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showed on their face that certain statutes Israel N. Keyes, deceased, upon their joint should have been set up in behalf of the peti- | bond as executors. Judgment for defendants. . tioner by his attorney in that action. It can

John S. Gould, for plaintiff. Henry F. not be assumed that the papers on their face Harris and Winfred H. Whiting, for defendwould have shown any such thing, and they

ants. are not made a part of the bill of exceptions. As we have already intimated, the excep

RUGG, J. This is an action duly brought tion to the refusal to admit a portion of the

in the name of the judge of probate for the Revised Laws in evidence is not well taken.

county of Worcester against Mary L. Keyes The court takes judicial notice of the laws

and George N. Keyes, as executors of the without their introduction in evidence. The

will of Israel N. Keyes, upon their joint bond entry must be:

as such executors. The declaration alleges, Exceptions overruled.

as breaches of the bond: (1) A management

of the estate without authority of law or of (193 Mass. 38)

the will, so as to gather into the hands of the FORBES, Probate Judge, v. KEYES et al. executors large. sums of money from rents (Supreme Judicial Court of Massachusetts.

and sales of real estate of the testator. (2) Worcester. Oct. 16, 1906.)

A failure to account to the probate court at 1. EXECUTORS AND ADMINISTRATORS-LIABIL

the expiration of one year from the date of ITY ON BONDS-OCCUPATION OF REAL Es their bond. (3) A demand by the legatees TATE BY EXECUTOR.

of the executors at the expiration of one year Rev. Laws, c. 150, § 6, provides that, if real property has been used or occupied by an

from the date of their bond of the property executor, he shall account for the income there due them under the will, and a refusal of of as ordered by the probate court. Held, that

payment by the executors. (4) An ascerthe collection of rents of real estate by consent of devisees, and the occupation of real estate

tainment by accounting in the probate court by the executors, does not constitute a breach of the sums gathered into the hands of the of their bond.

executors from all sources, and a demand for 2. SAMEMUNAUTHORIZED SALE OF LANDS-EF payment to the legatees, and a refusal by the FECT ON RIGHTS OF DEVISEES.

executors. The defendants pleaded a general Where a will conferred no authority upon executors to make a sale of real estate, their

denial, and later George N. Keyes pleaded an conveyance did not affect the rights of devisees, adjudication of bankruptcy on March 29, 1904, provided they seasonably undertook to assert

and a discharge thereon on June 21, 1904. their rights.

The report shows that Israel N. Keyes died [Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, $$

April 23, 1897. The defendants were duly ap558, 559.)

pointed executors, and qualified by giving 3. SAME-BREACIL OF BOND-ESTOPPEL.

their bond, which was approved on May 11, Where executors had no authority to sell 1897. An inventory was duly filed, exhibiting real estate, but did so, and devisees, without

both real and personal estate of the testator. any objection, received the proceeds, they were estopped to claim that such action on the

Rents of the real estate were collected regupart of the executors constituted a breach of larly by the executors, until October, 1897, their bond.

when the defendant, Mary L. Keyes, removed 4. SAME_WAIVER OF BREACII.

to California, where she has since resided. Where executors failed to file an account

After this time she did not return to Massain accordance with the terms of their bond, the filing of an account thereafter, and its allowance chusetts, but she permitted George N. Keyes with the consent of all the interested parties, to transact all business connected with the amounted to a waiver of the prior breach of

estate, she having no personal part in the the bond. 5. SAME-ACTION ON BOND-CONDITIONS PRE

management thereof. At various times, beCEDENT.

fore and after October, 1897, the executors, Rev. Laws, c. 149, § 23, provides that if under a supposed and assumed authority to the probate court, on the representation of any

sell conferred by the will, executed and deperson interested in an estate, finds that an executor has failed to perform the conditions

livered as such executors deeds of divers parof his bond, it may authorize any creditor, leg cels of real estate belonging to the testator, atee, etc., aggrieved by such maladministration,

receiving large sums of money therefor. In to bring an action on the bond. Held, that the mere fact that an executor had failed to pay

