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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 [7] 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.

[4, 5] The unrecorded plan which this re- Carnes v. Howard, 180 Mass, 569, 63 N. E. spondent caused to be prepared showed that 122. at the date of the contract the land had been So ordered. 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

(216 Mass. 12) building stood, was found by the judge when POOLE v. BOSTON & M. R. R. dealing with the third request to have been (Supreme Judicial Court of Massachusetts. sufficient. The true purpose and intention of

Franklin. Oct. 22, 1913.) the owner not only were material, but when

1. TRIAL ( 63*)-ORDER OF PROOF-ADMISascertained are decisive. Pollock V. Morri

SION IN REBUTTAL. son, 176 Mass. 83, 57 N. E. 326. The acts of

The presiding judge can properly exclude the respondent in causing iron pins or stakes evidence in chief when offered in rebuttal. to be placed at the corners of the lots, and [Ed. Note.-For other cases, see Trial, Cent. the laying out of the street, coupled with the Dig. 88 151–153; Dec. Dig. $ 63.*] previous conveyance of two lots, and the 2. RAILROADS ($ 347*)—ACTION FOR INJURY subsequent mortgage of the lot in question AT CROSSING-ADMISSIBILITY OF EVIDENCE. under descriptions corresponding with the

In an action for an injury by a freight plan, while furnishing strong presumptive road crossing, the admissibility of a rule of the

train colliding with plaintiff's buggy at a railproof of a division into building lots recogniz- company requiring trainmen to be on top of ed and dealt with independently as such, were trains in approaching yard limits, passing railhowever to be considered in connection with road grade crossings, drawbridges, and other

points where the train was required to stop, his testimony, that he regarded the unsold also in descending heavy grades, and at places portion as constituting but a single tract. where the train was liable to break apart, and Orr v. Fuller, 172 Mass. 597, 52 N. E. 1091. requiring one of the crew to ride in the monitor [6] A further provision, however, is found of the caboose at all times, was rightly limited

to the last sentence, in the absence of evidence in section 6, that the omission to state the of conditions rendering any of the rest applicanumber of days where the description given ble. is sufficiently accurate for identification, if [Ed. Note.- For other cases, see Railroads, there is no intention to mislead, and the par-Cent. Dig. 88 1124-1137; Dec. Dig. $ 347.*] ties entitled to notice have not been in fact 3. RAILROADS ($ 299*) — "RAILROAD GRADE thereby misled, and in section 7, that an “in

CROSSING." accuracy in the statement relative to the where a railroad crosses a highway at grade,

By a railroad grade crossing is meant, not property to which it attaches if such proper- but where two lines of railway cross at grade. ty can be reasonably recognized from the

[Ed. Note. For other_cases, see Railroads, description," shall not affect the validity of Cent. Dig. $$ 954, 958; Dec. Dig. $ 299.*]

4. EVIDENCE (8 493*)—ACCIDENTS AT CROSS-, tween a buggy, in which the plaintiff was ING-OPINION EVIDENCE.

riding with one Baker, and a freight train Where, in a railway

a railway crossing accident caused by a freight train colliding with plain of the defendant, at a grade crossing on Watiff's buggy, the contention of defendant was ter street in Orange. The accident occurred that the horse was driven into the train, it was at about 11 o'clock at night, May 17, 1911. not error to refuse to permit a witness to testi- Baker was killed. The case has been here fy that he knew the horse and his qualities, and that he could not be driven into a train, since before, and is reported in 212 Mass. 596, 99 it was opinion evidence.

