusetts. Suffolk. June 18, 1913.) CARRIERS (§ 158*)-LIMITATION OF LIABILITY BY BILL OF LADING-INVOICE PRICE. bona fide invoice containing a detailed list of Plaintiff returned unsold magazines, by a those sent and of the prices originally paid for them, and the consignee, on actual receipt thereof, was to credit plaintiff with such amount. Under a steamship bill of lading providing that the amount of loss should be computed on the basis of the value of the property, being the [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-7032, 708-710, 718, 7182; Dec. Dig. § 158.*] bona fide price, if any, to the consignee, plain- | American News Company for the price the tiff paid the charges fixed for the original car- plaintiff originally paid for the periodicals. riage of new magazines and not the lower commodity rate for paper stock. Held, in an action If for any reason the magazines were not to recover for their destruction by fire at the actually received by the American Company, dock, that the invoice price fixed between the as was the case here, no credit therefor was plaintiff and the consignee was the measure of given to the plaintiff. In effect, the magadamages, but that an allowance on goods returned of one and two cents a pound for han- zines involved in this action were being redling them, not known to the defendant, was not sold by the plaintiff to the American News included in the "invoice price," and hence was Company, according to the agreed price; and not recoverable. the charge paid to the defendant for the shipment was that fixed for the original carriage of new magazines and not the much lower commodity rate for waste or paper stock. There is ample evidence that the invoice price was a bona fide one, and the defendant is bound by the agreement into which it voluntarily entered. Graves v. Lake Shore & Michigan Southern R. R., 137 Mass. 33, 50 Am. Rep. 282; Peirce v. American Express Co., 210 Mass. 383, 96 N. E. 1026; Coleman v. N. Y., N. H. & H. R. R. (May 24, 1913) 102 N. E. 92. Report from Superior Court, Suffolk County; John H. Hardy, Judge. Action by the New England News Company against the Metropolitan Steamship Company. In the superior court there was a finding for the plaintiff for $775.36, and the case was reported to the Supreme Judicial Court. Judgment ordered to be entered for plaintiff in accordance with the report. Horgan & Hilly, of Boston, for plaintiff. Barton & Barton, of Boston, for defendant. DE COURCY, J. The plaintiff seeks to recover the value of 28 bags of magazines or periodicals, of recent but not current issues, shipped by steamer from Boston to New York on July 14, 1910, and destroyed by fire at the defendant's dock in New York City on July 16, 1910. The case is here by report on the pleadings and agreed statement of facts; and the only question involved is the measure of damages. The contract between the parties, so far as material to the question in controversy, is set out in section 3, on the back of the bill of lading, in these terms: "The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment." If then there was a bona fide invoice price fixed between the plaintiff and the consignees of these goods, that invoice price and not the market value of the magazines as waste paper, is the measure of damages in this action. It appears from the agreed facts that at the time the plaintiff delivered the merchandise to the defendant it sent to each consignee an invoice containing a detailed list of the magazines sent, and of the prices charged to them for each item. The plaintiff purchased periodicals from the American News Company, one of the consignees; and by an agreement long existing between them the plaintiff paid therefor weekly, subject to a return privilege. Magazines not sold by the plaintiff were returned to the American The defendant admits that it is liable for the value of the bags, which is $18.20. The American News Company was accustomed to allow the plaintiff for its expense in handling the magazines that it did not sell, such allowance being a fixed rate of one cent a pound on goods returned to Tousey and two cents a pound on goods returned to the American Company. The allowance for handling the goods in question would amount to $74.51; and the plaintiff seeks to recover that sum in this action. We are of opinion that the defendant is not liable for this item. It is not included in the "invoice price" for which the defendant agreed to be liable; and so far as appears the steamship company had no knowledge or notice of this agreement or method of business between the plaintiff and the American News Company when accepting these shipments. In accordance with the report, judgment is to be entered for the plaintiff in the sum of $700.85, with interest thereon from July 16, 1910, and taxable costs. So ordered. (215 Mass. 311) KAATZ v. CURTIS et al. (Supreme Judicial Court of Massachusetts. Essex. June 18, 1913.) 