set aside. Hoshor-Platt Co. v. Miller, 190 Appeal from Superior Court, Franklin Mass. 285, 76 N. E. 650; Fuller v. Fuller, 234 County; P. M. Keating, Judge. Mass. 187, 125 N. E. 499; Glover v. Waltham

Bill in equity by Jonathan R. Smith to Laundry Co., 235 Mass. 330, 127 N. E. 420. restrain Walter A. Wells from trespassing It is manifest that the defendant's bid was

on plaintiff's premises and to recover dammuch below the fair value. But the power

ages. Decree for defendant, and plaintif permitted him to buy, and if it is assumed

appeals. Decree reversed, and decree enthat his purpose was to make as much money

tered. as possible, that is insufficient to reopen the foreclosure where as in the case at bar the

Wm. A. Davenport and Chas. Fairhurst, evidence fails to show bad faith in the exer- both of Greenfield, for appellant. cise of the power. Ryder v. Brockton Sav

Frank J. Lawler, of Greenfield, for apings Bank, 235 Mass. 476, 478, 127 N. E. 234; pellee. Talbot v. Gingras, 246 Mass. 356, 359, 141 N. E. 239. The bill does not allege, nor does

PIERCE, J. This is a bill in equity to the record show, that an adjournment would restrain the defendant from trespassing on have resulted in a larger attendance, or an

the plaintiff's premises and to recover damincreased price, and inadequacy of considera- ages already caused by such alleged trespass. tion, is of itself insufficient to set the sale After the filing of the answer the case was aside. Fennyery v. Ransom, 170 Mass. 303, referred to a master “to hear the parties 49 N. E. 620; Taylor v. Weingartner, 223 and their evidence, and report his findings

to the court together with such facts and Mass. 243, 247, 111 N. E. 909. The defendant, who filed a cross-bill offer questions of law as either party may re

quest." ed no evidence thereon before the master, but, no decree having been entered and ap- plaintiff is and has been for many years the

In substance, the master found that the peal taken, it is not before us.

The result is that the suit cannot be main- owner of several tracts of land in Hawley tained, and the final decree for the plaintiff and in Ashfield which are described in the must be reversed, and a decree entered dis- plaintiff's bill; that on May 28, 1918, by war

ranty deed he conveyed to the defendant missing the bill. Ordered accordingly.

"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 SMITH v. WELLS.

timber. He is to have the privilege of setting (Supreme Judicial Court of Massachusetts. a steam mill and sticking up lumber on any Franklin. Oct. 18, 1924.)

part of said premises except mowing land

at any time during said six years"; that 1. Injunction 126-Burden rested on defendant taking timber after time limited the defendant entered upon the land, upon therefor under deed to show that he had which it is estimated that there was some license.

thing like 3,000,000 feet of standing timber, In action to enjoin trespass and to recover and began lumbering operations; that the damages for timber taken by defendant after six years under the deed, during which the expiration of time allowed for removal of defendant might enter and cut and remove timber under deed, burden of proof was on de- lumber, expired at midnight on May 28, 1924; fendant to show that he had license from plain that the defendant cut trees prior to May tiff to remove timber after expiration of period. 28, 1924, "some of which were limbed and 2 Injunction en 128—Finding that grantor of some of which were not limbed out, which

timber did not give license to remove after would make 150,000 feet of lumber; that time limited therefor justified by evidence. these trees were worth, as they lay upon the

Finding of master that grantor of timber ground, $10 per thousand feet; that it shall did not give defendant oral license to remove cost $3 per thousand to cut them; timber after expiration of time specified in that the purpose of the defendant in cutting deed held justified by evidence.

these trees was to cut down all the trees he 3. Logs and logging Ow3(14)-Deed of tim- could before the time expired, with a view

ber limiting time for cutting and removal to getting them off the premises after the gives no right after expiration of time to time expires"; that at the expiration of the remove timber already cut.

time set in the deed the defendant had 200,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 condi- valued at $4,000; that he had 100,000 feet

were severed from the realty and sawed out, tional and determinable on removal within time stated with reverter of title to grantor in

cut from the stump and piled, not sawed, case it is not removed, and timber cut and worth $2,000; that he had 150,000 feet of sawed before expiration of time cannot be logs cut from the stump and scattered, not removed after such time.