N. E. 471. At the previous trial the presid[Ed._Note. For other cases, see Evidence, ing judge, at the close of the evidence, diCent. Dig. $$ 2275-2282; Dec. Dig. § 493.*] rected a verdict for the defendant, subject 5. TRIAL ($ 63*)-ORDER OF PROOF-REBUTTAL to the plaintiff's exceptions. The exceptions EVIDENCE.

were sustained and the case was sent back Where the plaintiff himself had testified in for another trial, at which there was a verchief as to his horse's qualities, evidence of another witness to the same effect was in part dict for the defendant. The case is here cumulative, and not in rebuttal, and properly now on exceptions by the plaintiff to the adexcluded.

mission and exclusion of evidence and to [Ed. Note. For other cases, see Trial, Cent. certain rulings that were given and refused, Dig. 88 151-153; Dec. Dig. 8 63.*]

and to certain portions of the charge. 6. TRIAL ($ 267*)-INSTRUCTIONS-REQUESTS.

[1] 1. Assuming that the witness would The presiding judge was not required to give requests in the exact language in which have answered that when the team started made, but it was sufficient if he gave them in to go across the main line there was nothing substance and effect.

with lights on it coming down the track, it [Ed. Note. For other cases, see Trial, Cent. is plain that the evidence would have been Dig. $$ 668-672, 674; Dec. Dig. § 267.*] 7. TRIAL ($

admissible on the question of the plaintiff's ($ 244*) - INSTRUCTIONS – UNDUE due care and the defendant's negligence as


The presiding judge was not obliged to part of the plaintiff's case in chief, and the single out one phase of the case, because re- presiding judge could therefore properly exquested to do so, and lay upon it a dispropor- clude it when offered in rebuttal. Burnside tionate emphasis as compared with other matters involved in, and necessary to a proper con

V. Everett, 186 Mass. 4, 7, 71 N. E. 82; sideration of, the case.

Eames v. Whittaker, 123 Mass. 342. [Ed. Note. For other cases, see Trial, Cent. [2, 3] 2. The admissibility of the rule that Dig. $8 577-581; Dec. Dig. § 244.*]

was offered in evidence was rightly limited 8. RAILROADS ($ 350*)—ACCIDENTS AT CROSS- to the last sentence of it. The exceptions $ )

recite that there was "no evidence that there Where, in an action for an injury caused by the rear end of a train, which had broken were yard limits or railroad crossings at apart, colliding with plaintiff's buggy in the grade, or drawbridges, and the train was not nighttime at a railroad crossing, the evidence required to stop at Orange, nor was there a was conflicting as to the cause of the breaking heavy grade." And it did not appear that apart, it could not be ruled as a matter of law the crossing was a place where a train was that defendant was negligent, though, in the absence of explanation; the jury would be war- liable to break apart. None of the condiranted in inferring negligence.

tions, therefore, which rendered any of the [Ed. Note. For other cases, see Railroads, rest of the rule applicable existed. By “railCent. Dig. $1152–1192; Dec. Dig. $ 350.*]

road crossings at grade” is meant, we think, 9. RAILROADS (8 340*)-ACCIDENTS AT CROSS- not where a railroad crosses a highway at INGS.

If the failure of a trainman to be in the grade, but where two lines of railway cross monitor of the caboose, as required by the rules at grade. It was within the discretion of the of the company, when it broke apart from the presiding judge as to the conduct of the trial train and collided with plaintiff's buggy at a to admit the last sentence of the rule in evi. railroad crossing, contributed in any way to the dence when he did. . accident, it was some evidence of negligence; if it did not so contribute, it was of no conse

[4, 5] 3. From marks and indications on quence.

the caboose which was the last car, and on [Ed. Note. For other cases, see Railroads, the two cars next ahead of it, the defendant Cent. Dig. $$ 1102–1104; Dec. Dig. § 340.*]

contended that the horse was driven into the

train. Exceptions from Superior Court, Franklin

To meet this the plaintiff offered to County; Charles U. Bell, Judge.

show in rebuttal, by a brother of the man Action by Edwin Poole against the Boston who was driving the horse, that he had & Maine Railroad. Judgment for defendant, driven the horse and had “known it for a plaintiff' excepts. Exceptions overruled.

