exercise his best judgment in the disposition benefits to which he was entitled. Even withof the property. The case presents no ques out such an express provision the contract tion involving a determination of the relative probably would be held to survive the death value of the benefits which each party was of the testator. In re Grapel v. Hodges, 112 to receive under the contract. There was N. Y. 419, 20 N. E. 542; Janin v. Browne, complete mutuality between the parties. 59 Cal. 37; McCann v. Pennie, 100 Cal. 547, Durkee v. Gunn, 41 Kan. 496, 21 Pac. 637, 13 35 Pac. 158; Volk v. Stowell, 98 Wis. 386, Am. St. Rep. 300; Stow v. Robinson, 24 Ill. 392, 393, 74 N. W. 1:18; White v. Allen, 133 532-535.

Mass. 423. Drummond v. Crane, 159 Mass.

. The defendant argues that the contract, 577, 35 N. E. 90, 23 L. R. A. 707, 38 Am. St. including the proposed codicil, was in viola Rep. 460. The neglect of the testator to make tion of that law as to perpetuities. But the such a codicil, and the assertion by the decontract did not authorize any holding of fendant and the beneficiaries under the will the property or any restraint upon the alien of their right to have this part of the estate ation of it for a term extending beyond a administered as if the contract had not been life or lives in being and 21 years thereafter. made, were a breach of the contract, which Plainly this is one of that class of contracts subjects the defendant as executor to an acin which reliance is placed upon the personal tion for damages. Hawley v. Smith, 45 Ind. judgment and ability of him who is princi 183-211; Drummond v. Crane, 159 Mass. 577, pally to act under it. Brown v. Cushman, 173 35 N. E. 90, 23 L. R. A. 707, 38 Am. St. Rep. Mass. 368–371, 53 N. E. 860; Marvel v. Phil 460; Newton v. Newton, 46 Minn. 33, 48 N. lips, 162 Mass. 399, 38 N. E. 1117, 26 L. R. W. 450; Wylie v. Coxe, 15 How. (U. S.) 416, A. 416, 44 Am. St. Rep. 370; Stow v. Robin 14 L. Ed. 753; Chamberlain v. Dunlop, 126 son, 24 Ill. 532; Janin v. Browne, 59 Cal. 37. N. Y. 45, 26 N. E. 966, 22 Am. St. Rep. 807; The right to dispose of the property would Page on Wills, 76–78. necessarily end with Mills' death, if it had Previously to the making of the contract, the not previously ended. He was bound to pro management of Cook's business in Minnesota ceed under the contract within a reasonable had been in the hands of his brother-in-law, time, in the exercise of his best judgment. one Bridgman, and the title to many of the Under this arrangement the property, presum

lots had been in the name of Bridgman. To ably, would not be withheld from alienation protect Cook, Bridgman, in 1893, deeded to for many years. He could not delegate his him the real estate that previously had been authority to another person, to be exercised held in Bridgman's name. Later, Bridgman after his death; nor could he make a con

became involved in financial difficulties, and a tract with another person concerning the land judgment for $13,604.45 was recovered against which would be void under the rule against

him by one Kells. Suits in equity were subperpetuities. His authority was only to make sequently brought against Bridgman and Cook legal contracts. For these reasons, apart in different counties, upon this judgment, to from other considerations urged in argument, set aside the conveyance of land from Bridg. the contract is not objectionable in this par man to Cook, and notices of lis pendens were ticular.

filed in several counties. Afterwards the The contention that it unreasonably and un present plaintiff, acting under the contract, lawfully interferes with the settlement of made a settlement of these suits, by which the testator's estate is met in part by what he secured a release of the claim upon the we have just said. It is in the power of a

lands and an assignment of the judgment to testator to provide for a disposition or use Cook. To obtain this he conveyed to the of his property, after his death, which will holder of the judgment a part of Cook's prevent for a long time the final settlement lands, worth about $5,000. At the time of of his estate. Thus he may direct that it be making this arrangement to clear up the retained for a term of years in the business title, he supposed that there was but little of a partnership. Mason