piled, worth $1,500; and that he had a portfor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(145 N.E.) able sawmill and certain tools used in the scribed premises with a provision which speclumbering trade which have remained upon files a time within which the wood or timber the premises. The plaintiff does not con- shall be cut and removed conveys a title to tend that he is entitled to the sawmill and the wood or timber which is conditional and tools, nor object to their removal by the de- determinable on the removal of the wood or fendant.

timber within the time stated, with a reAfter May 28, 1924, the defendant entered verter of title to the grantor in case the wood the premises for the purpose of yarding and or timber be not so removed. Lawrence v. sawing logs and removing lumber therefrom Gifford, 17 Pick. 366; Kemble v. Dresser, and continued so to do until he was stopped 1 Metc. 271, 35 Am. Dec. 364; Reed v. by an injunction of the superior court on Merrifield, 10 Metc. 155; White v. Foster, June 4, 1924. The defendant claimed and 102 Mass. 375;' Perkins v. Stockwell, 131 offered evidence tending to support his claim Mass. 529; Oesting v. New Bedford, 210 that the plaintiff at a time before May 28, Mass. 396, 400, 96 N. E. 1095; Ball v. Street1924, "gave him oral permission or license to er, 225 Mass. 100, 103, 113 N. E. 1034; Smith continue to saw out and remove timber after V. Ramsey, 116 Va. 530, 82 S. E. 189, 15 A. the expiration of the time limited in the L. R. 32, note. No sound distinction can be deed." In this regard the master specifical- made between sawed timber not removed ly found that:

within the time limit, and timber cut io 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 It becomes unnecessary to consider the objection. But, he added, "You had better plaintiff's exceptions to the master's report; see the Federal Land Bank,' and on another the defendant's exceptions are not argued. occasion, 'I have no objection, but I don't think

It results that the decree must be reversed, the bank will stand for it. And again, upon and a decree with costs entered for the plainthe afternoon of May 27 or the morning of tiff as prayed for in conformity to this opin. May 28, when the plaintiff brought the defend

ion. ant a notice from the Federal Land Bank of Springfield forbidding any further operations

Ordered accordingly. 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

FLAHERTY v. WHITIN. The plaintiff specifically denied any such (Supreme Judicial Court of Massachusetts. conversations or that he gave the defend

Worcester. Oct. 18, 1924.) ant any permission, but the master found that conversations took place substantially

1. Insane persons em33(2)-Record held not

to show that there was no hearing of peti. as above stated.

tion for appointment of conservator. [1, 2] The master ruled rightly that the

Where record only shows petition for apburden of proof was on the defendant to pointment of conservator under Gen. Laws, c. show that he had license; and justified by 201, § 16, and decree stating substance of petithe evidence above reported in full properly tion and concluding that petitioner is not friend found as a fact “that the plaintiff gave the of respondent and has no right to institute prodefendant no permission or license to con- ceeding, it cannot be said as matter of law that tinue, and that he did not mislead him to there was no hearing, as contended by petitionhis damage." By reason of this finding of

er on appeal. fact it becomes unnecessary to decide wheth- 2. Appeal and error em 694(1)-Finding that er an oral license given under the circum petitioner for appointment of conservator was stances of this case is revocable or irrevoca

not friend of respondent one of fact, and conble, as the plaintiff and defendant respec

clusive, in absence of evidence. tively contend. See Fletcher y. Livingston,

On petition for appointment of conservator 153 Mass. 388, 26 N. E. 1001.

of property of one of advanced age and mental

weakness, under Gen. Laws, c. 201, § 16, find13] 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, 8$ 24, 25, and of chapter 231, § 125.


Appeal from Probate Court, Worcester (Supreme Judicial Court of Massachusetts. County, F. H. Chamberlain, Judge.

Franklin. Oct. 18, 1924.) Petition by Michael F. Flaherty for appointment of conservator of property of I. Appeal and error Omw 694(1)-Facts found Arthur F. Whitin, by reason of advanced age by master, unless inconsistent, must stand, and mental weakness. Petition was dis where evidence not reported. missed, and petitioner appeals. Affirmed.

