of Pub. St. c. 127, §§ 28, 29. The fund is not the property of the testatrix, and should not be applied to her debts until her own property is exhausted. Fleming v. Buchanan, 3 De Gex, M. & G. 976. It is asked also what interest shall be paid to the legatees. We presume that the terms of the original will were followed, and that the fund was identified by deposit in the Hospital Life office. Whether it still is there, or what has become of it does not appear. If any interest has accrued since the death of the testatrix, it should follow the fund. No reason appears for allowing more than the actual increase of the fund.

The third article of the second codicil gives $5,000 to Abby W. Hale, and at her decease to her two unmarried daughters, then to the survivor of them, and then to two married daughters. Abby W. Hale has died since the death of the testatrix. The seventh question is whether the fund is to be held by the executor in trust until the death of the two unmarried daughters, or is to be paid over to them. It is settled in this commonwealth that, in the case of money, if no trustee is specially named or appointed, the executor is to hold the money in trust, and pay the interest only to the person entitled for life. Field v. Hitchcock, 17 Pick. 182, 183; Homer v. Shelton, 2 Metc. (Mass.) 194, 206; Hooper v. Bradbury, 133 Mass. 303, 307; Bullard v. Chandler, 149 Mass. 532, 537, 21 N. E. 951. Our answer to this question also answers the thirteenth, with regard to the $5,000 given to Mrs. Joshua Lincoln for life by the twenty-second article, and the seventeenth, with regard to the like sum given by the thirty-fifth article to Charles H. Hale for life.

The eighth question concerns the "old Vose mahogany table," and the "chromo of lilacs," mentioned in article 3 of the codicil. The gift is absolute in terms to Abby W. Hale, "if living at my decease," and the gift to her daughter Mary and other daughters successively is only in case Abby is not living at the death of the testatrix. But in article 4 there is a gift over after the decease of Abby and her four daughters; and taking this into account, and other indications in article 5, we are of opinion that Abby took only a life interest, and are inclined to assume that her daughters were to take successive life interests at her death, whenever it happened. The table and chromo-lithograph will be handed to the daughter Mary, that being the rule as to chattels of this sort. Homer v. Shelton, 2 Metc. (Mass.) 194, 206. The Vose clock, by the terms of article 6, goes the same way as the table. But we do not see our way to cutting down the gift of the articles mentioned in article 6 to a life interest. The gift to Abby is absolute in terms, and there is no alternative except in case Abby is not living at the death of the testatrix. The reference to article 3 suggests a similar disposition throughout,

but there is no limitation over or other indication of an intent to look beyond Abby's death if the things once vested in her. The objects inquired about in the tenth question should be given to the representatives of Abby W. Hale.

The cologne stand mentioned in the eighth article is to be delivered to Harriet W. Kennedy, as are also the objects mentioned in the ninth article.

The two sums of $5,000 mentioned in the twenty-third and twenty-fourth articles are to be held in trust as in the cases already explained. Questions as to the future disposition of the fund we do not answer. Bullard v. Chandler, 149 Mass. 532, 21 N. E. 951; Quincy v. Attorney General, 160 Mass. 431, 437, 35 N. E. 1066.

The sixteenth question as to the gift of $100 a year by article 31, "should there be one or more persons at my decease, but now not known, in my employ, who may have faithfully served me at home," is answered by the finding that the only persons answering the description are Martha L. Collins and Sarah Ellen O'Brien. The sum will be paid to each of them.

The last two questions concern the last gift in the codicil: "To each of my cousins in the first degree who is not remembered by a legacy from me in my will and codicils,to each of such cousins I give the sum of twenty-five hundred dollars." We are of opinion that these words do not describe first cousins already deceased when the words were used, or the issue of such cousins, and, therefore, that such issue cannot take, whether the testatrix knew of the death of their ancestor or not. As there is no device to their ancestor, they are not helped by Pub. St. c. 127, § 23. In cases like Nutter v. Vickery, 64 Me. 490, although the ancestor was dead when the will was made, the will purported to make him or her a devisee. Howland v. Slade, 155 Mass. 415, 29 N. E. 631; Sanderson v. Bayley, 4 Mylne & C. 56; Christopherson v. Naylor, 1 Mer. 320, 326; Parker v. Tootal, 11 H. L. Cas. 143, 164, 166; In re Musther, Groves v. Musther, 43 Ch. Div. 569.