August, 1903, certain legatees filed their pedistributive shares to the legatees did not war tition in the probate court asking for a conrant an action under the statute, prior to the struction of that portion of the will of the making of any demand for payment of the lega

testator which the executors had theretofore cies. 6. BANKRUPTCY-DEBTS DISCHARGED-FRAUD

assumed conferred the authority to sell real IN FIDUCIARY CAPACITY.

estate. Decree was duly entered thereon, Under the express provisions of Bankr.

from which no appeal was taken, to the effect Act July 1. 1898, c. 541, § 17, subd. 4, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], debts

that, there being sufficient personal estate to created by the fraud of a bankrupt while act pay the debts of the testator, funeral expenses ing in a fiduciary capacity are exempt from the and charges of administration, the will did operation of a discharge.

not authorize a sale of real estate. The sales Action by the judge of probate for the of real estate were made by the executors uncounty of Worcester against Mary L. Keyes der the legal advice that the will conferred ·and another, as executors of the will of authority to make such sales, and no objec

tion has been made at any time by any party breach of her bond of which the plaintiff can in interest to the validity of the sales, the ti now complain. tle conveyed or the amounts received there The first claim of the plaintiff is that the from, and a partial distribution of the pro estate has been so managed, without authorceeds of such sales and of other assets, indis ity of law or of the will, as to place in the criminately was made and accepted by the hands of the executors large sums of money beneficiaries under the will and receipts giv from rents and sales of real estate. The colen therefor, without objection. The amount lection of rents of real estate by consent of of such sales, after Mary L. Keyes left this the devisees, or the occupation of real estate commonwealth, amounted to more than $70, by one of the executors, which appears to 000.

have been the source of some of the rents On November 9, 1900, George N. Keyes filed charged against them in the accounts of these in the probate court the first account of the executors, is permitted by statute, and de administration of the estate, in response to

cisions of this court recognize money so rea citation from the probate court, Mary L.

ceived as assets properly in the hands of an Keyes not participating in nor having actual executor or administrator. Rev. Laws, c. 150, knowledge of the preparation of said ac $ 6; Stearns v. Stearns, 1 Pick, 157; Almy v. count. The caption was “The First Account

Crapo, 100 Mass. 218; Brooks V. Jackson, of Mary L. Keyes and George N. Keyes as

125 Mass. 307. It was no breach of the bond Rendered by the Latter." On November 4, for the executors to attempt to sell the real 1903, “The Second Account of Mary L. Keyes

estate. If the will conferred no authority and George N. Keyes as Rendered by the upon them to make the sale, then their act Said George N. Keyes" [as stated in the cap

in attempting to convey title was a nullity, tion) was filed in the probate court. The

and the rights of the devisees under the will latter account was prepared under the direc

were not affected thereby. A pretended contion of counsel for the estate, who was the

veyance made under an assumed power of agent of said Mary L. Keyes, she first know

sale conferred by a will, which by true coning of its preparation and filing some months

struction does not confer the power, all being afterwards. Both of these accounts were re

a matter of public record, cannot operate to ferred by the probate court to an auditor,

deprive the devisees of their title, provided who, under decrees not objected to, stated new

they seasonably undertake to assert it, and accounts for the executors. After some cor

do not accept the fruits of the sale. Thayer rections made by the auditor, and with items

V. Winchester, 133 Mass. 447. But all the of balance from the first account, which was

parties in interest have assented to the acalso allowed by the probate court, the second

count of the executors, by which they were account was by the consent of all interested

charged with the proceeds of the sales, and parties allowed by the probate court on No

the devisees have accepted and receipted for vember 27, 1903. The caption of this account

large sums of money received from these

sales of real estate and have at no time made as allowed by the court was “The Second AC

any objection to the validity of the sales, to count of Mary L. Keyes and George N.

the title conveyed or to the prices received. Keyes," and was for a period ending with the

Under these circumstances, the devisees are 1st day of October, 1903, the two acccounts to

estopped to claim that this action of the execgether covering the period from the date of

utors constituted any breach of the bond. the appointment of the executors to the last

