ShOWed On their face that Certain Statutes should have been set up on behalf of the petitioner by his attorney in that action. It cannot be assumed that the papers on their face would have shown any such thing, and they are not made a part of the bill of exceptions.

As we have already intimated, the exception to the refusal to admit a portion of the Revised LaWS in evidence is not Well taken. The court takes judicial notice of the laws Without their introduction in evidence. The entry must be:

Exceptions Overruled.

(193 MaSS. 38) FORBES, Probate Judge, v. KEYES et al.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.)

1. EXECUTORS AND ADMINISTRATORS—LIABILITY ON BoMDs—OCCUPATION oR REAL EsTATE BY EXECUTOR. Rev. Iaws. c. 150, § 6, provides that, if real property has been used or occupied by an executor, he shall account for the income thereof as ordered by the probate court. Held, that the collection of rents of real estate by consent of devisees, and the occupation of real estate by the executors, does not constitute a breach of their bond. 2. SAME—UNAUTHORIZED SALE OF LANDS—EFFECT ON RIGHTS OF DEVISEES. Where a will conferred no authority upon executors to make a sale of real estate, their conveyance did not affect the rights of devisees, provided they seasonably undertook to assert their rights. [Ed. Note.—For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, §§ 558, 559.]

3. SAME—BREACII OF BOND—ESTOPPEL. Where executors had no authority to sell real estate, but did so, and devisees, without any objection, received the proceeds, they were estopped to claim that such action on the part of the executors constituted a breach of their bond. 4. SAME—WAIVER OF BREACII. Where executors failed to file an account in accordance with the terms of their bond, the filing of an account thereafter, and its allowance With the consent of all the interested parties, amounted to a waiver of the prior breach of the bond. 5. SAME-ACTION ON BOND-CONDITIONS PRECEDENT". Rev. Laws, c. 149, § 23, provides that if the probate court, on the representation of any person interested in an estate, finds that an executor has failed to perform the conditions of his bond, it may authorize any creditor, legatee, etc., aggrieved by such maladministration, to bring an action on the bond. Held, that the mere fact that an executor had failed to pay distributive shares to the legatees did not warrant an action under the statute, prior to the making of any demand for payment of the legaGles.


IN FIDUCIARY CAPACITY. Under the express provisions of Bankr. Act July 1, 1898, c. 541, § 17, subd. 4, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428], debts created by the fraud of a bankrupt while acting in a fiduciary capacity are exempt from the operation of a discharge.

Action by the judge of probate for the county of Worcester against Mary L. Keyes - and another, as executors of the will of

Israel N. Keyes, deceased, upon their joint bond as executors. Judgment for defendants.

John S. Gould, for plaintiff. Henry F. Harris and Winfred H. Whiting, for defendantS.

RUGG, J. This is an action duly brought in the name of the judge of probate for the county of Worcester against Mary L. Keyes and George N. Keyes, as executors of the will of Israel N. Keyes, upon their joint bond as Such executors. The declaration alleges, as breaches of the bond: (1) A management of the estate without authority of law or of the Will, SO as to gather into the hands of the executors large, Sums Of money from rents and sales of real estate of the testator. (2) A failure to account to the probate court at the expiration of one year from the date of their bond. (3) A demand by the legatees of the executors at the expiration of one year from the date of their bond of the property due them under the will, and a refusal of payment by the executors. (4) An ascertainment by accounting in the probate court of the sums gathered into the hands of the executors from all Sources, and a demand for payment to the legatees, and a refusal by the executors. The defendants pleaded a general denial, and later George N. Keyes pleaded an adjudication of bankruptcy on March 29, 1904, and a discharge thereon on June 21, 1904.