There is more difficulty in deciding whether those cousins who received a chromo-lithograph or a hatstand were "remembered by a legacy," within the meaning of the codicil. There is such a want of proportion between the gifts of various small articles and the money, there is such an improbability that a first cousin so far singled out as to receive a keepsake should be excluded by the receipt of it from a benefit given to the least known of the class,-that we are compelled to believe that "legacy" here is used in the sense of a "pecuniary legacy," the meaning which the word most readily suggests to the unprofessional mind. It is argued with some plausibility that the testatrix used the word "bequests" in the same sense of "pecuniary bequests" in her will. She says, "I

make no bequests to my relations because," etc.; yet she gives all her personal effects other than money to her executors, to be given to her friends, certainly including her relations.

Decree accordingly.

RAPHAEL v. MULLEN.

(Supreme Judicial Court of Massachusetts. Suffolk. May 18, 1898.)

PAROL TESTIMONY-INSOLVENCY-TRUST FUNDS. 1. Parol testimony is admissible to show a bill of sale, absolute in form, was executed in trust or as security.

2. Under Pub. St. c. 157, § 84, providing for discharge of insolvent debtors, the debtor cannot be discharged from liability to account for a trust fund.

Appeal from superior court, Suffolk county. Bill by one Raphael against one Mullen. From a decree for plaintiff, defendant appeals. Affirmed.

W. O. Kyle, for appellant. R. R. Gilman, for appellee.

HOLMES, J. This is a bill to compel the restoration of funds, the residue of the proceeds of the plaintiff's (Raphael's) stock in trade. Raphael made an assignment for the benefit of creditors, but later went into insolvency. He then made an offer of composition, and executed a bill of sale of the property previously assigned to the same assignees, of whom the defendant, Mullen, was one. The other, Williams, is out of the case by agreement. The bill alleges that this bill of sale, although absolute in form, was given only as security to Mullen and Williams for such money as they should advance in order to pay the offer of composition, and it seeks an account and repayment of the balance. The case was sent to a master, who found that the bill of sale conveyed, not an absolute title, but simply a title in trust to hold as under the previous assignment. The superior court made a decree in accordance with the master's report, so far as now is material, and the defendant, Mullen, appealed. The evidence taken by the master is attached to his report, and is brought before us by the appeal.

The main question raised concerns the finding of the master just stated. It is argued, in the first place, that oral evidence is not admissible to qualify the bill of sale. But it is so well settled that such a conveyance, although absolute in form, may be shown to have been made in trust or by way of security, that it is not necessary to do more than cite a few cases. Newton v. Fay, 10 Allen, 505; Campbell v. Dearborn, 109 Mass. 130; Minchin v. Minchin, 157 Mass. 265, 32 N. E. 164; Riley v. Bank, 164 Mass. 482, 486, 41 N. E. 679. Then it is said that there was no evidence to warrant the master's finding. But the lawyer who acted for Raphael, and who witnessed the bill of sale, testified that, after

many conversations with Mullen and Williams and their attorney, it was agreed, finally, that Raphael should give an absolute bill of sale to them to secure them, and that they should then carry out the terms of the composition, and that the balance, after satisfying them as to their fees and disbursements, was to be given to Raphael. Indeed, the defendant himself, on cross-examination, assented to the proposition that the bill of sale was given by way of security. It is very plain that we cannot set aside the master's finding.