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. with the horse it could not be driven into a Dana Malone, of Boston, and Chas. N. Stod- moving train.” The presiding judge thought dard, of Greenfield, for defendant.

that what was offered was opinion evidence

and excluded it. The plaintiff himself had MORTON, J. This is an action of tort testified in chief as to the horse's qualities, so to recover for personal injuries received by that the evidence that was offered was in part the plaintiff as the result of a collision be- / at least cumulative and not in rebuttal and


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

might properly have been excluded for that, gence. This he could not do. If the facts

But we think that it cannot be said in regard to the breaking apart of the train that it was wrongly excluded for the reason and of the collision had been agreed or were given by the presiding judge. The witness uncontradicted, then it would have been a was testifying not to a fact but to what was question of law whether they warranted a in effect his belief or opinion, and, assuming finding that the defendant was negligent. that the matter was one on which expert But the parties were at issue as to the cirtestimony was admissible, the presiding cumstances under which the train broke judge may have thought, and for aught that apart and the collision took place, and it appears, did so think, that the witness was was a question

was a question for the jury whether the not sufficiently qualified as an expert to breaking apart was due to negligence on the render his opinion admissible, and that was part of the defendant or not. In the absence a question for him to determine. Hawks v. of any explanation as to what caused the Charlemont, 110 Mass. 110.

train to break apart, the jury would have [6-8] Requests for rulings were made by been warranted in finding that the breaking the plaintiff and the defendant respectively. apart was of itself evidence of negligence, or, Some of them were given and others refused. as stated in the former opinion, was direct Two of the requests made by the plaintiff, evidence of negligence, Griffin v. Boston & the fifth and sixth, though they might have Albany R. R., 148 Mass. 143, 19 N. E. 166, been refused in the form in which they were 1 L. R. A. 698, 12 Am. St. Rep. 526; but it made, were in substance given with modifica- could not be so ruled as matter of law. It tions. None of the requests that were given, might be possible that the train broke apart were given in the exact language in which from causes for which the defendant could they were made. The presiding judge was not fairly be held accountable. The innot obliged to do that. It was sufficient if he structions that were given were sufficiently gave them in substance and effect. Neither favorable, to say the least, to the plaintiff. was he obliged to single out one phase of The jury were told that “the fact of the acthe case because requested to do so and lay cident with the surrounding circumstances" upon it a disproportionate emphasis as com- was sufficient to raise some presumption of pared with other matters involved in and negligence, but they were not to rely upon necessary to a proper consideration of the presumptions alone but were to take the case. Taking the case as a whole, it does whole evidence and see whether it satisfied not seem to us that there was any reversible them by a fair preponderance that the deerror. There was evidence tending to show fendant had failed in some duty it owed to that the train broke apart near the rear end the plaintiff and was negligent. We think at or in the neighborhood of the crossing. that the jury must have understood from this The parties differed as to where on the line that the fact that the train broke apart afof the railroad and where in the train the forded a presumption of negligence on the breaking apart occurred. It appeared that it part of the defendant and could be so regardwas a common thing for a train to breaked by them in considering the case. They apart. The plaintiff contended that the acci- were not told that unexplained they could dent was caused by a collision between the find evidence of negligence in the breaking rear end of the train which had broken off apart of the train, which was all that the and the horse and buggy in which he was plaintiff was entitled to, but were told in efriding, and in his second request asked the fect that the accident itself, which was causpresiding judge to rule “that if the jury find ed or could have been found to be caused, by that the train broke apart and detached cars the breaking a part of the train, could be reproceeded over the crossing without lights garded by them as presumptive evidence of or warning signal, and came in collision with negligence. This was, as we have said, suffithe team in which the plaintiff was riding, ciently favorable to the plaintiff. this would be direct evidence of negligence The facts recited in the third and fourth on the part of the defendant." The presid- rulings requested, if they were facts, would ing judge refused to rule as thus requested. have constituted evidence of negligence on The ruling asked for was evidently based the part of the defendant and of due care upon the following language from the former on the part of the plaintiff, but would not opinion (212 Mass. 596, 598, 99 N. E. 471, have warranted the presiding judge in direct472): “And they [the jury] might find direct ing the jury as matter of law to return a evidence of negligence in conduct which al- verdict for the plaintiff if the jury found, as lowed cars detached from a train, without requested in the third ruling, that the plainlights or warning signal and with the rear tiff was struck by the second section of the brakeman absent from his post of duty, to train, or in ruling as requested in the fourth pass over an unguarded grade crossing.” ruling that the facts there recited constiBut the ruling requested went farther than tuted negligence on the part of the defendant this, and instead of asking the presiding as matter of law, and the requests were for judge to rule that the jury could find direct these reasons properly refused. evidence of negligence in the conduct de- [9] The fifth and sixth rulings requested scribed, asked him to rule that it constituted were to the effect that if the brakemen were

