such intention, such findings of fact are final they are controlled by the laws of England, and must stand. and that under either jurisdiction she has no Appeal from Supreme Judicial Court, Suf- right under the will, unless the testator infolk County; J. C. Crosby, Judge.

In the matter of the estate of George H. Browne, deceased. Petition by Edward W. Hutchins and another, trustees under will of decedent, against Harrie W. Browne and another, for instructions as to disposition of income from funds in trust. From a decree rendered, declaring defendant Dorothy Colt G. Browne not entitled to income therefrom, she appeals. Affirmed.

S. H. Batchelder, of Boston, for Harrie W. Browne.

A. T. Sieker, of New York City (T. L. Walsh, of Boston, on the brief), for Dorothy C. G. Browne.

Hutchins & Wheeler, in pro. per.

tended she should share in the income. He further found that she was not born until twenty years after the testator's death, and was not adopted until more than forty years after his death; that there was no intention on the part of the testator to include her under the third clause of his will; and found and ruled that Harrie W. Browne was entitled to all the income. A decree was entered in accordance with these findings and rulings.

[1, 2] In our opinion the law of this commonwealth governs in the construction of this will. The testator describes himself as, "I George H. Browne formerly of Boston in the state of Massachusetts now resident of Manchester in England Merchant." The three witnesses to the will were residents of Manchester. The testator gave a legacy to his "partner in business Joseph H. White of Boston"; he appointed him one of the trustees and executors, and also appointed him guardian of his minor children. The other executors and trustees were of Boston and New York. The testator further directed that in default of grandchildren or issue of grandchildren, the estate was to be divided between his heirs at law, "according to the provisions of the then existing laws of Massachusetts." The fact that the testator described himself as a resident of Manchester, England, was not enough to establish his domicile in England. Residence is a circumstanee to be taken into account in considering the domicile of a person, but it is not conclusive. His domicile was a question of fact. White v. Stowell, 229 Mass. 594, 119 N. E. 121; Feehan v. Tax Commissioner, 237 Mass. 169, 129 N. E. 292.

CARROLL, J. By the third clause of the will of George H. Browne, dated November 28, 1873, and allowed by the probate court for the county of Suffolk January 28, 1878, the testator having died October 27, 1877, the residue of his estate was given to trustees to divide the net income, "after paying the expenses and charges of this trust and the annuity provided in the second item" of the will, equally among his lawful children "who shall survive * * * [him] during their respective lives"; the trust to continue until the death of the child who shall longest survive, "the child or children of any of my children who shall die leaving a child or children, to take the same share of the income that the parent would if living." Harrie W. Browne, one of the defendants, the only surviving child of the testator, contends that the net income or the trust, accruing since the death of his brother, belongs to him, his brothers and sisters having died without issue. The other defendant, Doro-testator at one time was in Boston. There is thy C. G. Browne, was adopted on the peti- nothing designating the acquisition of a new tion of George C. Browne, and his wife, and domicile except the statement that his resiby a decree dated May 20, 1919, of the sur- dence is in Manchester, England. On the rogate's court in and for the county and the other hand, the testator's reference to his state of New York, became their legally partner in business as of Boston, his appointadopted daughter. She was born November ment of him as guardian of his children and 13, 1897. George C. Browne was a son of as one of his executors and trustees, the apthe testator. He died January 27, 1924. Dor-pointment of Henry C. Hutchins of Boston othy C. G. Browne contends that she is entitled as the adopted daughter of George C. Browne, to share in the income of the trust estate accruing since the death of George C. Browne. The trustees ask to be instructed whether the entire income belongs to Harrie W. Browne, or is to be paid to him and Dorothy C. G. Browne.

The single justice found that the trust in question has for nearly fifty years been administered in Massachusetts, where the trustees are residents, and where the will was probated; and he ruled that, if the rights of Dorothy C. G. Browne under the will are not governed by the laws of this commonwealth,

We must assume that the domicile of the

and Francis D. Lecompte of New York also as his executors and trustees, and the provision in the will that the remainder of his estate was to be divided among his heirs at law according to the laws of Massachusetts, all indicate that he desired his estate to be administered in accordance with the laws of Massachusetts, and that its care and management were to be in the control of these men, none of whom resided in England, and one of whom he named to care for his children and act as their guardian. The inference could have been drawn that his domicile was in Boston. In addition to this, the will was probated in Suffolk county, where the testa

(147 N.E.)

tor formerly resided; this was apparently App. Cas. 265, 276; Dorin v. Dorin, L. R. 7 the primary and only proof of his will. Rack- Eng. & Ir. App. Cas. 568. The question inemann v. Taylor, 204 Mass. 394, 90 N. E. volved is not the right of succession to an 552. All the petitioning trustees are resi- intestate's estate, it is the intention of the dents of Massachusetts. And finally, the testator. What that was has been found trust for nearly fifty years has been admin-against the contention of the defendant Doroistered in Massachusetts. See Tudor v. Vail, i thy C. G. Browne.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

.