On appeal in equity case, where evidence Thayer, Smith & Gaskill, of Worcester, for is not reported, facts found by master must respondent.

stand, unless mutually inconsistent or contra

dictory. BRALEY, J. The petition, which is in con

2. Wills 797 - Election to claim curtesy, formity with G. L. C. 201, § 16, alleges that

contained in same instrument as waiver of the respondent by reason of advanced age

will, held avoidable on ground of mistake. and mental weakness has become incapacita

Waiver of will, under Rev. Laws, c. 135, $ ted to properly care for his property, “where 16, and election to claim curtesy, under Rev. fore your petitioner, a friend of said Arthur Laws, c. 132, § 1, as amended by St. 1915, c. F. Whitin, prays, that some suitable person 134, both contained in one form, amounted to be appointed conservator of the property of exercise of two independent and separable said Arthur F. Whitin agreeable to the law rights of husband, and claim of curtesy may be in such case made and provided, and that avoided, under equitable doctrine of relief the statements herein contained are true to against legal consequences of accident or misthe best of his knowledge and belief."


It was signed, verified, and filed by the peti- 3. Wills Bm799—Act of filing election to claim tioner, and, a citation having issued, the re

ourtesy exercise of personal right. spondent appeared by counsel, who, without

Act of filing election to claim curtesy unassigning any reasons therefor, moved that

der Rev. Laws, c. 132, § 1, as amended by St. the petition be dismissed. The court of

1915, c. 134, is exercise of personal right, and probate on the face of the record had juris- no contract or attempt to make contract is indiction of the parties and of the subject volved. matter of the petition. G. L. c. 201, $$ 16, 17. See section 21. The record is bare of any 4. Wills 797–Avoidance, because of misfurther recitals except the decree, which, take, of election to claim, not precluded on after stating the substance of the petition, theory of presumption of knowledge of conconcludes:


Doctrine that ordinarily one must be pre"'It appearing that said petitioner is not a friend of said Arthur F. Whitin within the ing signed by him and be bound by its legal ef

sumed to know contents of instrument in writtrue meaning and intent of section 16 of chap- fect has no application to cases of mistake, as ter 201 of the General Laws of said common- where attorney prepares form containing both wealth and therefore has no right to institute waiver of will and election to claim curtesy, this proceeding, it is decreed that said petition and husband signs both, believing that he is be and the same is hereby dismissed."

only waiving will. [1, 2] The petitioner, who appealed, con

5. Wills Ow797-Rule that mistake of only tends that the dismissal of the petition was

one party does not warrant relief not applierroneous because no hearing was given. It

cable to instrument executed by only one cannot be said as matter of law that there

party. was no hearing. The wording of the de

Rule that simple mistake of only one party cree plainly indicates that a hearing was to written contract does not amount to mutual had on the question whether the petitioner mistake, warranting relief against consequencwas a "friend” of the respondent as required es, does not apply in case of execution and filby the statute. The inquiry as to his per-ing of election to claim curtesy, by husband sonal relations with the respondent was one being only one party to it.

who intended only to file waiver of will, there of fact, and there being no report of the evidence, nor report by the judge of the 6. Wills Em797-Filing, by attorney of elecmaterial facts found by him as provided in

tion to claim curtesy, contrary to intent of G. L. c. 215, $ 11, the finding is conclusive.

husband, held relievable against, as accident O'Neill v. O'Neill, 231 Mass. 258, 120 N. E. or mistake. 690; Hale v. Blanchard, 242 Mass. 262, 136 When intent of husband was not to claim N. E. 102; Burns v. Hovey, 242 Mass. 368, curtesy, but to waive wife's will, filing of pa136 N. E. 246; G. L. c. 215, $ 12; chapter per of that tenor by third person, even though 214, 88 24, 25; chapter 231, 8 125.

his attorney, was accident or mistake on husDecree affirmed.

band's part, warranting relief in equity.
Om 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 to the settlement of the estate of his testate elect curtesy held not inferable in direct con- wife. After a demurrer to the bill had been travention of actual intent found by master: overruled, the case was referred to a master,

No intent to elect curtesy could be pre- under a rule which required him to make sumed from filing of election to claim, alleged report of his findings together with such to be by mistake, in direct contravention of facts and questions of law as either party actual intent found by master; evidence not

might request. being reported.