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direct evidence of negligence on the part of agreement between them to divide the proceeds; the defendant. These, as already observed, if void at law, was enforceable in equity, and might have been refused in the form in which the sale by mutual consent having severed their

joint ownership, the husband held her portion they were presented, for reasons previously in trust for her, and she was therefore entitled stated in connection with the second re- to maintain a bill to recover the amount withquest. But the presiding judge gave them held, if intact, or, if converted, to compel restiin substance with the modification that the tution from the husband's estate.

[Ed. Note. For other cases, see Trusts, Cent. jury might consider the position of the brake- Dig. § 154; Dec. Dig. $ 103.*] men if they found that it had anything to do 5. TRUSTS ($ 357*)—FOLLOWING TRUST PROPwith the accident. "If, for instance," the

ERTY-VOID GIFT. presiding judge said, "a brakeman under the A husband and wife, having sold certain rules should have been in the monitor would real and personal property owned by them as that have helped the plaintiff and saved this joint tenants, the proceeds were paid to him accident? If it would, the fact that he was between them; but he, instead of doing so, in

under an agreement that they should be divided not there is some evidence of negligence; vested the entire proceeds, together with all his if his being there would not have helped the other property, in certain real estate, the title plaintiff, then it is of no consequence in this to which he caused to be taken in the name of

his granddaughter, intending to make a gift to case.” This was correct.

her. Held, that the granddaughter was not a We discover no error in the manner in purchaser for value, and hence the wife was enwhich the presiding judge dealt with those titled to follow the fund, and impress the trust requests of the defendant that were given, on the property into which her share had been nor do we discover any error in the rest of

[Ed. Note. For other cases, see Trusts, Cent. the charge.

Dig. SS 539-552; Dec. Dig. § 357.*] Exceptions overruled.

Appeal from Superior Court, Franklin

County. (216 Mass. 1)

Action by Mary E. Woodard against ElWOODARD v. WOODARD et al.

bridge G. Woodard and others. Judgment (Supreme Judicial Court of Massachusetts. for defendants, and complainant appeals. Franklin. Oct. 22, 1913.)

Reversed as to defendants Elbridge G. Wood1. EVIDENCE (8 80*)—COMMON LAW-FOREIGN ard and Mabel S. Woodard. STATES. In the absence of proof as to the laws of

Frank J. Lawler, of Greenfield, for appelanother state, where certain transactions in lant. Chas. S. Ballard and Chas. J. Weston, controversy occurred, it will be presumed that both of Springfield, for respondents. the common law of such state was the same as that of the forum, [Ed. Note. For other cases, see Evidence,

BRALEY, J. [1-3] The question for deciCent. Dig. § 101; Dec. Dig. 8 80;* Common sion is whether, upon the pleadings and the Law, Cent. Dig. f 14.]

master's report, to which no exceptions have 2. HUSBAND AND WIFE (§ 14*)–CONVEYANCE been taken, the plaintiff is entitled to equiOF REAL PROPERTY-ESTATE CREATED-EN- table relief as to either or all of the defend


ants. The defendant Elbridge G. Woodard Where a husband and wife were named as such, or known to the grantor or vendor to be is the husband of the plaintiff, and no evisuch, a conveyance to them of either real 'ordence having been introduced as to the laws personal property ordinarily creates an estate of the state of Vermont where the transacby the entirety at common law, subject to the tions out of which the controversy arises right of survivorship, by which each is secure against an impairment of rights through the took place, we assume its common law to be sole act of the other.