"By reason of the admission under section

one of this act of said cities of Lynn, Lawrence, Haverhill, Salem and Newburyport to the enlarged tuberculosis hospital district thereby constituted, the total amount to be assessed on the said cities on account of their respective shares of the total cost of the said tuberculosis hospital to the date of the passage of this act shall be five hundred and ninety thousand forty dollars and eight cents, divided as follows: * * * Newburyport, twenty-two thousand two hundred and eighty-eight dollars and fiftyfour cents; and said assessments * * shall be paid over to the treasurer of the hospital district on or before December thirtyfirst of the current year."

ty commissioners of Essex county and the, clause of section 1 of said chapter 443 is not county itself, against the city of Newbury-constricted to a narrow definition of care port, its mayor, city council, city treasurer which might include only the actual attention and city auditor. The purpose of the peti- to patients in an existing hospital, but is to be tion is to enforce payment by the city to given a broader signification, so as to comprethe county of the assessment required of the hend everything from the construction of an city of Newburyport with reference to the appropriate building to the actual provision tuberculosis hospital of the county of Essex for the treatment of the inmates of such an by St. 1924, c. 443. Prior to 1924 no contri- institution. The second clause of that section bution toward the cost of the tuberculosis is restricted to the "cost, maintenance, operahospital had been required of the city of tion and repair" of the hospital from and aftNewburyport. Spec. St. 1917, c. 107. By er January 1, 1925. The final sentence of St. 1924, c. 443 that city, together with that section, referring to G. L. c. 111, § 85, Lynn, Lawrence, Haverhill and Salem, was is not superfluous. General Laws, c. 111, § included within the Essex county tuberculo- 83, made special provision respecting the colsis hospital district and rendered liable to lection of assessments for initial cost of the assessments therefor. The material provi- hospital among the cities and towns of the sions of section 3 of the last-mentioned act district, and directed the county commissionare these: ers to "issue a warrant" against any town refusing to pay on notice of the amount assessed. right thirty days after a written demand Section 85 gives the county the for payment, to "recover in contract against any town liable to pay any part of the cost of construction, maintenance or repair of said hospital the amount for which it may be liable." While it is possible that without the special reference to said section 85 the right of action by contract might have been by the construction of the act included within the earlier provisions of the section, the special reference to said section 85 does not cut down or narrow the earlier provisions. A strict grammatical construction and narrow definition of this section might reveal some defects in rhetorical composition, but the main purpose of the Leg"For the purpose of caring for the inhabi- islature seems plain. The scope of said tants of the cities and towns within the county chapter 443 covers at least two main obof Essex who are suffering from tuberculosis, all of said cities and towns shall constitute jects, (1) the enlargement of the Essex counthe Essex county tuberculosis hospital district. ty tuberculosis hospital district with the hereinafter called the district, and shall, ex- incidental assessment of their due proportion cept as herein provided, be subject to all the of the initial costs of construction upon the provisions of general law relating to the care of municipalities thus added to the district; persons suffering from tuberculosis as set forth and (2) the assessment of all costs of mainin sections seventy-eight to ninety, inclusive, of chapter one hundred and eleven of the Gen- tenance, operation and repair of the hospital eral Laws, and the costs of maintenance, oper- after January 1, 1925, upon the several muation and repair of the Essex county tubercu-nicipalities in the enlarged district. It well losis hospital incurred after January first, nineteen hundred and twenty-five shall be assessed on all the cities and towns constituting the district as enlarged by this section in accordance with their valuations used in assessing county taxes. Section eighty-five of said chapter one hundred and eleven shall, so far as applicable, apply to assessments so made."

It is provided in section 1 that:

[1] This section 1 is comprehensive. The reference therein contained to sections 78-90 of G. L. c. 111, imports them into said section; and they are to be given as much force and effect as if printed at length. They contain extensive requirements for the care of tuberculosis patients including the construction of appropriate buildings therefor, as well as the maintenance and operation of such hospitals after their construction. The first

may have been thought by the framers of said chapter 443 that the reference to G. L. c. 111, §§ 78 to 90, provided method of collection of the assessment levied by the General Court itself in section 3 of said chapter 443, while the final sentence of section 1 of that chapter as to "assessments so made" referred to the immediately preceding requirement that the "costs of maintenance, operation and repair of the hospital

(147 N.E.)

to recover the assessment here sought to be collected.