The acquiescence of all the parties in innamed date. From decrees allowing these ac

terest has proceeded too far to permit them counts no appeal was taken. Subsequently now in this proceeding to question the proto the allowance of said accounts Mary L.

priety of these acts. Keyes by petition sought to be relieved from

The next breach of the bond alleged is a being jointly charged with her co-executor.

failure to account to the probate court. AlProceedings in this behalf were terminated

though no account was filed in accordance adversely to her after this suit was begun.

with the tenor of the bond, yet one account The second account showed a balance in the

was filed on the 9th of November, 1900, and hands of the executors of $14,845.78. Mary another on the 4th of November, 1903, and L. Keyes did not file an appointment of agent this second account was allowed with the as required by Rev. Laws, c. 139, § 8, until consent of all interested parties. An allowafter a petition had been filed for her re

ance of an account, under these circumstanmoval as executor, on the ground of such ces, was a waiver of all prior breaches of the failure, nor until August 1, 1903, since which

bond in not rendering an account, on the part time no proceedings have been had on this of all those consenting to the allowance. Mcpetition. Under the terms of the report, if Kim v. Harwood, 129 Mass. 75. Since the the evidence sustains the ruling of the su filing and allowance of the second account, perior court for the plaintiffs, judgment is to there has been before the bringing of the be entered against the defendant, Mary L. present suit no breach of the bond in not Keyes, for the penal sum of the bond; other accounting, as there has been no order of the wise, for the defendant. We are, therefore, court requiring an account, and one year had brought to the inquiry whether Mary not elapsed since the filing of the last prior L. Keyes, upon these facts, has made any | account. Rev. Laws, c. 149, § 1, par. 1, cl. 3.

The third and fourth allegations of breach p. 3428]; Crawford v. Burke, 195 U. S. 176, of the bond are of failures to pay to the 25 Sup. Ct. 9, 49 L Ed. 147. We do not legatees upon demand the property due them therefore consider any questions which the under the will. These allegations are not report might raise as to him. supported by any evidence, for the report The entry must be: shows that no demand has been made at Judgment for the defendant any time by any of the legatees and devisees for payment of the amounts due under the account, and there is no evidence that any

(192 Mass. 570) prior demand was ever made. It is to be ob

CARVILLE 7. COMMONWEALTH. served that no final account has been filed, (Supreme Judicial Court of Massachusetts. and that the last account was entitled and

Worcester. Oct. 16, 1906.) allowed as a second account. It is further 1. WATERS-RIGHT TO ICE-ADVERSE POSSESto be noted that, although the balance in the

810N-TIME. hands of the executors is made up partly of

Where petitioner's use of a pond for the

taking of ice, which right petitioner had acreceipts from sales of real estate, partly from quired by oral permission from his father, had rents of real estate, and partly of personal

not continued for 20 years when the commonproperty of the testator, and the residuum

wealth took the pond for a public use, petitioner

had not acquired the right to take such ice by of the estate is in part to be distributed adverse possession. among persons of a class (Rev. Laws, c. 141, 2. EMINENT DOMAIN-EASEMENTS IN GROSS $ 22), yet there has been no decree of the DAMAGES-ACTIONS-LIMITATIONS. probate court as to the persons to whom

Where plaintiff had acquired a right to take

ice from a pond under a license from his father payment should be made, or amounts to which

at the time the pond was condemned by the the several residuary legatees may be en commonwealth, plaintiff's right was a titled. Without discussing the bearing of easement in gross or a profit a prendre, which these two considerations upon the plaintiff's

was in interest in the real estate, for injury

to which plaintiff was required to sue within right to recover, we treat as the single ques

two years after the actual taking by right of tion under this branch of the case, whether eminent domain, as provided by St. 1895, p. a suit can be maintained upon a probate

573, c. 488, $ 14, as amended by St. 1899, p.

