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set aside. Hoshor-Platt Co. v. Miller, 190 Mass. 285, 76 N. E. 650; Fuller v. Fuller, 234 Mass. 187, 125 N. E. 499; Glover v. Waltham Laundry Co., 235 Mass. 330, 127 N. E. 420. It is manifest that the defendant's bid was much below the fair value. But the power permitted him to buy, and if it is assumed that his purpose was to make as much money as possible, that is insufficient to reopen the foreclosure where as in the case at bar the evidence fails to show bad faith in the exercise of the power. Ryder v. Brockton Savings Bank, 235 Mass. 476, 478, 127 N. E. 234; Talbot v. Gingras, 246 Mass. 356, 359, 141 N. E. 239. The bill does not allege, nor does the record show, that an adjournment would have resulted in a larger attendance, or an increased price, and inadequacy of consideration, is of itself insufficient to set the sale aside. Fennyery v. Ransom, 170 Mass. 303, 49 N. E. 620; Taylor v. Weingartner, 223

Mass. 243, 247, 111 N. E. 909.

The defendant, who filed a cross-bill offer

ed no evidence thereon before the master,

but, no decree having been entered and ap

peal taken, it is not before us.

The result is that the suit cannot be maintained, and the final decree for the plaintiff must be reversed, and a decree entered dismissing the bill.

Ordered accordingly.

SMITH V. WELLS.

(Supreme Judicial Court of Massachusetts. Franklin. Oct. 18, 1924.)

1. Injunction 126-Burden rested on defendant taking timber after time limited therefor under deed to show that he had license.

In action to enjoin trespass and to recover damages for timber taken by defendant after expiration of time allowed for removal of timber under deed, burden of proof was on defendant to show that he had license from plaintiff to remove timber after expiration of period. 2. Injunction 128-Finding that grantor of timber did not give license to remove after time limited therefor justified by evidence. Finding of master that grantor of timber did not give defendant oral license to remove timber after expiration of time specified in deed held justified by evidence.

3. Logs and logging 3(14)-Deed of timber limiting time for cutting and removal gives no right after expiration of time to remove timber already cut.

Appeal from Superior Court, Franklin County; P. M. Keating, Judge.

Bill in equity by Jonathan R. Smith to restrain Walter A. Wells from trespassing on plaintiff's premises and to recover damages. Decree for defendant, and plaintiff appeals. Decree reversed, and decree entered.

Wm. A. Davenport and Chas. Fairhurst, both of Greenfield, for appellant. Frank J. Lawler, of Greenfield, for appellee.

PIERCE, J. This is a bill in equity to restrain the defendant from trespassing on the plaintiff's premises and to recover damages already caused by such alleged trespass. After the filing of the answer the case was referred to a master "to hear the parties and their evidence, and report his findings

to the court together with such facts and questions of law as either party may re

quest."

plaintiff is and has been for many years the owner of several tracts of land in Hawley and in Ashfield which are described in the plaintiff's bill; that on May 28, 1918, by warranty deed he conveyed to the defendant "all the standing timber including all trees fit for saw logs" on "the land conveyed to me by Jennie M. Smith. * Said Wells [the defendant] is to have six years from this date to cut and remove said timber. He is to have the privilege of setting a steam mill and sticking up lumber on any part of said premises except mowing land at any time during said six years"; that the defendant entered upon the land, upon which it is estimated that there was something like 3,000,000 feet of standing timber, and began lumbering operations; that the six years under the deed, during which the defendant might enter and cut and remove lumber, expired at midnight on May 28, 1924; that the defendant cut trees prior to May 28, 1924, "some of which were limbed and some of which were not limbed out, which would make 150,000 feet of lumber; that these trees were worth, as they lay upon the ground, $10 per thousand feet; that it shall cost $3 per thousand to cut them; that the purpose of the defendant in cutting these trees was to cut down all the trees he could before the time expired, with a view to getting them off the premises after the time expires"; that at the expiration of the time set in the deed the defendant had 200,

In substance, the master found that the

Deed of standing wood and timber specify-000 feet of lumber on the premises which ing time within which it shall be cut and removed, conveys title to timber, which is conditional and determinable on removal within time stated with reverter of title to grantor in case it is not removed, and timber cut and sawed before expiration of time cannot be removed after such time.

valued at $4,000; that he had 100,000 feet were severed from the realty and sawed out, cut from the stump and piled, not sawed, worth $2,000; that he had 150,000 feet of logs cut from the stump and scattered, not piled, worth $1,500; and that he had a port

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

(145 N.E.)

able sawmill and certain tools used in the lumbering trade which have remained upon the premises. The plaintiff does not contend that he is entitled to the sawmill and tools, nor object to their removal by the defendant.