[2] It is the settled rule of practice that the extraordinary remedy provided by a writ of mandamus with not be permitted where there is other relief afforded either by common law or by special provisions of statute. Selectmen of Lexington v. Mulliken, 7 Gray, 280; Wheelock v. Auditor of Suffolk County, 130 Mass. 486; Perry v. Hull, 180 Mass. 547, 62 N. E. 962; Daly v. Mayor of Medford, 241 Mass. 336, 339, 135 N. E. 307, and cases there collected; City Council v. Mayor of Newburyport, 241 Mass, 575, 136 N. E. 70; Decatur v. Auditor of City of Peabody, 251 Mass., 146 N. E. 360.

Action of contract by Aleck Woogmaster against Joseph Cutler to recover on account annexed and for money lent. From order allowing motion to file attachment bond nunc pro tunc, and from special judgment for plaintiff on verdict, defendant appeals. Affirmed.

S. L. Bailen and R. B. Brooks, both of Boston, for appellant.

J. J. McCarthy, of Boston, for appellee.

RUGG, C. J. This is an appeal from an order of the superior court. The defendant pleaded his discharge in bankruptcy granted on his voluntary petition filed more than two years later than the rendition of the ver[3] No exigency is made out on this rec-dict in favor of the plaintiff. The plaintiff ord which justifies a departure from this then filed a motion setting forth that attachgeneral principle. It cannot be doubted that ment was made of the goods and estate, efthe public interests involved in an action of fects and credits of the defendant when the contract brought to enforce the rights of the action was begun, and that the defendant county would be given proper consideration had given two bonds more than three years in advancing the cause for speedy hearing. prior to the filing of the petition in bankExceptions overruled. ruptcy, to dissolve the attachment pursuant to the laws of the commonwealth, which were. duly approved as to sureties, and that through mistake the bonds were not filed as required by law, and praying to be allowed to file the bonds as of October 17, 1919.

WOOGMASTER v. CUTLER.

(Supreme Judicial Court of Massachusetts.

Suffolk. May 23, 1925.)

1. Appeal and error -863-Appeals from or ders entering judgment on verdict and order that bond be entered nunc pro tunc bring up only matters of law.

Upon that motion it was ordered that the

motion to file the bonds be allowed but without prejudice to the right of any surety to object that he is not to be prejudiced thereby. It was further ordered that judgment be entered for the plaintiff on the verdict unWhere, on motion, it was ordered that mo- der G. L. c. 235, § 25, and of every other tion to file bond to dissolve attachment be power the court thereto enabling, but perpetentered nunc pro tunc and special judgment en- ually staying execution against the defendtered on verdict under G. L. c. 235. § 25, ap-ant Cutler upon any judgment other than unpeal therefrom brings up only matters de- der said section 25. cisive of case on matters of law apparent of record.

[1, 2] The defendant appealed from these orders. Such appeal brings before us only 2. Appeal and error 907 (3)-Record not matters "decisive of the case founded upon disclosing error in order permitting filing nunc pro tunc, of bonds to dissolve attach-matter of law apparent on the record. Samment, order not interfered with. uel v. Page-Storms Drop Forge Co., 243 Mass. 133, 134, 137 N. E. 169. The only question argued is whether the court had

On appeal from order allowing motion to file nunc pro tunc bonds to dissolve attachment, assumed to have been given under G. L. c. 223, §§ 120, 121, 123, there being no evi-power to permit the bonds to dissolve the atdence in the record, every presumption of fact tachments to be filed nunc pro tune.

would be made in favor of action of court below, and the order would not be interfered with where it could not be pronounced erro

neous.

3. Bankruptcy 391 (3)-Special judgment on verdict after dissolving of attachment against defendant rightly entered.

Where plaintiff alleged that attachment of defendant's effects was made when action was begun, and that defendant had given bonds to dissolve attachment more than three years prior to filing petition in bankruptcy, but through mistake bonds were not filed, special judgment was properly entered under G. L. c. 235, § 25, on verdict against defendant.

It was assumed at the argument that the bonds were given under R. L. c. 167, §§ 116, 117, and 119, in force at the time, now G. L. c. 223, §§ 120, 121, 123. This is set forth in substance in the motion for filing the bonds. It was required by the last of these sections

that

"The bond shall be filed by the defendant with the clerk of the court to which the writ is returnable within ten days after its approval, and the attachment shall not be dissolved until the bond shall have been so filed."