1. APPEAL AND ERROR (§ 848*)-REVIEWQUESTIONS FOR REVIEW. On appeal from a final decree of the superior court on facts found by a master, the only question is whether the decree is within the scope of the bill and is supported by the facts found. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3058-3064; Dec. Dig. § 848.*] 2. APPEAL AND ERROR (§ 646*)-RECORD-REVIEW-EVIDENCE CONSIDERED. News Company, or by its direction to the perior court, entered upon findings of a master, On appeal from a final decree of the supublisher, Tousey, the other consignee, and the printed statement of facts agreed upon by credit was given on its account with the the counsel can be considered only so far as it appears to embody the evidence that was before the judge whose decree was appealed from. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2802; Dec. Dig. § 646.*] 3. BOUNDARIES (§ 10*) ESTABLISHMENT REFERENCE IN DEED OR WILL TO PLAN. Where the owner of a tract of land made plans of all and of parts of it, and recorded some of them, and by his will devised two lots of land, with buildings thereon, situated at the corner of Ferry and East Pleasant streets, also bounded on John street, such lots being part of a plan recorded in the registry of deeds, Book 244, and where his executor conveyed lots on a "plan of lots at Cottage Park belonging to John Colby," recorded in the registry of deeds, Book 244, bounded southerly by John street and westerly by East Pleasant street, the plan referred to became incorporated in the deed and in the devise, so that the particulars applicable to such lots were to be regarded as if fully set out in the deed or will under which the grantee and the devisee respectively derived title. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 90, 91; Dec. Dig. § 10.*] 4. BOUNDARIES (§ 21*)-ESTOPPEL (§ 22*)-LoCATION OF PRIVATE WAY-OWNERSHIP OF SOIL. The grantee under an executor's deed of lots bounded on a private street as shown by a recorded plan owned the soil thereof opposite his land to the center of the way, with the right of way over the other half, although as located it was occupied in part by the barn of the testator; the executor being estopped from denying such location. [Ed. Note. For other cases, see Boundaries, Cent. Dig. § 131; Dec. Dig. § 21;* Estoppel, Cent. Dig. §§ 27-51; Dec. Dig. § 22.*] 5. EASEMENTS (§ 44*)-RIGHT OF WAY-EXTENT OF RIGHT TO USE. A grantee of land bounded by a private way had the right to the use of the surface for the usual purposes of such a way, and the right to enter upon and to prepare it for that use. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.*] Appeal from Superior Court, Essex County. Bill by Otto W. Kaatz against Philip J. Curtis and others to establish John street, in Lawrence, as a private way. Decree for plaintiff, and defendants appeal. Affirmed. Knox & Walsh, of Lawrence, for appellants. Sweeney & Cox, of Lawrence, for appellee. DE COURCY, J. [1, 2] The only question before us on this appeal from the final decree is whether the decree is within the scope of the bill and is supported by the facts found by the master. Burt & Co. v. Coes & Young Co., 212 Mass. 134, 98 N. E. 596. The record is not clear. The testimony of certain witnesses, referred to in his report as being annexed thereto, is not in fact printed; and the same is true of some of the exhibits in the case. We can consider the printed statement of facts agreed upon by counsel only so far as it appears to embody the evidence that was before the judge whose decree is appealed from. Robinson v. Brown, 182 Mass. 266, 65 N. E. 377. There were objections to the master's report, but so far as appears in the record no exceptions were filed. [3] The master finds the following facts: One John Colby was the owner of a large tract of land in Lawrence and attempted to dispose of it in small parcels or building lots. At different times he made plans of all and of portions of the tract, and recorded some of