298, c. 342, Št. 1900, pp. 74, 75, c. 108, $$ 1, bond for a failure to pay shares in a residuum

2, St. 1901, p. 438, C. 498, and St. 1904, p. of a testate est

but a prior demand. 162, c. 186. It ann

by authority in this [Ed. Note.-For cases in point see vol. 18,

action cannot be Cent. Dig. Eminent Domain, $$ 783-787.] 1

ven by an executor

Report from Supreme Judicial Court, Wor. of his duties, for

cester County. ees on account of

Petition by Clarence Carville to recover a

ithout proof of a

damages against the commonwealth of Massa. pre

said in Prescott

chusetts for the alleged taking of petitioner's V. 1

ntil such a de

property by the metropolitan water board. man

reasonably said

Verdict was rendered in favor of defendant, to ha

ch of his trust,

and the case was reported to the full court. or ev

To the same

Judgment on verdict. point

c. 496; Dawes V. Sw

v. Boyden, 3 W. A. Gile, for petitioner. Dana Malone, Pick.

3 Pick. 374;

Atty. Gen., and W. P. Hall and Fred T. Leland

315; New Field, Asst. Attys. Gen., for the Commoncomb V

Conant v.

wealth. Stratton

Choate v. Jacobs, 1

V. Elwell. KNOWLTON, C. J. The petitioner claims 145 Mass

though it damages under St. 1895, C. 488 and the may be 1

s having amendments thereto, for property taken by given a jo

Keyes is the metropolitan water board for the Wasjointly resi

as may

chusett reservoir. See Carville v. Com., 189 have come

(Ames Mass. 273, 75 N. E. 639. The instrument of v. Armstron

rt does taking was recorded on May 20, 1898. The not disclose

tion or

property is an alleged right to use a pond on individual wi

in the land formerly belonging to the petitioner's respects point

on or father, Daniel W. Carville, for the cutting otherwise, as

Rev. of ice for the market. This land was taken Laws, c. 149, 82

hand by the instrument referred to, and it was for payment of

ary also conveyed by Daniel W. Carville to the now to decide

а commonwealth by a duly executed deed. decree for distril

of

There was testimony that at one time Dan. the report, no

ed iel W. Carville gave the petitioner oral peragainst the defen

1 mission to cut ice upon the pond, and that though it does no

s afterwards the petitioner erected ice houses, exonerated. See B

and sold ice from this pond in the market 541, § 17, 30 Stat. 5

for a series of years. If the petitioner at

[graphic]

f tł

any time had any right in the pond for the approach of the car, and that he did not which he was entitled to damages he ac

more promptly apply the brake for the purpose quired it by adverse use. There is a grave

of stopping the car, do not charge the company

with negligence in retaining an incompetent question whether the evidence would warrant

servant, without further proof of previous misa finding that the use was adverse, or other conduct showing unfitness, within Rev. Laws, than permissive. But if we assume that

c. 111, § 267, authorizing a recovery for the the jury might have found in his favor on

death of a person caused by the negligence of

a street railway company. this point, his use of the pond had not

[Ed. Note.-For cases in point, see vol. 15, continued so long as twenty years when Cent. Dig. Death, $$ 93, 94; vol. 44, Cent. Dig. the commonwealth took the property. The

Street Railroads, $$ 243–247.] dam was not built until the autumn of 1878,

2. SAME-NEGLIGENCE OF EMPLOYÉS. nor the ice houses until 1879. His testi

In an action against a street railway com

pany for the death of a pedestrian struck by mony to having worked by odd jobs on the

a car, it was shown that the gong was not land during the year before did not show rung, that the velocity of the car exceeded the an exclusive occupation, nor a use of the

specified rate of speed, and that the motorman

did not exercise ordinary care in his general land for cutting and taking ice, such as

observation of the entire area of the street would mark the beginning of an adverse from curb to curb. Held not to show gross claim as a foundation for the acquisition negligence, within Rev. Laws, C. 111, § 267, of a right to take ice.

authorizing a recovery for the death of a per

son caused by the gross negligence of the serve But if we assume that the plaintiff had ants of a street railway company. acquired a right, it was an easement in [Ed. Note.-For cases in point, see vol. 15, gross, or a profit a prendre, which was an Cent. Dig. Death, $$ 93, 94; vol. 44, Cent. Dig. interest in the real estate. Goodrich v.