Some argument is directed against the proposition that the defendant now holds the property under an original assignment. But that was not the finding of the master, or the language of the decree, which follows the master's words. The language is that the bill of sale conveyed the property to Mullen and Williams, "to hold in trust as they had held it under the assignment." Of course, even this language is not accurate. It does not mean that the bill of sale created a trust for creditors, but it does mean that it created a trust, with the same obligation as under the assignment, to keep the fund identified and distinct, and with the same duty to hold for and pay over to Raphael any residue there might be.

Finally, it is urged that, if the bill and the facts show any claim on the part of the plaintiff, it is only a debt, and not a claim by way of trust, and that it is barred by a discharge in insolvency granted to Mullen in July, 1895. The bill of sale was dated December 7, 1893. We do not so read the bill, which prays that the defendants may be declared trustees, and ordered to refund the money received by them in excess of payments, etc. As to the facts, the master finds a trust, not a debt. This being so, the obligation of the defendant is not discharged. Pub. St. c. 157, § 84; St. 1884, c. 236, § 9. The cases under the United States bankrupt law do not apply. They started from the case of a factor (Chapman v. Forsyth, 2 How. 202; Hayman v. Pond, 7 Metc. [Mass.] 328), who in this commonwealth, at least, is not bound to keep the proceeds of goods sold by him distinct, but is authorized to mingle them with his own funds, --that is to say, to make himself an ordinary debtor for the amount (Vail v. Durant, 7 Allen, 408). Probably the same was thought to be true in Cronan v. Cotting, 104 Mass. 245, 247, 248, which is the strongest case cited. Hennequin v. Clews, 111 U. S. 676, 4 Sup. Ct. 576. The same assumption is made as to an executor in Waller v. Edwards, Litt. Sel. Cas. 348, 350. The law of Massachusetts is otherwise. See Marvel v. Babbitt, 143 Mass. 226, 9 N. E. 566. The decision in Chapman v. Forsyth was put on the ground that the words of the act referred only to technical trusts. also, Woodward v. Towne, 127 Mass. 41. In the present case, in view of the previous relations of the defendant to the fund and the testimony as to what was said, a finding was warranted that a trust, in the strictest sense, was meant, and that the assignees were expected

See,

to keep the fund separate, and to turn over what was left. If such a trust obligation is discharged, we are at a loss to know what obligations are excepted by section 84. Decree affirmed.

460, 463, 464; Whitehurst v. Insurance Co., 52 N. C. 433; Trask v. Insurance Co., 29 Pa. St. 198; Inman v. Insurance Co., 12 Wend. 452, 460.

Judgment on the verdict.

SMITH & DOVE MFG. CO. v. TRAVELERS'

INS. CO.

(Supreme Judicial Court of Massachusetts. Essex. May 20, 1898.)

INSURANCE-NOTICE OF ACCIDENT.

Under a policy requiring immediate written notice of an accident, a notice given a month after the accident is insufficient, where the only excuse for not giving it sooner is that, because of a strike of the employés of insured (a corporation), its manager was so occupied as to forget to give the notice sooner.

Report from superior court, Essex county; James R. Dunbar, Judge.

Action by the Smith & Dove Manufacturing Company against the Travelers' Insurance Company. A judgment was ordered for defendant, and the case was reported for determination. Judgment on verdict. J. P. Sweeny, for plaintiff. coln, for defendant.