After May 28, 1924, the defendant entered the premises for the purpose of yarding and sawing logs and removing lumber therefrom and continued so to do until he was stopped by an injunction of the superior court on June 4, 1924. The defendant claimed and offered evidence tending to support his claim that the plaintiff at a time before May 28, 1924, "gave him oral permission or license to continue to saw out and remove timber after the expiration of the time limited in the deed." In this regard the master specifically found that:

scribed premises with a provision which specfies a time within which the wood or timber shall be cut and removed conveys a title to the wood or timber which is conditional and determinable on the removal of the wood or timber within the time stated, with a reverter of title to the grantor in case the wood or timber be not so removed. Lawrence v. Gifford, 17 Pick. 366; Kemble v. Dresser, 1 Metc. 271, 35 Am. Dec. 364; Reed v. Merrifield, 10 Metc. 155; White v. Foster, 102 Mass. 375;' Perkins v. Stockwell, 131 Mass. 529; Oesting v. New Bedford, 210 Mass. 396, 400, 96 N. E. 1095; Ball v. Streeter, 225 Mass. 100, 103, 113 N. E. 1034; Smith v. Ramsey, 116 Va. 530, 82 S. E. 189, 15 A. L. R. 32, note. No sound distinction can be made between sawed timber not removed within the time limit, and timber cut to be "Neither the defendant, nor the witnesses sawed or otherwise manufactured which is called by him, testify that the plaintiff said to not removed within such prescribed limit. the defendant, in clear and unqualified terms, The provision of the deed covers not only the that he might continue to remove timber. cutting but the removal of that which may They say, at most, in substance, at a conversa- be cut in whatever shape it may be put by tion which took place in November, 1923, at the grantee while it remains on the premises the house of Oscar Rood, where * of the grantor described in the deed. The defendant boarded, at the dinner table, in reply master makes no finding as to the quantity to an inquiry by the defendant as to whether the plaintiff had any objection to the defendant or value of the wood and timber removed by removing lumber that should be cut at the the defendant after the expiration of the expiration of the time limit in the deed the time limit of removal. plaintiff replied, 'I don't know. as I have any objection.' But, he added, 'You had better see the Federal Land Bank,' and on another occasion, 'I have no objection, but I don't think the bank will stand for it.' And again, upon the afternoon of May 27 or the morning of May 28, when the plaintiff brought the defendant a notice from the Federal Land Bank of Springfield forbidding any further operations upon the premises, the defendant said, 'I shall go right on just the same. Will it hurt you (meaning the plaintiff) any? To which he says the plaintiff replied, 'I don't know as it will.'"

the

The plaintiff specifically denied any such conversations or that he gave the defendant any permission, but the master found that conversations took place substantially as above stated.

[1, 2] The master ruled rightly that the burden of proof was on the defendant to show that he had a license; and justified by the evidence above reported in full properly found as a fact "that the plaintiff gave the defendant no permission or license to continue, and that he did not mislead him to his damage." By reason of this finding of fact it becomes unnecessary to decide whether an oral license given under the circumstances of this case is revocable or irrevocable, as the plaintiff and defendant respec

tively contend. See Fletcher v. Livingston,

153 Mass. 388, 26 N. E. 1001.

It becomes unnecessary to consider the plaintiff's exceptions to the master's report; the defendant's exceptions are not argued.

It results that the decree must be reversed, and a decree with costs entered for the plaintiff as prayed for in conformity to this opin

ion.

Ordered accordingly.

FLAHERTY v. WHITIN.

(Supreme Judicial Court of Massachusetts. Worcester. Oct. 18, 1924.)

1. Insane persons 33 (2)-Record held not to show that there was no hearing of petition for appointment of conservator.

Where record only shows petition for appointment of conservator under Gen. Laws, c. 201, § 16, and decree stating substance of petition and concluding that petitioner is not friend of respondent and has no right to institute proceeding, it cannot be said as matter of law that there was no hearing, as contended by petitioner on appeal.

2. Appeal and error 694 (1)-Finding that petitioner for appointment of conservator was not friend of respondent one of fact, and conclusive, in absence of evidence.

On petition for appointment of conservator of property of one of advanced age and mental weakness, under Gen. Laws, c. 201, § 16, find[3] It is the law of this commonwealth, ing that petitioner was not "friend" of reand the majority rule of this country, that a spondent was one of fact, which is conclusive deed of standing wood and timber upon de-on appeal, in absence of report of evidence or

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

of material facts, in view of chapter 215, § 11, of chapter 215, § 12, of chapter 214, §§ 24, 25, and of chapter 231, § 125.