Street Railroads, $8 243-247.] Burbank, 12 Allen, 459, 90 Am. Dec. 161; Exceptions from Superior Court, Worcester French v. Morris, 101 Mass. 68; Amidon v. County ; Edward P. Pierce, Judge. Harris, 113 Mass. 59; Walker Ice Co. v. Amer Action by Mary E. Moran, administratrix, can Steel Wire Co., 185 Mass. 463, 70 N. E. again: t the Milford & Uxbridge Street Rail937; Mayor, etc., of New York v. Law, 125 N. way Company. There was a verdict ordered Y. 380, 26 N. E. 471; Poull v. Mockley, 33 in favor of defendant, and plaintiff excepts. Wis. 482. Damage suffered from the taking Exceptions overruled. of real estate or an interest therein, could

John B. Ratigan, John E. Swift, and Jereonly be sued for under St. 1895, p. 573, C.

miah J. Moynihan, Jr., for plaintiffs. Wen488, 8 14, as amended by St. 1899, p. 298,

dell Williams, J. C. F. Wheelock, G. B. Wilc. 342, St. 1900, pp. 74, 75, c. 108, SS 1, 2,

liams, and Shelley D. Vincent, for defendant. St. 1901, p. 438, c. 498, and St. 1904, p. 162, c. 186, "within two years after the actual

BRALEY, J. This is an action of tort taking by right of eminent domain of such

brought under Rev. Laws, c. 111, $ 267, to rereal estate or of any interest therein." The

cover the penalty provided, in causing the extension of the time for filing petitions

death of the plaintiff's intestate, who was under these statutes does not include cases

killed by coming into collision with a car of like the present. Whatever be the construc

the defendant on the evening of October 27, tion of the term “actual taking," the peti

1904, while as a traveler he was passing tion was filed too late; for the water was

across its railway tracks located in Main actually withdrawn in January, 1900, and the

street in the town of Milford. In the superpetition was not filed until October 19, 1903.

ior court upon the close of the plaintiff's It therefore becomes unnecessary to con

evidence, at the request of the defendant the sider either the effect of the petitioner's deed

presiding judge ordered a verdict in its favor, of release to the commonwealth, covering

which having been returned, the plaintiff damages for taking other lands belonging to him, under this same instrument, and for the

brings the case to this court on exceptions.

The intestate, who was nearly 70 years of taking of his ice houses used with this pond, or the effect of the judgment in favor of the

age, at about half after 10 o'clock in the even

ing was seen standing at the corner of the commonwealth upon his suit for damages to

intersection of Central street with Main his established business. Judgment on the verdict.

street, and "after looking up and down the street" was next observed going along the

cross-walk which led over the tracks. He (193 Mass. 52)

had passed the easterly track, and apparently MORAN v. MILFORD & U. ST. RY. CO.

had reached the westerly track, over which

the defendant's car was approaching going (Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.)

south, when he was struck by the car and

killed. It substantially could have been 1. DEATH ACTION FOR CAUSING STREET

found that the street was well lighted by an RAILROADS NEGLIGENCE INCOMPETENT SERVANT-EVIDENCE.

electric arc light, and that upon coming withIn an action against a street railway com in 150 feet of the place of collision the motorpany for the death of a pedestrian struck by a

man saw the intestate standing on the curbcar, the facts that the motorman did not continuously observe decedent while crossing the

ing at the corner, and did not again see him street, that he failed to give any warning of until he was in front of the car. After its

servation the entire area from curb to curb, and also have seasonably rung the gong, the accident might have been avoided. Menard v. Boston & Maine Railroad, 150 Mass. 386, 23 N. E. 214; Brusseau v. New York, New Haven & Hartford Railroad Co., 187 Mass. 84, 72 N. E. 348; Dalton y. New York, New Haven & Hartford Railroad Co., 184 Mass. 344, 68 N. E. 830. But if ordinarily the rate of speed, and these acts of omission could have been found sufficient to constitute negligence on the part of the defendant which would have sustained an action by the intestate if he had survived, they were not, even when combined, enough to establish such wanton and reckless conduct as to amount to gross negligence within the meaning of the statute as defined in recent cases. Galbraith y. West End Street Railway Co., 165 Mass. 572, 43 N. E. 501; Banks v. Braman, 188 Mass. 367, 74 N. E. 594; Spooner v. Old Colony Street Railway Co., 190 Mass. 132, 76 N. E. 660.