Solomon Lin

HOLMES, J. This is an action upon a policy of insurance against loss from liability to employés injured in the course of their employment. There is no dispute that a loss happened that was within the policy, and the only defense is that the plaintiff did not give the defendant "immediate written notice" of the accident, as required by a proviso of the contract. The accident happened on May 28, 1895, and was at once known and inquired into by the plaintiff's manager, whose duty it was to send the defendant the notice required. But his intention to send notice was interrupted by a strike, which gave him a great deal of trouble, and to which the details of management were subordinated, but, as he very candidly testified, without being wholly given up. The result was that he forgot the notice, or assumed that it had been sent, and that he failed to send it until June 24th. These are the facts, and we are of opinion that they show neither a compliance with the condition, nor an excuse for not complying with it, even under most of the cases cited in the decision of the majority in Harnden v. Insurance Co., 164 Mass. 382, 41 N. E. 658. It is impossible to say that notice after a month's delay, due only to the forgetfulness of the agent in charge, is an "immediate notice," in any sense. If the word "immediate" is satisfied by the use of reasonable diligence on the part of the insured, such diligence is not made out by evidence that an agent upon whom he relied to give notice had a paramount, but not exclusive, interest in his head, which drove out the contract's requirement, and made him forget it. Assurance Co. v. Burwell, 44 Ind.

COMMONWEALTH MUT. FIRE INS. CO. v. WM. KNABE & CO. MFG. CO.

(Supreme Judicial Court of Massachusetts. Suffolk. May 20, 1898.) INSURANCE POLICY - LOCUS CONTRACTI-AGENT— APPLICATION FOR INSURANCE-PRESUMPTION. 1. Insurance brokers in New York were requested by a company's agents there to obtain insurance for them in a Massachusetts company on property in Maryland. The application was received in Boston, and the policy was made and signed there, and the policy was mailed at Boston to the agent of the insured, in New York. Held, that the policy was a Massachusetts contract.

2. The insurance brokers were agents of the insured, notwithstanding they had an open account with the insurer's agents in Massachusetts, and the premium was charged to the brokers, who were paid by the insurer's agents from commissions allowed them by the insurer, and the checks received by the brokers from the agents of the insured, and sent by them to insurer's agents, were payable to insurer's order.

3. An insurance policy is binding when delivered, though it contains terms and conditions not included in the application, unless they are unusual or extraordinary, as the application is deemed to be for such insurance as, in view of the particulars submitted, the company sells, and with which the purchaser is presumed to be acquainted.

Appeal from superior court, Suffolk county.

Action by the receiver of the Commonwealth Mutual Fire Insurance Company against the Wm. Knabe & Co. Manufacturing Company, to recover an assessment on an insurance policy. Plaintiff was not authorized to do business in Maryland, where the property insured was located. Judgment for plaintiff, and defendant appeals. Affirmed.

S. Henry Hopper, for appellant. W. B. Stevens, for appellee.

MORTON, J. There can be no question that Blake & Co. were the agents of the plaintiff, and that Glover & Co. were the agents of the defendant. One question is whether Tate & Cromwell were the agents of the plaintiff or defendant. If they were the agents of the defendant, or were not the agents of the plaintiff, then, subject to certain considerations in regard to the terms of the policies, which will be referred to later, the policies are Massachusetts contracts. If they were the agents of the plaintiff, it might still be a question whether the policies should not be regarded as Massachusetts contracts. If the policies are to be regarded as New York contracts, then the question will arise whether, the insurance being on property situated in Mary

land, they are rendered invalid by the laws of New York. If the policies are to be regarded as Maryland contracts, the plaintiff does not contend that it is entitled to re

cover.

There is nothing to show that Tate & Cromwell were the authorized agents of the plaintiff. They are described as insurance brokers. They were requested by Glover & Co. to obtain insurance on the property described in the policies. Glover & Co. also requested them to obtain the insurance in the plaintiff company. In forwarding the application they clearly acted for Glover & Co., who in turn acted for the defendant. They did not solicit the insurance for the plaintiff from Glover & Co., but Glover & Co. requested them to procure insurance in the plaintiff company for the defendant. It seems to us plain that Tate & Cromwell must be regarded as the agents of the defendant. The fact that there were open accounts between Tate & Cromwell and Blake & Co., and that the premiums were charged to the former, who were paid by the latter out of the commissions which they were allowed by the plaintiff, has no tendency to show that they were its agents, nor has the fact that the checks received by Tate & Cromwell from Glover & Co., and sent by them to Blake & Co., were payable to the plaintiff's order, any such tendency. The plaintiff is a Massachusetts company. The offers contained in the applications were received and accepted by it in Boston. policies were made and signed there. The contracts contained in the policies were to be performed there. When the policies were mailed at Boston to the defendant's agents at New York, if not before, the contracts were complete, and must be regarded, we think, as Massachusetts contracts. Brauer v. Shaw, 168 Mass. 198, 46 N. E. 617; Seamans v. Knapp, Stout & Co. Company, 89 Wis. 171, 61 N. W. 757; Western v. Insurance Co., 12 N. Y. 258; Bailey v. Insurance Co., 56 Me. 474; Hartford Steam-Boiler Inspection & Insurance Co. v. Lasher Stocking Co., 66 Vt. 439, 29 Atl. 629.