| The report shows that Israel N. Keyes died

April 23, 1897. The defendants were duly appointed executors, and qualified by giving their bond, which was approved on May 11, 1897. An inventory was duly filed, exhibiting both real and personal estate of the testator. Rents of the real estate were collected regularly by the executors, until October, 1897, When the defendant, Mary L. Keyes, removed to California, where she has since resided. After this time she did not return to Massachusetts, but she permitted George N. Keyes to transact all business connected with the estate, she having no personal part in the management thereof. At various times, before and after October, 1897, the executors, under a supposed and assumed authority to Sell conferred by the will, executed and delivered as such executors deeds of divers parcels of real estate belonging to the testator, receiving large sums of money therefor. In August, 1903, certain legatees filed their petition ln the probate court asking for a conStruction of that portion of the Will of the testator which the executors had theretofore assumed conferred the authority to sell real estate. Decree was duly entered thereon, from which no appeal was taken, to the effect that, there being sufficient personal estate to pay the debts of the testator, funeral expenses and charges of administration, the Will did not authorize a Sale of real estate. The Sales of real estate were made by the executors under the legal advice that the Will conferred authority to make such sales, and no objection has been made at any time by any party in interest to the Validity of the Sales, the title conveyed or the amounts received therefrom, and a partial distribution of the proceeds of Such sales and of other assets, indiScriminately was made and accepted by the beneficiaries under the Will and receipts given therefor, without objection. The amount of Such Sales, after Mary L. Keyes left this common Wealth, amounted to more than $70,000. On November 9, 1900, George N. Keyes filed in the probate court the first account of the administration of the estate, in response to a citation from the probate court, Mary L. Keyes not participating in nor having actual knowledge of the preparation of Said account. The caption was “The First Account of Mary L. Keyes and George N. Keyes as Rendered by the Latter.” On November 4, 1903, “The Second Account of Mary L. Keyes and George N. Keyes as Rendered by the Said George N. Keyes” [as stated in the caption] was filed in the probate court. The latter account was prepared under the direction of counsel for the estate, who was the agent of Said Mary L. Keyes, she first knowing of its preparation and filing some months afterwards. Both of these accounts were referred by the probate court to an auditor, who, under decrees not objected to, stated new accounts for the executors. After Some corrections made by the auditor, and with items of balance from the first account, which was also allowed by the probate court, the second account Was by the consent of all interested parties allowed by the probate court on November 27, 1903. The caption of this account as allowed by the court Was “The Second Account of Mary L. Keyes and George N. Keyes,” and was for a period ending with the 1st day of October, 1903, the two accCounts together covering the period from the date of the appointment of the executors to the last named date. From decrees allowing these accounts no appeal was taken. Subsequently to the allowance of said accounts Mary L. Reyes by petition sought to be relieved from being jointly charged With her co-executor. Proceedings in this behalf were terminated adversely to her after this suit was begun. The Second account ShoWed a balance in the hands of the executors of $14,845.78. Mary L. Keyes did not file an appointment of agent as required by Rev. Laws, c. 139, § 8, until after a petition had been filed for her removal as executor, on the ground of such failure, nor until August 1, 1903, since which time no proceedings have been had on this petition. Under the terms of the report, if the evidence sustains the ruling of the Superior court for the plaintiffs, judgment is to be entered against the defendant, Mary L. Keyes, for the penal sum of the bond; otherwise, for the defendant. We are, therefore, brought to the inquiry whether Mary L. Keyes, upon these facts, has made any

breach of her bond of which the plaintiff can now complain. The first claim of the plaintiff is that the estate has been So managed, without authority of law or of the will, as to place in the hands of the executors large sums Of money from rents and sales of real estate. The collection of rents of real estate by consent of the devisees, or the occupation of real estate by one of the executors, which appears to have been the Source of Some of the rentS Charged against them in the accounts of these executors, is permitted by statute, and decisions of this court recognize money So received as assets properly in the hands of an executor or administrator. Rev. LaWS, c. 150, § 6; Stearns v. Stearns, 1 Pick. 157; Almy v. Crapo, 100 Mass. 218; Brooks v. Jackson, 125 Mass. 307. It was no breach of the bond for the executors to attempt to sell the real estate. If the will conferred no authority upon them to make the sale, then their act in attempting to convey title was a nullity, and the rights of the devisees under the will were not affected thereby. A pretended conVeyance made under an assumed power of sale conferred by a will, which by true construction does not confer the power, all being a matter of public record, cannot operate to deprive the devisees of their title, provided they seasonably undertake to assert it, and do not accept the fruits of the sale. Thayer V. Winchester, 133 Mass. 447. But all the parties in interest have assented to the account of the executors, by which they were charged with the proceeds of the sales, and the devisees have accepted and receipted for large sums of money received from these Sales of real estate and have at no time made any objection to the validity of the sales, to the title conveyed or to the prices received. Under these circumstances, the devisees are estopped to claim that this action of the executors constituted any breach of the bond. The acquiescence of all the parties in interest has proceeded too far to permit them now in this proceeding to question the propriety of these acts. The next breach of the bond alleged is a failure to account to the probate court. Although no account was filed in accordance with the tenor of the bond, yet one account was filed on the 9th of November, 1900, and another on the 4th of November, 1903, and this Second account Was allowed With the consent of all interested parties. An allowance of an account, under these circumstances, was a waiver of all prior breaches of the bond in not rendering an account, on the part of all those consenting to the allowance. McKim V. Harwood, 129 Mass. 75. Since the filing and allowance of the second account, there has been before the bringing of the present suit no breach of the bond in not accounting, as there has been no order of the court requiring an account, and one year had not elapsed since the filing of the last prior account. I'eV. Laws, c. 149, § 1, par. 1, cl. 3. The third and fourth allegations of breach of the bond are of failures to pay to the legatees upon demand the property due them under the Will. These allegations are not Supported by any evidence, for the report Shows that no demand has been made at 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 prior demand was ever made. It is to be observed that no final account has been filed, and that the last account was entitled and allowed as a second account. It is further to be noted that, although the balance in the hands of the executors is made up partly of receipts from sales of real estate, partly from rents of real estate, and partly of personal property of the testator, and the residuum of the estate is in part to be distributed among persons of a class (Rev. Laws, c. 141, § 22), yet there has been no decree of the probate court as to the persons to whom payment should be made, or amounts to which the several residuary legatees may be entitled. Without discussing the bearing of these two considerations upon the plaintiff's right to recover, we treat as the single question under this branch of the case, whether a suit can be maintained upon a probate bond for a failure to pav-shares in a residuum Of a testate ast put a prior demand.