the same as our own. Callender, McAusland [Ed. Note.-For other cases, see Husband and & Troup Co. v. Flint, 187 Mass. 104, 72 N. E. Wife, Cent, Dig. $$ 71-86, 88, 89; Dec. Dig. 345. It is plain, from the master's very full § 14.*]

and specific findings, that the plaintiff's hus3. HUSBAND AND WIFE (8 14*)—REAL AND band fraudulently collected and retained to


his own use all the moneys derived from the A husband and wife may hold real or per- sale of certain real and personal property in sonal property, even at common law, in joint which she is found to have had a joint and tenancy, as distinguished from an estate by the equal interest. By our decisions where husentirety.

[Ed. Note. For other cases, see Husband and band and wife are named as such, or are Wife, Cent. Dig. $$ 71-86, 88, 89; Dec. Dig. & known to the grantor or vendor to be such, 14.*]

ordinarily, the conveyance to them of either 4. TRUSTS (8 103*) - CONSTRUCTIVE TRUST - real or personal property creates at common PERSONAL PROPERTY-HUSBAND AND WIFE. law an estate by the entirety, subject to the

A husband and wife, having owned certain right of survivorship, by which "each is sereal and personal property as joint tenants, sold the same; the check for the proceeds being cure against an impairment of rights through drawn payable to the husband, but subject to a the sole act of the other.” Donahue v. Hubmutual understanding that it should be divided bard, 154 Mass. 537, 28 N. E. 909, 14 L. R. A. between them and that she should receive the 123, 26 Am. St. Rep. 271; Phelps v. Simons, portion belonging to her. He collected the proceeds, refused to pay over her portion, and in- 159 Mass. 415, 34 N. E. 657, 38 Am. St. Rep. vested it in other property. Held, that the | 430; Boland v. McKowen, 189 Mass. 563, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

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561, 76 N. E. 206, 109 Am. St. Rep. 663; 1 90 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 ; No transfer appears to have been made di- Adoue v. Spencer, 62 N. J. Eq. 788, 49 Atl. rectly or indirectly from one spouse to the 10, 56 L. R. A. 817, 90 Am. St. Rep. 484 ; other. The business dealings between third Metzker v. Bonebrake, 108 U. S. 66, 2 Sup. parties and themselves in the purchase, sale Ct. 351, 27 L. Ed. 654; Stickney v. Stickney, and mortgaging of the farms, and the pur- 131 U. S. 227, 9 Sup. Ct. 677, 33 L. Ed. 136 ; chase and sale of live stock as set forth in Garner v. Second Nat. Bank of Providence, the report, were on the sole footing of a 151 U. S. 420, 14 Sup. Ct. 390, 38 L. Ed. 218. joint tenancy or ownership, even if for con- [5] The subsequent transactions with his venience the title appears to have been taken son, Frank E. Woodard, as detailed in the sometimes in the name of the husband, and report, disclose his purpose not merely sometimes in the name of the wife. It can- wrongfully to appropriate the plaintiff's monnot be inferred or assumed, in view of the ey or share, but to deprive her of all redress language of the report, that the plaintiff ever by placing the property beyond her reach. intended that the entire proceeds because But if the son seems to have acted only as of the marital relation should pass into his an innocent intermediary, and the bill as to control or become his property. Nor did this him and his wife the defendant, Margaret E. defendant assert any claim thereto' after the Woodard, was properly dismissed, the transamended bill under which the case was tried fer and arrangements made through his had been filed. Indeed he never answered agency resulted in the purchase by Elbridge the amended bill, and the master states that G. Woodard of a parcel of real property, he did not attend the hearings, nor was he the title to which he caused to be taken in the represented by counsel, and that as to him name of his granddaughter, Mabel S. Woodthe bill should be taken for confessed. It is ard, the remaining defendant. The purchase also conceded in the brief for the defendants price consisting in part of the unexpended that he could not lawfully convert the proceeds of the check which were more than amount in his possession due to the plaintiff. enough to satisfy the plaintiff's share, also By the great weight of authority husband and exhausted all of the husband's money, and it wife where the intention is unmistakably appears from the report that at the time he shown, can hold real or personal property possessed no other assets. It is further even at common law in joint tenancy as dis- found that the conveyance made without the tinguished from an estate by the entirety. request, knowledge or consent of the grantee, Hoag v. Hoag, 213 Mass. 50, 53, 99 N. E. 521, was intended by her grandfather as a gift and authorities cited; Fulper v. Fulper, 54 in so far as "he had authority and power" N. J. Eq. 431, 34 Atl. 1063, 32 L. R. A. 701, to make a gift. A voluntary transfer of this 55 Am. St. Rep. 590; Miner v. Brown, 133 nature stripping him of his property was N. Y. 308, 31 N. E. 24; Hunt v. Blackburn, voidable by those to whom he then was in128 U. S. 464, 9 Sup. Ct. 125, 32 L. Ed. 488; debted or under obligations to account for 21 Cyc. 1198, note 74.