Mason v. Pomeroy, 151 property in the estate of Bridgman, who was Mass. 164, 24 N. E. 202, 7 L. R. A. 771; then dead; but it subsequently turned out Willis v. Sharp, 113 N. Y. 586, 589, 590, 21 that the judgment was worth $12,200 as a N. E. 705, 4 L. R. A. 493; Packard v. King claim against the insolvent estate of Bridgman, 109 Mich. 497-506, 67 N. E. 551; man. The facts pertaining to the transaction Ferry v. Laible, 31 N. J. Eq. 567. Burwell were communicated to Cook in his lifetime, v. Cawood, 2 How. (U. S.) 560-576, 11 L. Ed. he received the assignment of the judgment, 378; Ferris v. Van Ingen, 110 Ga. 102-108, and the defendant, as his executor, has taken 35 S. E. 347. This objection to the contract measures to collect from Bridgman's estate is not well taken.

the amount due under it. The plaintiff was The defendant insists that there was no administrator of this estate at the time of rebreach of the contract. It is plain that, by ceiving the assignment for Cook. The dethe terms of the writing, it was to continue fendant contends that the value of this judgin force after the death of the testator, and ment cannot be included as a part of the the codicil was to be executed to insure to proceeds of Cook's property, for the purpose the plaintiff the right to complete the dis of determining the damages suffered by the position of the property and to have the plaintiff.

which are correct as abstract propositions of law, are immaterial, and the defendant was not injured by the refusal of them,

Exceptions overruled.

(192 Mass. 600) BABBITT et al. v. SHEARER. (Supreme Judicial Court of Massachusetts.


Where, in an action for trespass in a superior court, in which neither the right to an easement nor the title to land is drawn in question, the plaintiff, to avoid the granting of a new trial, remits all damages awarded by the verdict in excess of $20, the effect is the same as though the verdict had been returned for that sum, and the case comes within Rev. Laws, c. 203, § 5, which provides that in such an action the plaintiff shall recover no costs.

Appeal from Superior Court, Worcester County; Maynard, Judge.

Action by Martha I. Babbitt and others against John M. Shearer. Defendant appeals from a taxation of costs in favor of plaintiffs. Reversed:

Wm. A. Davenport, for appellant. Arthur P. Carpenter, for appellees.

This judgment was obtained by a transfer of a part of Cook's land in Minnesota. It was a judgment which properly was payable out of Bridgman's estate. Even if it is viewed merely as an incumbrance on Cook's property which it was the duty of Bridgman's administrator to remove, when it was removed by Cook, for the protection of his property, he would be subrogated to the rights of the holder of the judgment against Bridgman's estate. The plaintiff, apparently acting in good faith in the interest of Cook under the contract, perfected for him the title to his lands, and obtained this judgment by giving for it lands worth $5,000. The judgment was a part of the proceeds of the lands within the meaning of the contract.

There is no suggestion of any fraud as between the plaintiff and the former holder of the judgment, which would render the transaction voidable in favor of this holder. If, as between the plaintiff and the estate of Bridgman, there was constructive fraud founded on the fact that the plaintiff was administrator of Bridgman's estate and was interested in the money that might be obtained upon the judgment, there was no attempt to avoid the transaction on that ground, and the defendant, who has ratified it, cannot take advantage of the fraud in this action. Lufkin v. Jakeman, 188 Mass. 528–532, 74 N. E. 933. It is at least doubtful whether, upon the facts shown, anybody can legally object to the transaction. The plaintiff, as administrator of Bridgman, merely permitted a judgment against his intestate to be assigned to the purchaser of it. It is true that he acted as the agent of the purchaser in making the purchase, but there is nothing to show that he had reason to think the transaction in any way detrimental to Bridgman's estate, or directly beneficial to himself. It is true that he had a contract with the purchaser by which he had an interest in the money that might be collected on the judgment, but in this transaction he was acting primarily and directly for Cook alone. The judgment ought legally to be paid in full by the estate, and so far as appears, no facts were known to him that made it a breach of his official duty to participate in a transfer of it from one person to another, even when, through a contract with the purchaser, he would have an interest in the proceeds of it. In view of the facts that the transaction was ratified by the defendant, and that the alleged fraud was res inter alios, we need not further consider this defense, even if there was ground for complaint by Bridgman's creditors or next of kin.