[1] The evidence is not reported. There8. Wills 797—Remedy for improperly Alling fore the facts found by the master must stand

by attorney by mistake of election to daim unless they are mutually inconsistent or concurtesy not exclusively against attorney. tradictory. Glover v. Waltham Laundry Co.,

Where husband desired to file waiver of 235 Mass. 330, 334, 127 N. E. 420, and cases wife's will, and counsel through mistake exe- there collected; Volpe v. Sensatini, 249 Mass. cuted both waiver of will and election to claim

- 144 N. E. 104. There is no incongruity curtesy, husband's remedy against counsel was

in the several findings made. Hence they pot exclusive, but he could resort to equity.

must be accepted as true. 9. Wills 797-Filing of election to claim

The facts as found by the master are that curtesy through mistake of counsel held not the wife of the plaintiff deceased in 1917 to show negligence.

without issue, leaving personal estate insufHusband, filing both waiver of wife's will ficient to pay her debts and charges of adand election to claim curtesy, when he only in- ministration and leaving real and personal tended to file waiver of will, could not be said estate of not exceeding in the aggregate $5,to 'be negligent in executing election to claim 000. She left a will and codicil, the provi. curtesy, through attorney's mistake, where be sions of which were less favorable to the consulted competent counsel and was guided financial interests of the plaintiff than the by their advice.

provisions of the statutes then in force. R. 10. Wills 797 - Husband, suing to have L. C. 140, § 3 (third); R. L. C. 135, § 16.

claim for curtesy set aside, held not guilty The plaintiff seasonably consulted an attorof laches.

ney at law by whom he was advised as to Husband, suing to set aside claim for cur

the waiver of the testamentary provisions tesy filed by him by mistake of counsel, was

made in his behalf by his deceased wife and not barred by laches, where no one suffered by by whom he was sent to another attorney his delay, and it was not unreasonably long.

at law at the county seat to have the waiver II. Equity 67 – One cannot slumber on filed. The plaintiff told the latter attorney rights.

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.

the plaintiff was directed to sign it in two

places. This form contained two blanks, 12 Wills Ow797 — Testimony by husband of

on a single sheet of paper, one a waiver of conversations with attorney held admissible

the will under R. L. c. 135, § 16, and the in suit to set aside claim for curtesy.

In suit by husband to set aside claim for other an election to claim curtesy, under R. curtesy filed by him through mistake of his at- L. C. 132, § 1, as amended by St. 1915, c. torney, testimony by husband as to conversa

134. Both blanks were filled out and signed tions with his attorney touching his purpose in by the plaintiff at the same time pursuant consulting him, and stating categorically his to guidance and advice of able counsel. The own intent as to claiming curtesy, was prop- single sheet of paper containing both stateerly admitted.

ments was filed with the probate records.

The plaintiff intended when signing this paAppeal from Supreme Judicial Court, per to waive the provisions of his wife's will, Franklin County.

but did not intend to claim curtesy. The

master further finds that: Suit in equity by Charles F. Porter against Nettie J. Spring to have set aside claim for "If there was a mistake in filing the paper in curtesy. Decree for plaintiff, and defendant the Probate Court it was through mistake of appeals. Affirmed.

his counsel and not by reason of any misap

prehension of its effect on the part of the W. A. Davenport, Charles Fairhurst, and plaintiff himself." W. L. Davenport, all of Greenfield, for appellant. James A. Stiles, of Fitchburg, for appel

The plaintiff first learned in August, 1918,

that there was trouble with his waiver.' He lee.

thereafter consulted various lawyers and the

present bill was filed in May, 1921, the ti RUGG, C. J. This is a suit in equity tle to the real estate having remained unwherein the plaintiff seeks to have set aside changed since the death of the wife. 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 claim curtesy, the filing of a paper of that hesitation, to mean that there was accident tenor by a third person, even though his atand mistake so far as concerns the plaintiff torney, was an accident or mistake on the himself; that he had no purpose or design plaintiff's part. Taylor v. Buttrick, 165 Mass. to elect to claim curtesy in the estate of his 547, 43 N. E. 507, 52 Am. St. Rep. 530; wife, but only to waive the testamentary pro- Parke v. Boston, 175 Mass. 464, 56 N. E. visions made for him by her, and that 718; Fells' Case, 226 Mass. 380, 115 N. E. through some misadventure amounting to ac- 430. No intention to elect curtesy can be cident or mistake on the part of his coun- presumed in direct contravention of the ac. sel, the election to claim curtesy was filed tual intent found by the master. Watson contrary to the plaintiff's desire and inten v. Watson, 128 Mass. 152, 155. In the cir. tion.