moneys fraudulently appropriated, and Ma[4] The check for the proceeds of the final bel s. Woodard not having been a purchaser sale of the property, both real and personal, for value the real estate standing in her although made payable to him, was drawn name can be reached and applied by the subject to the mutual understanding and plaintiff in satisfaction of her equitable deagreement that it should be collected and mands. Beal v. Warren, 2 Gray, 447, 456 ; divided by both, and that she should receive Winchester v. Charter, 12 Allen, 696; Id., the portion belonging to her. If by reason 97 Mass. 140; Id., 102 Mass. 272; Springof coverture this agreement at law was a field Inst. for Savs. V. Copeland, 160 Mass. nullity, yet in equity the actual intent and 380, 384, 385, 35 N. E. 1132, 39 Am. St. Rep. true understanding of the parties governs. 489; Atkins v. Atkins, 195 Mass. 124, 128, Wood v. Chetwood, 44 N. J. Eq. 64, 66, 14 129, 80 N. E. 806, 11 L. R. A. (N. S.) 273, 122 Atl. 21; 2 Story, Eq. Jur. (13th Ed.) § 1373. Am. St. Rep. 221; Hewitt v. Hayes, 205 The sale by mutual consent severed the joint Mass. 356, 361, 364, 91 N. E. 332, 137 Am. St. ownership. Williams v. Hensman, 1 Johns. Rep. 448; Newell v. Hadley, 206 Mass. 336, & H. 546, 557; Edwards v. Champion, 3 92 N. E. 507, 29 L. R. A. (N. S.) 908; Wenz DeG. M. & G. 202; Palmer v. Rich, [1897] v. Pastene, 209 Mass. 359, 95 N. E. 793; 1 Ch. 134. And the money belonging to the Bailey v. Wood, 211 Mass. 37, 97 N. E. 902, plaintiff not having been received as his own, Ann. Cas. 1913A, 950. The final decree disbut under an implied trust to account for it missing the bill as to Elbridge G. Woodard as her individual property, she can maintain and Mabel S. Woodard, who are the sole the bill to recover the amount withheld if defendants, must be reversed, and a decree intact, or if it is converted, to compel restitu- to be enforced against the property standing tion from his own estate. Atlantic Bank v. in the name of Mabel S. Woodard for the Tavener, 130 Mass. 407; Frankel v. Frankel, amount found due by the master, with in173 Mass. 214, 53 N. E. 398, 73 Am. St. Rep. terest and costs is to be entered, but its 266; Atkins v. Atkins, 195 Mass. 129, 80 N. form and terms are to be settled in the suE. 806, 11 L. R. A. (N. S.) 273, 122 Am. St. perior court.

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