It is to be noticed that the recovery was of damages for the breach of the contract, not of any specific sums to which the plaintiff was entitled under the contract. Some of the requests for rulings were inapplicable on this account. In the view which we have taken of the contract and the evidence, most of the requests were rightly refused. Others,

78 N.E.-49

KNOWLTON, C. J. This is an appeal from a taxation of costs in favor of the plaintiff. The action was tort for trespass quare clausum, and the jury returned a verdict for damages in the sum of $37.50. This, on the defendant's motion to set it aside as excessive, was ordered to be set aside, and a new trial was to be granted unless the surviving plaintiff should remit all in excess of $20. Thereupon she filed a paper remitting all the damages above $20, and judgment was ordered in her favor. Costs for the plaintiff were taxed by the clerk in the sum of $93.33, and, upon appeal by the defendant, this taxation was affirmed by the judge of the superior court.

The plaintiff's action in remitting all of the damages in excess of $20 had the same effect as if the verdict had been originally returned for that sum. This, then, is a personal action commenced in the superior court, in which the plaintiff does not recover final judgment for more than $20 for debt or damages, and in which there is no certificate by the justice before whom the action was tried that the right to an easement or the title to land was drawn in question, and in which no such right or title was in fact drawn in question; for the defendant in his answer admitted the title of the plaintiffs. It comes within the language of Rev. Laws, c. 203, § 5, which provides that a plaintiff shall recover no costs in such an action.

Rev. Laws, c. 174, § 12, in regard to tender, has no application to this case, as it relates only to liabilities on contracts.

The defendant averred in his answer that, before the above action was commenced, he

Report from Superior Court, Worcester County; Francis A. Gaskill, Judge.

Suit by John D. Biggert against Charles L. Straub, Bertha G. Straub, and the State Mutual Life Assurance Company. Questions reported. Motions disallowed.

Arthur T. Johnson and Bullock & Thayer, for plaintiff. Chas. T. Tatman, for defendants.

made a tender of $30 under Rev. Laws, c. 175, $ 8, which provides for such a tender by a trespasser if the trespass was casual and involuntary. To make such a tender effectual if it is not accepted, the defendant must bring the money into court, disclaim title, and allege the tender, and that the trespass was casual and involuntary. If it is found on the trial that the allegations are true, and if the damages assessed are not more than the amount tendered, the defendant recovers his costs. In this case, if tender was made, it was not accepted, and the record shows nothing about it except the defendant's averment of the fact that the money was brought into court. So far as appears, the case was tried without reference to this defense, and there is nothing to indicate that the trespass was involuntary. The defendant's averment in his answer is of no effect, except to present the issue. We cannot assume that this is a case to which this statute applies. The plaintiff's brief and argument, as well as the record, indicate that at no time has she treated the case as coming under this statute. We must deal with it as if no averment of tender had been made and no money had been brought into court.

If it were otherwise, and the tender had been authorized by the law and the facts, the final assessment of damages, by the plaintiff's voluntary act, at less than the amount tendered, would entitle the defendant to a judgment for costs.

Under the statute first cited the order of taxation is reversed, and the plaintiff will take no costs.

So ordered.

KNOWLTON, C. J. This is a suit in equity in the nature of an equitable trustee process, brought under Rev. Laws, c. 159, 3, cl. 7, to reach and apply in payment of a debt due, the plaintiff's property in the hands of the defendant life insurance company, belonging to the debtor, Charles L. Straub. This defendant and his wife, Bertha G. Straub, the other defendant who seems to have an interest in the property, are not residents of this commonwealth and the only service made upon either of them was by publication. They have filed motions to dismiss the suit for want of jurisdiction. The presiding justice overruled these motions and then reported for consideration by this court, the questions arising upon them.