The

This view renders it unnecessary to consider whether the policies would have been invalid as New York contracts, or what the effect would have been if Tate & Cromwell had been the agents of the plaintiff. The defendant contends that the policies contained terms and conditions not included in the applications, and that, therefore, they did not become binding until accepted by the defendant or its agents, which could not have been till they were received in New York. The applications not only did not contain the terms and conditions which the defendant says they did not, but, so far as appears, they did not contain many other terms and conditions which are in the policies. Ordinarily, it is not expected that an application for insurance will contain all of the terms and conditions which are included

in the policy when it is issued. Certain particulars are named; others are not. The aplication is for such insurance on such terms and conditions as, in view of the particulars submitted, the company sells. It is to be presumed that, as in other cases, the purchaser has made himself acquainted with what he is purchasing. On the delivery of the policy, therefore, the contract becomes complete without any further assent on the part of the insured. Possibly, if the policy contains any extraordinary provisions such as are not generally or often found in policies, the insured, on receiving it, might have a right to rescind. But that was not the case here. Moreover, the plaintiff is a mutual company. The provision in the policy that the insured should, in addition to the premium, pay all such sums as might be assessed by the directors, is a usual provision in mutual policies; and, by becoming a member of a mutual company, the defendant became bound to pay a proportional share of its liabilities. The plaintiff could waive the payment of the premium in cash upon delivery of the policy, and in such case the policy would take effect on delivery, and would stand as if there were no provision in it in regard to the payment of the premium in cash upon delivery. The provision contained in one of the policies in regard to co-insurance or average is not shown to have been an unusual or extraordinary provision, and it appears that the brokers who were acting for the defendant knew that it was frequently inserted in policies, and knew when the applications were sent what the uniform provisions of the policies issued by the plaintiff were. We think that, on the whole case, the judgment of the superior court was right, and should be affirmed. So ordered.

LOCKWOOD et al. v. ROBERTS. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1898.) PARTNERSHIP-ACCOUNTING-INTEREST.

In a suit between the administrator of a deceased partner and the surviving partner for an accounting, the finding of a master appointed to find the facts and report the same to the court, based on the accounts as they were kept in the firm's books for a long series of years, that no interest was to be allowed to the surviving partner on his money in the business, after he had drawn out as much as he had originally contributed to the firm's capital, will not be disturbed when the only evidence to the contrary is an unsigned memorandum, found among the papers of the deceased partner, and the testimony of the surviving partner, and the fact that the undívided profits served the uses of capital, and sometimes enabled the firm to lend money at interest.

Appeal from supreme judicial court, Suffolk county; M. P. Knowlton, Judge.

Suit by Rhodes Lockwood and another, special administrators of the estate of Thomas Niles, deceased, against Lewis A.

Roberts. From a decree in favor of plaintiffs, defendant appeals. Affirmed.

Elder, Waite & Whitman, for appellant. Hutchins & Wheeler, for appellees.

HOLMES, J. This is a suit against a surviving partner, brought by the special administrators of the estate of a deceased partner, for a receiver and an account. The case has been before a master, and afterwards before a justice of this court on the master's report of his findings and of the evidence. It comes here on appeal from so much of the final decree only as overrules the third exception to the master's report, and disallows the defendant's claim for $8,910.20 interest.