them. Colby died October 22, 1908. By his last will he devised to Christine Hanson (now Christine Curtis, and herein called the defendant), "two lots of land with buildings thereon situated at the corner of Ferry and East Pleasant streets, also bounded on John street, said lots being lots A and B on a plan of 'lots at Cottage Park belonging to John Colby,' dated April, 1903, and recorded in the registry of deeds for the Northern district of Essex, Book 244, page 600." The executor of Colby's will, under a license obtained from the probate court, by deed dated January 3, 1911, conveyed to the plaintiff "lots 150 and 161 on 'plan of lots at Cottage Park belonging to John Colby,' which said plan being (sic) recorded in the registry of deeds for the North district of Essex, Book 244, page 600. Lots 150 and 161 are bounded and described as follows: Southerly by John street one hundred sixty (160) feet; westerly by East Pleasant street forty (40) feet; northerly by land of parties unknown one hundred sixty (160) feet; and easterly by Midland street forty (40) feet." The master's report specifically states: "I find that both the plaintiff and the defendants took title according to the description contained in the plan recorded in Book 244." [4] By a well-settled rule of construction the plan referred to became incorporated in the deed to the plaintiff and in the devise to the defendant; and the particulars appearing thereon and applicable to these lots are to be regarded as if fully set forth in the instruments, under which they respectively derive title. As between these parties the location and dimensions of the private way designated John street is fixed by the plan. Each owns the soil thereof opposite his land to the center of the way, with a right of way over the other half. Morgan v. Moore, 3 Gray, 319; Farnsworth v. Taylor, 9 Gray, 162; Boston Water Power Co. v. Boston, 127 Mass. 374; McKenzie v. Gleason, 184 Mass. 452, 69 N. E. 1076, 100 Am. St. Rep. 566; New England Structural Co. v. Everett Distilling Co., 189 Mass. 145, 75 N. E. 85; Gould v. Wagner, 196 Mass. 270, 82 N. E. 10; Downey v. Hood, 203 Mass. 4, 89 N. E. 24. As Colby, the owner of the entire tract, saw fit to define John street on this plan as running through land occupied in part by his barns, the defendant who succeeds to his title is estopped, as against this plaintiff, from denying the location of the way so established. [5] The defendant's contention that the street as now used, encroaching upon the land of the plaintiff, has been substituted as a public way by prescription for the private way defined by the plan, is disposed of by the finding of the master that the travel thereon has not ripened into a right of way or easement. In the absence of the evidence we cannot say that this finding is wrong. As John street is not a public but merely a private way, the plaintiff has a right to the use of the surface for the usual purposes of such a way and a right to enter upon and prepare it. for that use. See Atkins v. Boardman, 2 Metc. 457, 467, 37 Am. Dec. 100. Decree affirmed. (215 Mass. 299) WHITE v. UNDERWOOD et al. TRIPLER et al. SAME v. HUB- Petitions by William White, sole trustee under the will of John C. Hubbard, deceased, against Grace K. Underwood and others, against Anna T. Tripler and others, and against Mercedes Hubbard and others, brought upon the decease of Anna M. Hubbard, life tenant, for the determination of the person entitled to the remainder over of the trust estates, and the proportions to which they were entitled. Cases consolidated and reserved by a single justice of the Supreme Judicial Court. Will construed, and decree made determining the persons entitled to the remainder and their proportions therein. Charles T. Gallagher and Fred A. Fernald, both of Boston, for A. T. Tripler and P. S. SAME V. Hubbard. Albert M. Lyon, of Boston, for Mercedes Hubbard and others. Robert H. Gardiner, Jr., and John H. Sherburne, both of Boston, for Grace K. Underwood and others. (Supreme Judicial Court of Massachusetts. Suffolk. June 18, 1913.) 1. WILLS (§ 524*)-CONSTRUCTION-TIME OF DETERMINING CLASS. Where there is a limitation over to a class designated as the testator's heirs at law, the persons who take are those that answer the description at the time of the testator's death, unless a different intention is manifested by the will. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1116-1127; Dec. Dig. § 524.