Appeal from Probate Court, Worcester County, F. H. Chamberlain, Judge.

Petition by Michael F. Flaherty for appointment of conservator of property of Arthur F. Whitin, by reason of advanced age and mental weakness. Petition was dismissed, and petitioner appeals. Affirmed.

Thayer, Smith & Gaskill, of Worcester, for respondent.

BRALEY, J. The petition, which is in conformity with G. L. c. 201, § 16, alleges that the respondent by reason of advanced age and mental weakness has become incapacitated to properly care for his property, "wherefore your petitioner, a friend of said Arthur F. Whitin, prays, that some suitable person be appointed conservator of the property of said Arthur F. Whitin agreeable to the law in such case made and provided, and that the statements herein contained are true to the best of his knowledge and belief." It was signed, verified, and filed by the petitioner, and, a citation having issued, the respondent appeared by counsel, who, without assigning any reasons therefor, moved that the petition be dismissed. The court of probate on the face of the record had jurisdiction of the parties and of the subject matter of the petition. G. L. c. 201, §§ 16, 17. See section 21. The record is bare of any further recitals except the decree, which, after stating the substance of the petition, concludes:

"It appearing that said petitioner is not a friend of said Arthur F. Whitin within the true meaning and intent of section 16 of chapter 201 of the General Laws of said commonwealth and therefore has no right to institute this proceeding, it is decreed that said petition be and the same is hereby dismissed."

[1, 2] The petitioner, who appealed, contends that the dismissal of the petition was erroneous because no hearing was given. It cannot be said as matter of law that there was no hearing. The wording of the decree plainly indicates that a hearing was had on the question whether the petitioner was a "friend" of the respondent as required by the statute. The inquiry as to his personal relations with the respondent was one of fact, and there being no report of the evidence, nor report by the judge of the material facts found by him as provided in G. L. c. 215, § 11, the finding is conclusive. O'Neill v. O'Neill, 231 Mass. 258, 120 N. E. 690; Hale v. Blanchard, 242 Mass. 262, 136 N. E. 102; Burns v. Hovey, 242 Mass. 368, 136 N. E. 246; G. L. c. 215, § 12; chapter 214, §§ 24, 25; chapter 231, § 125.

Decree affirmed.

PORTER v. SPRING.

(Supreme Judicial Court of Massachusetts. Franklin. Oct. 18, 1924.)

1. Appeal and error 694(1)-Facts found by master, unless inconsistent, must stand, where evidence not reported.

On appeal in equity case, where evidence is not reported, facts found by master must stand, unless mutually inconsistent or contradictory.

2. Wills 797-Election to claim curtesy,

contained in same instrument as waiver of will, held avoidable on ground of mistake.

16, and election to claim curtesy, under Rev. Waiver of will, under Rev. Laws, c. 135, § Laws, c. 132, § 1, as amended by St. 1915, c. 134, both contained in one form, amounted to exercise of two independent and separable rights of husband, and claim of curtesy may be avoided, under equitable doctrine of relief against legal consequences of accident or mistake.

3. Wills 799-Act of filing election to claim curtesy exercise of personal right.

Act of filing election to claim curtesy under Rev. Laws, c. 132, § 1, as amended by St. 1915, c. 134, is exercise of personal right, and no contract or attempt to make contract is involved.

4. Wills 797-Avoidance, because of mistake, of election to claim, not precluded on theory of presumption of knowledge of contents.

Doctrine that ordinarily one must be presumed to know contents of instrument in writ

ing signed by him and be bound by its legal effect has no application to cases of mistake, as waiver of will and election to claim curtesy, where attorney prepares form containing both and husband signs both, believing that he is only waiving will.

5. Wills 797-Rule that mistake of only one party does not warrant relief not applicable to instrument executed by only one party.

Rule that simple mistake of only one party to written contract does not amount to mutual mistake, warranting relief against consequences, does not apply in case of execution and filing of election to claim curtesy, by husband being only one party to it. who intended only to file waiver of will, there

6. Wills 797-Filing, by attorney of election to claim curtesy, contrary to intent of husband, held relievable against, as accident or mistake.

When intent of husband was not to claim curtesy, but to waive wife's will, filing of paper of that tenor by third person, even though his attorney, was accident or mistake on husband's part, warranting relief in equity.

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

(145 N.E.)