It ann By authority in this

action cannot be 1 ven by an executor f of his duties, for th ees On account Of Bl - ithout proof of a pre Said in PreSCOtt W. intil Such a deman reasonably said to h; h of his trust, or ev To the Same point 1.496; Dawes V. S.W. v. Boyden, 3 Pick. 2. 3 Pick. 374; Leland 315; NewComb V. % 3. Conant V. Stratton, ~ Choate V. Jacobs, 1 3. Gr V. Elwell, 145 Mass Y- 5. though it may be t 9. a S having given a jo. C- - Keyes is jointly res) % ~ as may have come - (Ames v. Armstron, - rt does not disclose : ion or individual W. in the respects £ )n On" Otherwise, as ReV. Laws, c. 149, $2 hand for payment of tary now to decide > a decree for distril Of the report, no ed against the defen. - lthough it does no S

eXOnerated. See B 541, § 17, 30 Stat. 5 - ,

p. 3428]; Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147. We do not therefore consider any questions Which the report might raise as to him. The entry must be: Judgment for the defendant.

(192 Mass. 570) CARVILLE v. COMMONWEALTH. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.)


Where petitioner's use of a pond for the taking of ice, which right petitioner had acquired by oral permission from his father, had not continued for 20 years when the commonwealth took the pond for a public use, petitioner had not acquired the right to take such ice by adverse possession.

2. EMINENT DOMAIN-EASEMENTS IN GROSSDAMAGES-ACTIONS-LIMITATIONS. Where plaintiff had acquired a right to take ice from a pond under a license from his father at the time the pond was condemned by the commonwealth, plaintiff’s right was a mere easement in gross or a profit a prendre, which was in interest in the real estate, for injury to which plaintiff was required to sue within two years after the actual taking by right of eminent domain, as provided by St. 1895, p. 573, c. 488, § 14, as amended by St. 1899, p. 298. c. 342, St. 1900, pp. 74, 75, c. 108. §§ 1, 2, St. 1901, p. 438, c. 498, and St. 1904, p. 162, c. 186. [Ed. Note.—For cases in point see vol. 18, Cent. Dig. Eminent Domain, §§ 783–787.]

Report from Supreme Judicial Court, Worcester County.

Petition by Clarence Carville to recover damages against the commonwealth of Massachusetts for the alleged taking of petitioner's property by the metropolitan water board. Verdict was rendered in favor of defendant, and the case was reported to the full court. Judgment on verdict.

W. A. Gile, for petitioner. Dana Malone, Atty. Gen., and W. P. Hall and Fred T. Field, Asst. AttyS. Gen., for the CommonWealth.