*] 2. WILLS (§ 439*) - CONSTRUCTION INTENTION OF TESTATOR. The cardinal rule in the interpretation of wills is that the intention of the testator shall prevail, provided it is consistent with the rules of law. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*] DE COURCY, J This is a petition for instructions by the sole trustee under the will of John C. Hubbard, brought upon the decease of the life tenant for the determination of the persons entitled to the remainder over of the trust estate, and the proportions to which those persons are entitled. By the seventh clause of his will, after making certain provisions for the payment to his children of the income of the trust estate, the testator provided as follows: "Up on the death of the said Anna M. Hubbard, whenever it shall take place, this trust shall cease; and my said trustees, and the sur 3. WILLS ($ 441*)-CONSTRUCTION CIRCUM-vivors and survivor of them, shall then pay STANCES KNOWN TO TESTATOR. To ascertain the testator's intention, it is necessary to consider the particular language of each will, and its general purpose, in the light of the circumstances known to the testator. [Ed. Note.-For other cases, see Wills, Cent. Dig. 958; Dec. Dig. § 441.*] from the said trust estate, or the proceeds thereof, all debts and demands, if any, which shall exist upon or against the same, and distribute all the remainder thereof among my heirs at law, according to the statutes which shall then be in force in said common 4. WILLS (§ 524*)-GIFT TO HEIRS AT LAW-wealth regulating the distribution of intesTIME OF DETERMINING CLASS. A will provided that upon the death of a daughter, "whenever it shall take place," the trust for the payment of income to children should cease, and that the trustee should "then" pay all debts and distribute all the remainder thereof among his heirs at law according to the statutes which should then be in force regulating the distribution of intestate estates, and expressly forbidding a taking by the wife and children of a son. Rev. Laws, c. 133, § 1, provides that real property shall descend in equal shares to the children of an intestate and to the issue of any deceased children by right of representation. Held, that the intention was that the remainder should go to his heirs at law at the death of the daughter, and not to his heirs at his own death, and that the distribution was to be per capita among those of equal degrees of relationship, so that under the statute the property went in equal shares to the children and to the heirs of a deceased son. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1116-1127; Dec. Dig. § 524.*] Case Reserved from Supreme Judicial Court, Suffolk County. tate estates." The main question presented is whether the "heirs at law" of the testator to whom the remainder is given, are to be determined as of the date of his death or as of the time for distribution. [1-3] Admittedly the general rule of construction is that where there is a limitation over to a class designated as the testator's heirs at law, the persons who take are those that answer the description at the time of the testator's death, unless a different intention is manifested by the will. Various reasons have been given for this rule, such as the leaning of the law towards vested rather than contingent remainders, and, more recently, the fact that heirs at law by the very meaning of the words are usually those persons who inherit real property immediately on the death of the owner if he dies intestate. Wood v. Bullard, 151 Mass. 324, 25 N. E. 67, 7 L. R. A. 304. Heard v. Read, 169 Mass. 216, 47 N. E. 778. Whatever its basis | children. Special provision was made for it must not predominate to defeat what appears from the whole will to have been intended by the testator. As was said by Hammond, J., in McCurdy v. McCallum, 186 Mass. 464, 469, 72 N. E. 75, "The cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law." And to ascertain that intention it is necessary to consider the particular language of each will, and its general purpose, in the light of the circumstances known to the testator. [4] It seems to us that the obvious meaning of the language used in this will shows it to be the intention of the testator that the remainder should go to those who would be his heirs at law at the death of his daughter Anna, and not to those who were his heirs at the date of his own death. The date of her death as indicating the time of vesting