The first question is whether a liability of a Massachusetts corporation upon a policy of life insurance held by a citizen and resident of another state, is property within this commonwealth, such as to give jurisdiction to the court here to enter a decree in the nature of a judgment in rem against it. This question is precisely the same, in its legal aspect, as the question whether such a liability, in a form that can be reached by trustee process in an action at law, gives jurisdiction for an action of the latter kind. This question has long been treated in this commonwealth as requiring an affirmative answer. Ocean Insurance Co. v. Portsmouth Marine Ry. Co., 3 Metc. 420; Whipple v. Robbins, 97 Mass. 107, 93 Am. Dec. 64; American Bank v. Ro)lins, 99 Mass. 313; National Bank of Commerce v. Huntington, 129 Mass. 444; Garity V. Gigie, 130 Mass. 184. In view of conflicting cases in different jurisdictions, it was considered at some length and decided in the affirmative in Rothschild v. Knight, 176 Mass. 48, 57 N. E. 337, and it was settled by decisions in the Supreme Court of the United States, which is the final arbiter in all controversies as to the validity and effect of judgments of one state in the courts of another state. Chicago, Rock Island & Pacific Ry. v. Sturm, 174 U. S. 710–716, 19 Sup. Ct. 797, 43 L. Ed. 1144; King v. Cross, 175 U. S. 396-399, 20 Sup. Ct. 131, 44 L, Ed. 211; Rothschild v. Knight, 184 U. S. 334, 22 Sup. Ct. 391, 46 L. Ed. 573; Blackstone v. Miller, 188 U. S. 189, 205, 206, 23 Sup. Ct. 277, 47 L. Ed. 439. The defendants' objection to the jurisdiction on this ground is not sustained.

The only other question is whether the property is of such a nature as to come within the statute. The State Mutual Life Insur

(193 Mass. 77)

BIGGERT V. STRAUB et al. (Supreme Judicial Court of Massachusetts.


A liability of a Massachusetts corporation upon a policy of life insurance held by a citizen and resident of another state is property within the state of Massachusetts, such as to give jurisdiction to its courts to enter a decree in the nature of a judgment in rem against it in a suit in equity in the nature of an equitable trustee process, brought under Rev. Laws, c. 159, § 3, cl. 7.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Garnishment, $$ 146, 147.] 2. SAME-INTEREST OF DEFENDANT-LIFE INSURANCE POLICY.

The interest of a defendant in an endowment policy of insurance on his life, having a cash surrender value, although such interest is contingent on his living to the end of the endowment period or his survival of the alternative beneficiary, is an interest the value of which "can be ascertained by sale, appraisal, or by any means within the ordinary procedure of the court," and may be subjected to equitable trustee process by suit brought under Rev. Laws, c. 159, § 3, cl. 7.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Garnishment, $8 59, 60.]

Action by Frederick Ford against the Eastern Bridge & Structural Company. Judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

John R. Thayer, Henry H. Thayer, and Jas. F. McGovern, for plaintiff. Herbert Parker, Chas. C. Milton, and Daniel F. Gay, for defendant.

ance Company issued a policy of insurance on the life of the defendant, Charles L. Straub, in the sum of $10,000, for the term of 32 years from May 7, 1895, promising to pay this amount to him or his assigns on May 7, 1927, or in the event of his death prior to said date, to pay it to his wife, the defendant Bertha G. Straub. It appears that this policy now has a cash surrender value of more than $3,000. It further appears that the policy is in the possession of the insurance company, which has a lien upon it for $1,281 advanced to the defendant Charles L. Straub.

The policy is not before us, and the only knowledge we have of its terms or provisions is derived from the averments in the stating part of the bill. Nor do we know whether the proceedings that have been had, or the assignment to the insurance company which we infer has been made as security for the advance of money, are such as leave the de fendant Bertha G. Straub without further interest in the policy. From the averments of the bill the debtor, Charles G. Straub, appears to have at the least, an interest in the policy whose value depends in great measure upon the contingency of his survival of his wife. If he has no greater interest, this question arises: Whether, in view of this contingency, the value of his interest “can be ascertained by sale, appraisal, or by any means within the ordinary procedure of the court." See Rev. Laws, C. 159, § 3, cl. 7. On this question the case of Alexander v. McPeck, 189 Mass. 34, 44, 75 N. E. 88, is decisive. It was there held that a right whose value depended on a similar contingency could be reached under this statute, and that, for the purposes of the statute, the value could be ascertained by sale, or some other means within the ordinary procedure of the court.