7. Appeal and error 907 (2)—Intent to elect curtesy held not inferable in direct contravention of actual intent found by master: No intent to elect curtesy could be presumed from filing of election to claim, alleged to be by mistake, in direct contravention of actual intent found by master; evidence not being reported.

8. Wills 797-Remedy for improperly filing by attorney by mistake of election to claim curtesy not exclusively against attorney.

Where husband desired to file waiver of wife's will, and counsel through mistake executed both waiver of will and election to claim curtesy, husband's remedy against counsel was not exclusive, but he could resort to equity.

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to the settlement of the estate of his testate wife. After a demurrer to the bill had been overruled, the case was referred to a master, under a rule which required him to make report of his findings together with such facts and questions of law as either party might request.

[1] The evidence is not reported. Therefore the facts found by the master must stand unless they are mutually inconsistent or contradictory. Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420, and cases there collected; Volpe v. Sensatini, 249 Mass. 144 N. E. 104. There is no incongruity in the several findings made. Hence they must be accepted as true.

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The facts as found by the master are that the wife of the plaintiff deceased in 1917 without issue, leaving personal estate insufficient to pay her debts and charges of administration and leaving real and personal estate of not exceeding in the aggregate $5,000. She left a will and codicil, the provisions of which were less favorable to the financial interests of the plaintiff than the provisions of the statutes then in force. R. L. c. 140, § 3 (third); R. L. c. 135, § 16. The plaintiff seasonably consulted an attorney at law by whom he was advised as to the waiver of the testamentary provisions made in his behalf by his deceased wife and by whom he was sent to another attorney

at law at the county seat to have the waiver filed. The plaintiff told the latter attorney that he wished to waive the provisions of his

One cannot slumber on his rights and wife's will. A blank form was obtained and thereafter pray for relief in equity.

12. Wills 797-Testimony by husband of conversations with attorney held admissible in suit to set aside claim for curtesy.

In suit by husband to set aside claim for curtesy filed by him through mistake of his attorney, testimony by husband as to conversations with his attorney touching his purpose in consulting him, and stating categorically his own intent as to claiming curtesy, was properly admitted.

the plaintiff was directed to sign it in two places. This form contained two blanks, on a single sheet of paper, one a waiver of the will under R. L. c. 135, § 16, and the other an election to claim curtesy, under R. L. c. 132, § 1, as amended by St. 1915, c. 134. Both blanks were filled out and signed by the plaintiff at the same time pursuant to guidance and advice of able counsel. The single sheet of paper containing both statements was filed with the probate records. The plaintiff intended when signing this pa

Appeal from Supreme Judicial Court, per to waive the provisions of his wife's will, Franklin County.

Suit in equity by Charles F. Porter against Nettie J. Spring to have set aside claim for curtesy. Decree for plaintiff, and defendant appeals. Affirmed.

W. A. Davenport, Charles Fairhurst, and W. L. Davenport, all of Greenfield, for appellant.

but did not intend to claim curtesy. The master further finds that:

"If there was a mistake in filing the paper in the Probate Court it was through mistake of his counsel and not by reason of any misapprehension of its effect on the part of the plaintiff himself."

The plaintiff first learned in August, 1918,

James A. Stiles, of Fitchburg, for appel- that there was trouble with his waiver. He

lee.

thereafter consulted various lawyers and the present bill was filed in May, 1921, the ti tle to the real estate having remained unchanged since the death of the wife.

RUGG, C. J. This is a suit in equity wherein the plaintiff seeks to have set aside a claim for curtesy filed by him with respect The finding of the master is not quite For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

clear. We interpret it though with some hesitation, to mean that there was accident and mistake so far as concerns the plaintiff himself; that he had no purpose or design to elect to claim curtesy in the estate of his wife, but only to waive the testamentary provisions. made for him by her, and that through some misadventure amounting to accident or mistake on the part of his counsel, the election to claim curtesy was filed contrary to the plaintiff's desire and intention.