The claim for interest arises in this way: The defendant, Roberts, took the deceased partner, Niles, into partnership in an established publishing business in 1872. The cash and accounts receivable, amounting to $56,254.43, were treated as cash lent to the firm, and were credited as cash to Roberts. Certain house rents also were put in by him as they were collected from time to time, and also were credited to his account. On the other side he was charged with the cash which he drew. So long as a balance remained in his favor upon the account kept in this way, he was credited with interest upon the books, but after that he was not credited with any. In other words, no profits were credited in the account, and all drafts were treated as drawn against the other items above mentioned. The drafts of Niles, on the other hand, necessarily were against profits, as he had nothing else to draw against. But, as there had been no division of profits, almost all the items on his account were debits. The accounts of both partners at the end showed a large debit balance for this reason, although the firm had been making money.

The books were kept by Niles, or by a bookkeeper under his direction, and the defendant says that he did not know how the account was made up, and testifies to an agreement with Niles by which he was to have interest at 7 per cent. on any money he had in the business over and above what Niles had. A memorandum was found in Niles' handwriting, but unsigned, computing interest at 5 per cent. on yearly balances. The profits were considerable, and, of course, if his share had been credited to Roberts, or had been set against his drafts, it would have made a great difference in the interest account. This difference is the sum in dispute.

The difficulty with the defendant's claim, so far as it rests on express agreement, is that the master who saw the witness found against it. It is unnecessary to cite cases on the weight due to such a finding. No conclusion can be drawn from Niles' unsigned memorandum. On the other side are the

accounts as they were kept in the firm books for a long series of years, or, more specifically, the fact that they show on their face that no interest has been allowed to Roberts since 1875. The master finds that the defendant must have known the fact. There are no general principles which outweigh the reasonable presumptions to be drawn from a long course of accounts uncontrolled by testimony, as we must take these accounts to be in view of the master's finding. Winchester v. Glazier, 152 Mass. 316, 324, 325, 25 N. E. 728; Harris v. Carter, 147 Mass. 313, 315, 17 N. E. 649. It is true that the undivided profits served the uses of capital, and sometimes enabled the firm to lend money at interest, but that is not enough to overcome the books and the master's report. Decree affirmed.

COLLAMORE v. LEARNED et al. (two cases). (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1898.)

ADOPTION-COMPETENT PARTIES-VALIDITY. 1. Pub. St. c. 148, § 1, authorizes a person over 21 to adopt as his child another person younger than himself, with certain limitations as to the adoption of blood relations. Held, that the mere fact that one in the senile age of life proposes to adopt persons in the prime and vigor of life does not render the act incompetent.

2. The validity of an adoption is not affected by the fact that it was made for the purpose of making the adopted persons the adopter's heirs at law, in order to take away any inducement to others who might have been his heirs to oppose his will.

Exceptions from supreme judicial court, Suffolk county; Marcus P. Knowlton, Judge. Petition by Hamlet Collamore against one Learned and others, and also by Alonzo Collamore against the same parties, to set aside decrees for adoption by John H. Collamore. Petitions heard together. From a decree of the probate court, dismissing the petitions, petitioners appealed, and from refusal of certain rulings bring exceptions. Exceptions overruled.

H. C. Whitney, for appellant H. Collamore. R. M. Morse and E. B. Hale, for appellees.

HOLMES, J. These are petitions to set aside decrees for adoption by one John H. Collamore of three persons, his nieces and nephew. At the time Collamore was 70, and the adopted children were respectively 43, 39, and 25 years old. At the trial of the case in this court on appeal from a decree of the probate court dismissing the petition, the following rulings were asked and refused, and exceptions were taken:

First. "It is not competent under the adoption law for a person in the senile age of life to adopt persons in the prime and vigor of life." Such is not the law. Pub. St. c. 148, § 1.

Second. "It is not competent, under the