Motions disallowed.

LORING, J. In the case at bar the plaintiff was working for the defendant with one Damouchelle, a fellow servant. In order to raise two iron trusses, Damouchelle took a chain lying on the floor and generally used every day, passed it around them, hooked on the fall and directed the plaintiff to pull on one end of the trusses as they were raised by the engine. When the trusses had been hoisted about a foot off the floor, one of the links of the chain broke and the end of the trusses struck the plaintiff, causing the injury here complained of. There was evidence that the link which broke was crystallized and that this crystallization was caused by constant use; that a chain made up of links of the size of the link in question, not crystallized, would bear more than 2,200 pounds, and only 900 to 1,000 pounds when crystallized. The two trusses weighed from 1,600 to 1,700 pounds. It further appeared that the fact of crystallization cannot be determined on inspection even by an expert, but that it can be prevented by annealing the chains, and that chains in constant use should be annealed every six months, to prevent crystallization. It appeared that there were 10 or 12 larger chains around the shop where Damouchelle and the plaintiff were at work.

There is no question of the right of the jury on this evidence to find that the chain in question had not been annealed within six months, that for that reason it had become crystallized, and being crystallized it broke and caused the accident. And further, that when crystallized it did not have half its apparent strength. To furnish such a chain among others for use is plainly negligence 'on the part of an employer.

The difference between the case at bar on the one hand and Thyng V. Fitchburg Railroad, 156 Mass. 13, 30 N. E. 169, 32 Am. St. Rep. 425, and Young v. Boston & Maine R. R., 168 Mass. 219, 46 N. E. 624, on the other hand is that in the latter two cases the condition of the pin was apparent on inspection. The defect in question in Miller v. N. Y., N. H. & H. R. R., 175 Mass. 363, 56 N. E. 282, was treated as a defect of the same kind. The negligence in the case at bar consists in furnishing a chain which through the defendant's negligence had not half its apparent strength. It does not help the defendant to show that it furnished a number of stronger chains. Had the chain in question had its apparent strength it would have carried the load.

Exceptions overruled.


TURAL CO. (Supreme Judicial Court of Massachusetts.


In an action for an injury of an employé, caused by the breaking of a chain with which a heavy weight was being lifted by an engine at defendant's work, it was shown that the chain, with others, was furnished for use by defendant and was apparently strong enough to carry the weight. There was evidence, also, that the broken link was crystallized, and that a chain, when crystallized, had only half its apparent strength, and that such condition resulted from constant use, and could not be discovered by inspection, but could be prevented by annealing, which should be done every six months where a chain was in constant use. Held, that such evidence justified a finding that the chain had not been annealed within six months, and that defendant was negligent in furnishing it, among others, for use by its employés, and liable for the resulting injury.

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

(193 Mass. 80)

HOLLAND V. BALL et al. (Supreme Judicial Court of Massachusetts.


An executor does not acquire title to shares of stock belonging to the estate of his testator by wrongfully having the same transferred to his own name, which constitutes a conversion, but does not devest the title of the estate.

[Ed. Note. For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, $$ 469-471.] 2. APPEAL-REVIEW-QUESTIONS CONSIDERED.

An appeal from the decree of a single justice to the full court presents only the question of the correctness of such decree, and a case not passed on by the single justice cannot be substituted by agreement of counsel.

Appeal from Superior Court, Worcester County; William T. Forbes, Judge.

Appeal by Frank H. Holland, executor, from a decree affirming a decree in probate. Affirmed.