Every presumption of fact must be made in favor of the action of the court below, Appeal from Superior Court, Suffolk Coun- because there is no evidence in the record. ty; William C. Wait, Judge. If the entry of the orders can be justified

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

icy, thus making it a part of its contract of insurance, gives it no sanctity superior to rights established under the statute, which are part of a heavy responsibility imposed upon the railroad corporation by the legislative department of government.

[5] In case a railroad corporation is held liable in damages for injuries to property by fire communicated by its locomotive engines, the insurance company has no right to subrogation either in equity or under the terms of the standard policy to the rights of the insured. That was taken away by St. 1895, c. 293, now in G. L. c. 160, § 234, as has been hitherto decided. Lyons v. Boston & Lowell Railroad, 181 Mass. 551, 64 N. E. 404; New England Box Co. v. New York Central & Hudson River Railroad, 210 Mass. 465, 470, 97 N. E. 140.

[6, 7] The contract of insurance was made subject by implication to the terms of G. L. c. 160, § 234, as well as to all other valid

ance is subject to a large measure of legislative regulation. The insurance company can make no complaint of valid statutes in existence and governing its contract at the time it was made. Lorando v. Gethro, 228 Mass. 181, 117 N. E. 185, 1 A. L. R. 1374; National Union Fire Ins. Co. v. Wanberg, 260 U. S. 71, 43 S. Ct. 32, 67 L. Ed. 136.

fendant now relies. If the construction of that statute for which the defendant contends is sound, the railroad corporation could never put itself in a position to secure the benefits of the statute in those instances where the insured insists upon collecting his full damages from the railroad corporation or where for any reason the insurer does not pay the loss under the policy before the trial of the action against the railroad corporation to recover damages from it. Where the loss by fire is less than the amount of the policy, naturally the insured will collect from the insurance company. The clause of the policy as to assignment by the insured would then operate. But where the loss exceeds the policy, circumstances might make it wise for the insured to bring his action in the first instance against the railroad corporation and not to complicate that action by acceptance of the amount due on the policy. [3] The words of the statute, G. L. c. 160, § 234, make plain the purpose of the Legisla-provisions of law. The business of insurture that the railroad corporation shall get the benefit of the insurance in one or the other of two ways, either (1) in case the insurance has been paid to the insured before the trial of the action against the railroad, by deducting the amount so paid from the damages otherwise recoverable against it, or (2) in case the insurance, has not been paid, by giving to the railroad corporation an assignment of the policy and permitting action to be brought by it on the policy. The contention of the defendant makes the second branch of the statute of no force or effect. On its theory damages can never be collected of it on the policy unless the insured assigns to it the policy. That cannot be done if the insured already has assigned the policy to the railroad corporation. That is to say, there can never be recovery by the railroad corporation from the insurance company under the policy. Such a result ought not to be imputed to the Legislature in enacting a statute unless no other result can be reached reasonably. Ordinarily the party subrogated has and acquires no greater rights than those of the party for whom he is substituted. Jackson Co. v. Boylston Ins. Co., 139 Mass. 508, 512, 2 N. E. 103, 52 Am. Rep. 728. This case does not involve the doctrine of equitable subrogation, but the interpretation of a statute bearing only a kind of similarity to that doctrine.

[4] The circumstance that in the case at bar the defendant tendered to Taylor the amount due on the policy upon condition of assignment of it by him to the insurer is not in terms provided for in the statute. It does not avail the defendant. The statutory words apply equally to such a state of facts as to a state of facts where for any other reason the insurer does not pay the amount due on the policy before the trial of the action against the railroad corporation.

The insertion of the clause upon which the defendant relies in the standard form of pol

The conclusion from all these considerations is that the statutes conferring rights upon the railroad corporation, G. L. c. 160, § 234, is operative even though the railroad corporation is not in a position to comply with the clause in the statutory form of policy requiring assignment by the insured to the insurer of rights therein described and that that clause in the policy is subject to the implied exception wrought by section 234 and is not effective when the facts arise set forth in that section. The right of the insurer to the assignment from the insured required by the policy does not exist on those facts.

[8] The defendant has pleaded by way of defense that the fire which caused the damage to Taylor was caused by the negligence of the section men of the defendant in setting and guarding grass fires. The statutory right of the plaintiff to recover on the policy of insurance in the circumstances here disclosed is not subject to that defense. The right of the plaintiff springs into being when it has been held liable in damages to a person whose buildings or other property have been injured by fire communicated by its locomotive engines. As between the plaintiff and Taylor that matter was settled by the finding of the jury to the effect that Tay lor's property was so injured. The defendant was notified of the bringing of the action by Taylor against the present plaintiff before it was referred to the auditor, but was not a party thereto and did not participate in the trial of that case. That is all that the record shows upon this aspect of the case. That is not a binding notice to the