the remainder is emphasized: "Whenever it shall take place," the trust is to cease, and the property is to be distributed "then." Harding v. Harding, 174 Mass. 268, 54 N. E. 549. By the express words of the clause in question the distribution is to be made according to the statutes "which shall then be in force." He well may have anticipated, what has proved to be the case, that the persons who would share in the distribution, and the proportion they would take under the statutes that would be in force at the termination of the trust would be different from those who would take under the statutes existing at the time of his own death. It is unreasonable to assume that he intended to have the persons in whom the remainder vested ascertained under the law existing at one time and to have the manner and proportion of the distribution among those persons determined at another time by a different statute. her support during her lifetime, and at her death the trust was to terminate. In this connection we may point out that if the will were construed as vesting the remainder in those who were the heirs at the time of the testator's death, the decease of Gorham during the life tenancy might result in his wife and children taking, through Anna, a part of the remainder; and this the codicil expressly forbids. Heard v. Read, 169 Mass. 216, 47 N. E. 778; Fargo v. Miller, 150 Mass. 225, 22 N. E. 1003, 5 L. R. A. 690. As to the wife and issue of Gorham E. Hubbard, it seems clear from the explicit terms of the codicil that even the later wife and issue are excluded. It follows that the decree of the probate court must be reversed. We are of opinion that the true construction of the will is that the ultimate remainder of the estate is to be distributed among those who were heirs of John C. Hubbard on April 9, 1911, when his daughter Anna M. died, excepting those who who would claim through his son Gorham L. Hubbard, and that the distribution is to be per capita among those of equal degree of relationship. In other words one-fifth goes to each of his living grandchildren Anna T. Tripler, Grace K. Underwood, Frank P. Kennard, and Arthur W. Kennard, and the remaining onefifth is to be divided among the heirs of his deceased grandson William P. Kennard. R. L. c. 133, § 1; Peck v. Carlton, 154 Mass. 231, 28 N. E. 166; Welch v. Brimmer, 169 Mass. 204, 47 N. E. 699; Heard v. Read, 169 Mass. 216, 47 N. E. 778; Crapo v. Price, 190 Mass. 317, 76 N. E. 1043; Brown v. Wright, 194 Mass. 540, 80 N. E. 612; Boston Safe Deposit Co. v. Blanchard, 196 Mass. 35, 81 N. E. 654; Sias v. Chase, 207 Mass. 372, 93 N. E. 802. Decree accordingly. (215 Mass. 226) In re PARKER. (Supreme Judicial Court of Massachusetts. Suffolk. June 17, 1913.) 1. WILLS (§ 205*)-CONTROVERSY-BILL FOR LEAVE TO COMPROMISE-TIME. Where a will, though offered for proof in tion directing the executor and trustee therethe probate court, had not been allowed, a petiunder to adjust a controversy in regard to it according to the terms of a compromise agreement entered into by the heirs and the next of kin was premature. This view, that the testator intended the remainder to vest in those persons, not expressly excluded, who would have been his heirs at law if he had died on the date of the death of Anna M. Hubbard, is confirmed by other considerations, some of which may be mentioned. It is significant that there are no words of present gift to the heirs, but the distribution is made by way of a direction to the trustees "to distribute all the remainder." Crapo v. Price, 190 Mass. 317, 322, 76 N. E. 1043. More conclusive is the fact that the testator by implication excludes the heirs and devisees of his daughter Anna from taking any interest in the remainder after her life estate. For it seems clear to us that the testator truste under a will be authorized and directed A petition praying that the executor and intended to exclude them. Anna M. was a to adjust a controversy according to the terms single woman and 49 years of age when her of a compromise between the heirs and the next of kin of the testator cannot be maintained, father died. He undoubtedly anticipated where the executor and trustee, who by the that she would die unmarried or without terms of the compromise was to be eliminated [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 507, 509-512, 561; Dec. Dig. § 205.*] 2. EXECUTORS AND ADMINISTRATORS (§ 515*)PETITION FOR LEAVE TO COMPROMISE-PARTIES. |