[2-8] The two papers as filed were clear in terms and in legal effect. They conformed to the terms of the statute and amounted to the exercise of two distinct, independent and separable rights of the plaintiff with respect to the estate of his wife. Mathews v. Mathews, 141 Mass. 511, 6 N. E. 776. So long as they both stand, they are unequivocal declarations by him. No reason is perceived why the equitable doctrine in favor of relief against the legal consequences of accident or mistake should not be invoked. The act of the plaintiff in filing the election to claim curtesy was the exercise of a personal right. Jones v. Maguire, 221 Mass. 315, 108 N. E. 1073. No contract or attempt to make a contract is involved. The interests of no third party have intervened, because the title is in the same state now as at the death of the wife, except so far as affected by the papers signed by the plaintiff and filed. It is manifest that in the exercise of sound judgment there was no ground in the facts here disclosed for the filing by the plaintiff of an election to take curtesy, while there was ample basis for filing a waiver of the provisions of the will. Naylor v. Nourse, 231 Mass. 341, 343, 121 N. E. 26. The doctrine that ordinarily one must be presumed to know the contents of instruments in writing signed by him and be bound by their legal effect is well settled. Clark v. Boston, 179 Mass. 409, 60 N. E. 793; Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218, 226, 90 N. E. 598; Alemian v. American Express Co., 237 Mass. 580, 585, 130 N. E. 253; Gold v. Boston Elevated Railway, 244 Mass. 144, 147, 138 N. E. 251. But it has no application to cases of mistake. The simple mistake of only one party to a written contract as to its contents or legal effect in the absence of misrepresentation, fraud or duress does not amount to a mutual mistake such as alone, in cases of that nature, warrants the interposition of equity to reform or relieve against the consequences of the contract as written. Dzuris v. Pierce, 216 Mass. 132, 135, 103 N. E. 296. That principle is not relevant to the facts of the case at bar, because the plaintiff was the only party to the execution and filing of the election to claim curtesy although the interests of others might be affected by a completed election. When the intent or design of the plaintiff was not to

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claim curtesy, the filing of a paper of that tenor by a third person, even though his attorney, was an accident or mistake on the plaintiff's part. Taylor v. Buttrick, 165 Mass. 547, 43 N. E. 507, 52 Am. St. Rep. 530; Parke v. Boston, 175 Mass. 464, 56 N. E. 718; Fells' Case, 226 Mass. 380, 115 N. E. 430. No intention to elect curtesy can be presumed in direct contravention of the ac tual intent found by the master. Watson v. Watson, 128 Mass. 152, 155. In the circumstances here disclosed the remedy against counsel is not exclusive, Amherst College v. Allen, 165 Mass. 178, 42 N. E. 570, but the petitioner may resort to equity. The doctrine of mistake is applicable to the peculiar facts revealed on this record. Reggio v. Warren, 207 Mass. 525, 533, 534, 535, 93 N. E. 805, 32 L. R. A. (N. S.) 340, 20 Ann. Cas. 1244. There is nothing in Shelton v. Sears, 187 Mass. 455, 460, 73 N. E. 666, at variance with this conclusion, which is supported by the principle of numerous decisions in other jurisdictions. Macknet V. Mackneť, 29 N. J. Eq. 54; Waggoner v. Waggoner, 111 Va. 325, 68 S. E. 990, 30 L. R. A. (N. S.) 644; Craven v. Craven, 181 Ky. 428, 431, 205 S. W. 406; Wohlers v. Griesse, 179 Iowa, 629, 161 N. W. 662; Dudley v. Pigg, 149 Ind. 363, 367, 48 N. E. 642; Woodburn's Estate, 138 Pa. 606, 614, 21 Atl. 16, 21 Am. St. Rep. 932; Evans's Appeal, 51 Conn. 435; Tolley v. Poteet, 62 W. Va. 231, 246, 57 S. E. 811; Story's Fq. (14th Ed.) § 119.

[9] The findings of the master do not go to the extent of establishing negligence on the part of the petitioner. He consulted competent counsel betimes and was guided by their advice. Dzuris v. Pierce, 216 Mass. 132, 137, 103 N. E. 296; Reggio v. Warren, 207 Mass. 525, 93 N. E. 805, 32 L. R. A. (N. S.) 340, 20 Ann. Cas. 1244.

[10, 11] The plaintiff is not barred by laches from maintaining his bill. One cannot slumber on his rights and thereafter pray for relief in equity. No one has suffered by the delay of the plaintiff in the case at bar, and it has not been unreasonably long. O'Brien v. O'Brien, 238 Mass. 403, 411, 131 N. E. 177; New York Central Railroad v. Ayer, 239 Mass. 70, 77, 78, 131 N. E. 325.

[12] There was no error in the admission of testimony by the plaintiff of conversations with his attorney touching his purpose in consulting him or in stating categorically his own intent as to claiming curtesy. The plaintiff's whole case rested upon the contention that by accident or mistake his own settled design as to his wife's estate had been frustrated. Any competent evidence was admissible to prove that part of his case. His declarations in the circumstances here shown had probative value in that connection and were competent. Butterfield v. Reed, 160 Mass. 361, 370, 35 N. E. 1128; Sherman v. Sherman, 193 Mass. 400, 79 N. E.

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