cumstances here disclosed the remedy against (2-8) The two papers as filed were clear counsel is not exclusive, Amherst College v. in terms and in legal effect. They conformed Allen, 165 Mass. 178, 42 N. E. 570, but the to the terms of the statute and amounted to petitioner may resort to equity. The docthe exercise of two distinct, independent and trine of mistake is applicable to the peculiar separable rights of the plaintiff with respect facts revealed on this record. Reggio v. to the estate of his wife. Mathews v. Math- Warren, 207 Mass. 525, 533, 534, 535, 93 ews, 141 Mass. 511, 6 N. E. 776. So long as N. E. 805, 32 L. R. A. (N. S.) 340, 20 Ann. they both stand, they are unequivocal decla- Cas. 1244. There is nothing in Shelton v. rations by him. No reason is perceived why Sears, 187 Mass. 455, 460, 73 N. E. 666, at the equitable doctrine in favor of relief variance with this conclusion, which is supagainst the legal consequences of accident or ported by the principle of numerous deci. mistake should not be invoked. The act of sions in other jurisdictions. Macknet v. the plaintiff in filing the election to claim Macknet, 29 N. J. Eq. 54; Waggoner y. Wagcurtesy was the exercise of a personal right. goner, 111 Va. 325, 68 S. E. 990, 30 L. R. A. Jones v. Maguire, 221 Mass. 315, 108 N. E. (N. S.) 644; Craven v. Craven, 181 Ky. 428, 1073. No contract or attempt to make a con- 431, 205 S. W. 406; Wohlers v. Griesse, 179 tract is involved. The interests of no third Iowa, 629, 161 N. W. 662; Dudley v. Pigg, party have intervened, because the title is in 149 Ind. 363, 367, 48 N. E. 642; Woodburn's the same state now as at the death of the wife, Estate, 138 Pa. 606, 614, 21 Atl. 16, 21 Am. except so far as affected by the papers signed St. Rep. 932; Evans's Appeal, 51 Conn. 435 ; by the plaintiff and filed. It is manifest that Tolley v. Poteet, 62 W. Va. 231, 246, 57 S. in the exercise of sound judgment there was E. 811 ; Story's Eq. (14th Ed.) § 119. no ground in the facts here disclosed for the [9] The findings of the master do not go filing by the plaintiff of an election to take to the extent of establishing negligence on curtesy, while there was ample basis for fil- the part of the petitioner. He consulted ing a waiver of the provisions of the will. competent counsel betimes and was guided Naylor v. Nourse, 231 Mass. 341, 343, 121 by their advice. Dzuris v. Pierce, 216 Mass. N. E. 26. The doctrine that ordinarily one 132, 137, 103 N. E. 296; Reggio v. Warren, must be presumed to know the contents of 207 Mass. 525, 93 N. E. 805, 32 L. R. A. (N. instruments in writing signed by him and be s.) 340, 20 Ann. Cas. 1244. bound by their legal effect is well settled. (10, 11]' The plaintiff is not barred by lachClark v. Boston, 179 Mass. 409, 60 N. E. es from maintaining his bill. One cannot 793; Wheaton Building & Lumber Co. v. slumber on his rights and thereafter pray Boston, 204 Mass. 218, 226, 90 N. E. 598; for relief in equity. No one has suffered by Alemian v. American Express Co., 237 Mass. the delay of the plaintiff in the case at bar, 580, 585, 130 N. E. 253; Gold v. Boston Ele- and it has not been unreasonably long. vated Railway, 244 Mass. 144, 147, 138 N. O'Brien v. O'Brien, 238 Mass. 403, 411, 131 E. 251. But it has no application to cases N. E. 177; New York Central Railroad v. of mistake. The simple mistake of only one Ayer, 239 Mass. 70, 77, 78, 131 N. E. 325. party to a written contract as to its contents [12] There was no error in the admission or legal effect in the absence of misrepresen- of testimony by the plaintiff of conversatation, fraud or duress does not amount to tions with his attorney touching his purpose a mutual mistake such as alone, in cases in consulting him or in stating categorically of that nature, warrants the interposition his own intent as to claiming curtesy. The of equity to reform or relieve against the plaintiff's whole case rested upon the conconsequences of the contract as written. tention that by accident or mistake his own Dzuris v. Pierce, 216 Mass. 132, 135, 103 settled design as to his wife's estate had N. E. 296. That principle is not relevant to been frustrated. Any competent evidence the facts of the case at bar, because the plain- was admissible to prove that part of his tiff was the only party to the execution and case. His declarations in the circumstances filing of the election to claim curtesy al- here shown had probative value in that conthough the interests of others might be nection and were competent. Butterfield v. affected by a completed election. When the Reed, 160 Mass. 361, 370, 35 N. E. 1128; Sher. intent or design of the plaintiff was not to man v. Sherman, 193 Mass. 400, 79 N. E.

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