No error being found in the ruling the entry must be,

Exceptions overruled.

intersection with Main street the continuation of Central street was known as Exchange street, and it was undisputed that the number of travelers with teams was so large at this point at that time in the evening as to require close observation to ascertain if they were passing from Exchange street into Main street. It also appeared that because of a projecting building a full view of this corner could not be obtained until the car was nearly opposite. By reason of these conditions, the motorman testified that although he rang the gong when he first saw him, as the car approached he fixed his attention upon this portion of the street to avoid accidents, and did not observe him after he started to cross the tracks, but if he had noticed him on the crossing the car, which at this time was not being driven over 4 or 5 miles an hour, could have been stopped in time to prevent the accident. There was evidence, however, in conflict with parts of this statement by witnesses who were of opinion that the rate of speed was at least 10 miles, while one witness in the immediate neighborhood who saw the car as it approached, and witnessed the collision, testified that he did not hear the gong sounded.

Assuming, without deciding, that there was evidence for the consideration of the jury of the due care of the decedent, the action cannot be maintained unless some proof is found either of the negligence of the defendant, or of the gross negligence of its servant, who at the time was in charge of the car. Coleman v. Lowell, Lawrence & Haverhill Street Railway Co., 181 Mass. 591, 64 N. E. 402; McCrohan v. Davison, 187 Mass. 466, 73 N. E. 553; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224; Spooner v. Old Colony Street Railway Co., 190 Mass. 132, 76 N. E. 660. As neither the track, nor the car and its equipment are shown to have been defective, a suggestion is offered that the motorman was incompetent to perform duties. The only evidence of alleged incompetency to which the plaintiff refers is his conduct at the time of the accident in not continuously observing the intestate, and a failure to give any warning, or to apply more promptly the brake for the purpose of stopping the car. These acts, even if they could be characterized as claimed, are not sufficient to charge the defendant with negligence in employing and retaining an unfit servant without further proof of previous misconduct showing unfitness, which does not appear. Olsen v. Andrews, 168 Mass. 261, 265, 47 N. E. 90. Nor is there any evidence of gross negligence of the motorman.

The jury could have found from the conflicting testimony that the gong was not rung, and that the velocity exceeded the rate given, and if instead of concentrating his attention upon the volume of public travel on that side of the street the motorman in the exercise of ordinary care had included in his general ob

78 N.E.-47

(193 Mass. 92) ANDREWS v. WILLIAMSON (two cases). (Supreme Judicial Court of Massachusetts.

Middlesex. Oct. 16, 1906.) 1. LANDLORD AND TENANT-COMMON PASSAGE -CARE REQUIRED OF LANDLORD.

Where a landlord maintains a common passage for the use of several tenants, he is bound to use due care to keep it in such con dition as it was in or purported to be in at the time of the letting, though he is not bound to change the mode of construction.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, $$ 629, 646.) 2. SAME-INJURIES TO TENANT_ACTION-INSTRUCTION.

In an action for injuries to a tenant by an alleged defect in a common flight of steps maintained for the use of various tenants, an instruction that if the defect of which plaintiff complained was obvious at the time of the letting defendant was not liable, but that if the steps appeared strong and safe at the time of the letting then defendant was bound to use due care to keep them in the condition in which they appeared to be, was not objectionable as in effect making the landlord an insurer of his tenants against injury arising from defects in common passageways, irrespective of their condition at the time of the letting.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, & 646.]

Exceptions from Supreme Judicial Court, Middlesex County.

Actions by Margaret and Russell E. Andrews against Helen Williamson for personal injuries to and loss of services of the female plaintiff, who was a tenant of premises hired of defendant. Plaintiff fell, owing to a defect in a flight of steps appurtenant to the rented premises and used in common by various tenants. There was a verdict for plaintiff in each case, and defendant brings exceptions. Overruled.

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