Statement of facts agreed upon:

Hannah A. Holland, executrix of Henry Holland, died on April 3, 1903. Frank H. Holland, her executor, in May, 1905, sold 75 shares of the American Bank Note Company, of the par value of $50 a share, then standing in the name of Hannah A. Holland, and originally in the name of Henry Holland, and being a part of his estate received by her, for the sum of $5,387.10, and deposited the proceeds thereof, viz., said sum of $5,387.10, in the Quinsigamond National Bank of Worcester, and later in the Worcester Trust Company, as a separate and distinct fund.

Arthur M. Taft and John B. Scott, for appellant. Henry L. Parker, for appellee Ball. Webster Thayer and Hollis W. Cobb, for appellee Holland.

of the items in the decree of the probate court making up the $7,628.33 in question that this covers the shares of stock here in question. We do not mean to intimate that if she had undertaken to buy the stock of herself the sale could not have been avoided.

What remedy or remedies the administrator de bonis non may have, based on the subsequent sale by the executor of the executrix or otherwise, is not now before us. See in this connection Sewall v. Patch, 132 Mass. 326. All that we now are called upon to decide and do decide is that the shares of stock in question were the property of the estate of Henry Holland at the date of the decease of his widow, the executrix of his will.

The statement in the brief for the appellant that the will of Henry Holland which appears in Ball v. Holland, 189 Mass. 369, 75 N. E. 713, 1 L. R. A. (N. S.) 1005, may be referred to cannot be entertained by the court. A case not passed upon by the single justice who entered the decree appealed from cannot be substituted by agreement of counsel. The question before us is the correctness of the decree of the single justice. Robinson v. Brown, 182 Mass. 266, 65 N. E. 377.

In our opinion the appeal is frivolous, and the entry must be

Decree affirmed, with double costs.

LORING, J. The only question of law presented here is whether an executor acquires title to shares of stock belonging to the estate of his testator by wrongfully transferring them into his own name.

It is elementary law that an owner does not lose his property in a chattel by a wrongful conversion of it by another. The owner may at his election hold the wrongdoer for damages or retake the chattel owned by him. This is plainly stated in Glaspy v. Cabot, 135 Mass. 435, cited by the appellant together with Choate v. Arrington, 116 Mass. 552, and King v. Ham, 6 Allen, 298. There is nothing in any of these cases which supports the appellant's contention.

There is no ground for the argument that the executrix bought the stock in question of herself. The transfer to herself unexplained is of itself a wrongful conversion. But the fact is put beyond a doubt by the statement in the account that the executrix "appropriated and converted to her own use all the remainder of the estate” not spent by her. It is apparent from the statement

(193 Mass. 106) GALLUS v. ELMER. (Supreme Judicial Court of Massachusetts.


Plaintiff sold his merchandise, fixtures, and business to K., who, being unable to pay the balance of the price, retransferred the property to plaintiff in bulk, in consideration of the satisfaction of the debt, without making an inventory or furnishing a list of his creditors and notifying them, as required by St. 1903, p. 276, c. 415, regulating sales in bulk. Held, that such retransfer, though an accord and satisfaction of K.'s debt to plaintiff, was also, in respect to the merchandise, a "sale" within such act, and was therefore fraudulent as against K.'s creditors. 2. SAME-STATUTES-SCOPE-FIXTURES.

St. 1903, p. 276, c. 415, provides that the sale in bulk of any part of, or the whole of, a stock of merchandise, otherwise than in the ordinary course of trade, or in the regular or usual course of the seller's business, shall be fraudulent and void as against the seller's creditors, unless, etc. Held, that such act had no application to a sale of a merchant's fixtures not intended for sale in the usual course of his business.

Exceptions from Superior Court, Hampden County; Loranus E. Hitchcock, Judge.

Replevin by John Gallus against Irving H. Elmer to recover certain personal property attached by defendant, a deputy sheriff. Verdict was rendered in favor of defendant, and plaintiff brings exceptions. Sustained.

Defendant attached certain fixtures, tools, utensils, and goods used in carrying on a butcher and grocery business, worth $75. On May 9, 1905, Gallus was conducting a butch

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