KNOWLTON, C. J. The petitioner claims damages under St. 1895, c. 4SS and the amendments thereto, for property taken by the metropolitan water board for the Waschusett reservoir. See Carville V. Com., 189 Mass. 273, 75 N. E. 639. The instrument of taking was recorded on May 20, 1898. The property is an alleged right to use a pond on land formerly belonging to the petitioner's father, Daniel W. Carville, for the cutting of ice for the market. This land Was taken by the instrument referred to, and it was also conveyed by Daniel W. Carville to the Commonwealth by a duly executed deed. There was testimony that at One time Daniel W. Carville gave the petitioner oral permission to cut ice upon the pond, and that afterwards the petitioner erected ice houses, and sold ice from this pond in the market for a series of years. If the petitioner at any time had any right in the pond for which he was entitled to damages he acquired it by adverse use. There is a grave question whether the evidence would warrant a finding that the use was adverse, or other than permissive. But if we assume that the jury might have found in his favor on this point, his use of the pond had not Continued So long as twenty years when the commonwealth took the property. The dam was not built until the autumn of 1878, mOr the ice houseS until 1879. His testimony to having Worked by odd jobs on the land during the year before did not show an exclusive Occupation, nor a use of the land for Cutting and taking ice, such as would mark the beginning of an adverse claim as a foundation for the acquisition Of a right to take ice. But if we assume that the plaintiff had acquired a right, it was an easement in grOSS, Or a profit a prendre, which was an interest in the real estate. Goodrich V. Burbank, 12 Allen, 459, 90 Am. Dec. 161; French V. Morris, 101 Mass. 68; Amidon V. Harris, 113 Mass. 59; Walker Ice Co. V. Amercan Steel Wire Co., 185 Mass. 463, 70 N. E. 937; Mayor, etc., of New York V. Law, 125 N. Y. 380, 26 N. E. 471; Poull v. Mockley, 33 Wis. 482. Damage suffered from the taking of real estate or an interest therein, could only be sued for under St. 1895, p. 573, c. 488, § 14, as amended by St. 1899, p. 298, c. 342, St. 1900, pp. 74, 75, c. 108, §§ 1, 2, St. 1901, p. 438, c. 498, and St. 1904, p. 162, c. 186, “within two years after the actual taking by right of eminent domain of such real estate or of any interest therein.” The extension of the time for filing petitions under these statutes does not include cases like the present. Whatever be the construction of the term “actual taking,” the petition Was filed too late; for the Water was actually withdrawn in January, 1900, and the petition was not filed until October 19, 1903. It therefore becomes unnecessary to consider either the effect of the petitioner's deed of release to the commonwealth, COVering damages for taking other lands belonging to him, under this Same instrument, and for the taking of his ice houses used with this pond, or the effect of the judgment in favor of the commonwealth upon his Suit for damages to his established business. Judgment on the Verdict.


(193 Mass. 52) MORAN V. MILFORD & U. S.T. R.Y. CO.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1906.)

1. DEATH – ACTION FOR CAUSING – STREET RAILROADS – NEGLIGENCE - INCOMPETENT SERVANT—EVIDENCE. In an action against a street railway company for the death of a pedestrian struck by a car, the facts that the motorman did not continuously observe decedent while crossing the street, that he failed to give any warning of

the approach of the car, and that he did not more promptly apply the brake for the purpose of stopping the car, do not charge the company with negligence in retaining an incompetent servant, without further proof of previous misconduct showing unfitness, within Rev. Laws, c. 111, § 267, authorizing a recovery for the death of a person caused by the negligence of a street railway company.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Death, §§ 93, 94; vol. 44, Cent. Dig. Street Railroads, §§ 243–247.]

2. SAME–NEGLIGENCE OF EMPLOYES. In an action against a street railway com

pany for the death of a pedestrian struck by a car, it was shown that the gong was not rung, that the velocity of the car exceeded the specified rate of speed, and that the motorman did not exercise ordinary care in his general observation of the entire area of the street from curb to curb. Held not to show gross negligence, within Rev. Laws, c. 111, § 267, authorizing a recovery for the death of a person caused by the gross negligence of the servants of a street railway company.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Death, §§ 93, 94; vol. 44, Cent. Dig. Street Railroads, $$ 243–247.]

Exceptions from Superior Court, Worcester County; Edward P. Pierce, Judge.

Action by Mary E. Moran, administratrix, again, t the Milford & Uxbridge Street Railway Company. There was a verdict ordered in favor of defendant, and plaintiff exceptS. Exceptions overruled.

John B. Ratigan, John E. Swift, and Jeremiah J. Moynihan, Jr., for plaintiffs. Wendell Williams, J. C. F. Wheelock, G. B. Williams, and Shelley D. Vincent, for defendant.

BRALEY, J. This is an action of tort brought under Rev. Laws, c. 111, § 267, to reCOVer the penalty provided, in causing the death of the plaintiff's intestate, who was killed by coming into collision with a car of the defendant on the evening of October 27, 1904, while as a traveler he was passing acroSS its railway tracks located in Main street in the town of Milford. In the Superior court upon the close of the plaintiff's evidence, at the request of the defendant the presiding judge ordered a verdict in its favor, which having been returned, the plaintiff brings the Case to this court on exceptions.

The intestate, who was nearly 70 years of age, at about half after 10 o’clock in the evening Was Seen Standing at the corner of the interSection of Central Street With Main street, and “after looking up and down the Street” was next observed going along the cross-walk which led over the tracks. He had passed the easterly track, and apparently had reached the westerly track, over which the defendant’s car was approaching going South, When he was Struck by the car and killed. It substantially could have been found that the street was well lighted by an electric arc light, and that upon coming within 150 feet of the place of Collision the motorman Saw the intestate Standing On the curbing at the corner, and did not again see him until he Was in front of the car. After its 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 timé 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 his 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

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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 v. 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 v. 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.

(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 condition 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 &omplained 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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