(146 N.E.) There was error, however, in entering the order for disbarment. It was not in accordance with law that the order for disbarment should be rested solely on the ground of perjury committed in the course of the trial for disbarment. quests for rulings. Randall, Petitioner, 11, the respondent saw each other by prearAllen, 473; Randall v. Brigham, 7 Wall. 523, rangement, in the presence of others, in New 19 L. Ed. 285; Ex parte Wall, 107 U. S. York and that thereafter each made affida265, 2 S. Ct. 569, 27 L. Ed. 552; Matter, of vit that he had never before seen the other, Allin, 224 Mass. 9, 99, 112 N. E. 494, and and that the one had never been the client cases there collected. of the other. The motion was denied and the respondent excepted. It appears from the findings of the single justice, as recited in the main bill of exceptions, that Hunnewell was in New York at the time of the trial and refused to come to this commonwealth to give testimony, and that his deposition was not taken. The motion was in substance and effect to grant a new trial because of newly discovered evidence. The disposition of such a motion commonly rests in sound judicial discretion. The single justice well may have thought that this was not newly discovered evidence, but had been available to the respondent at all crucial times. Apparently it was simply corroborative of evidence given at the trial. The conduct of Hunnewell, in connection with the whole transaction, and especially in refusing to come within the commonweath so that he could be called as a witness, may have led the court to discredit his affidavit. Even evi If the order for disbarment were to be made on that ground alone, a charge to that effect ought to have been made. If the single justice had issued to the respondent an order to show cause why he should not be stricken from the roll of attorneys for the cause of perjury committed in the pending trial, he could have heard it summarily and entered the judgment thereon which seemed to him to be required. But he did not do that. He distinctly did not enter any judgment on the charges set forth in the petition for disbarment. He rested the order for disbarment exclusively on the perjury set forth in finding No. 4. As already pointed out, that finding was not tainted with error of law and could lawfully have been made. But it could not, standing alone, have been made the sole ground for disbarment. It follows that there was error in the order for judgment; that is, the order for disbarment on the grounds stated. The orders contained in the final sentence of paragraph 8, "No order for disbarment is made on this finding," and in the final sentence of the "findings of fact, ruling and order," namely, "An order may be entered disbarring the respondent solely on the ground of perjury committed in the trial before me," are vacated. The case is to stand for disposition before a single justice upon all the findings of fact made by the justice who heard the case. He is to give all such findings the weight to which they seem entitled and make such order as he thinks justice requires. [13, 14] After the order for disbarment was made, a motion was filed by the respondent to vacate the findings and order theretofore made, on the ground that the order for disbarment for the cause stated was contrary to law. That matter has already been considered and decided on the first bill of exceptions. It is not open on the second bill of exceptions. Some months later a like motion was filed on the ground of newly discovered evidence. That motion was supported by affidavits which, if believed, had a tendency to prove that Hollis H. Hunnewell and dence in truth newly discovered and material The result is that the first bill of exceptions must be sustained. The orders that, "No disbarment is made for this cause," and that, “An order may be entered disbarring the respondent solely on the ground of perjury committed in the trial before me," are vacated. All findings of fact are to stand. The petition is to be heard before a single justice on those findings of fact for such disposition as he may determine. G. L. c. 231, 8 124; Simmons v. Fish, 210 Mass. 563, 97 N. E. 102, Ann. Cas. 1912D, 588; Commonwealth v. Dyer, 243 Mass. 472, 509, 138 N. E. 296. The second bill of exceptions is overruled. The appeals are dismissed. Samuel v. PageStorms Drop Forge Co., 243 Mass. 133, 137 N. E. 169. Ordered accordingly. the pleadings and the proof in that the plain CHAPIN V. HOLLISTER-WILSON LABO- tiff had declared upon a written contract RATORIES. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 30, 1925.) and at the trial attempted to prove an oral modification of this contract which was not, in any way, referred to or set up in the plaintiff's declaration." The defendant rewhich the defendant relied but that the motion was also made upon general grounds." Thereupon the judge allowed a motion of the plaintiff to amend his declaration by add I. Pleading 245 (4)-Amendment to declara-plied "that this was one of the grounds upon tion after close of evidence to sustain action for cause intended held authorized. In action for breach of contract, under which plaintiff was employed as defendant's sales agent in certain territory, there was no error, in view of G. L. c. 231, § 51, in permit-ing "count 2," and the defendant excepted. ting amendment to declaration after close of all evidence, to enable plaintiff to sustain action for cause intended. 2. Master and servant 21-Agreement held not to intend either party could terminate it, unless plaintiff sold minimum sum of goods per month. Agreement that plaintiff would be paid 20 per cent. on first $8,000 net sold in certain territory each month, it being understood that practical workings could not be definitely estimated and that agreement would be tentative for one year, held not to intend that without payment of damages either party might repudiate it whenever in any month plaintiff should not sell goods to amount of $8,000. 3. Master and servant 40(3)—Evidence held to show breach of contract with salesman. In action for breach of contract whereby plaintiff was employed as sales agent for certain territory for definite period, evidence held to sustain finding that he fully performed contract and that he was prevented from going on with it without legal justification. The contract, set out by reference in counts 1 and 2 of the declaration, among other things provided: "It is understood that Mr. Chapin will devote his entire time to the promotion of the Hollister-Wilson Laboratories' products in the territory under his jurisdiction and that he will personally cover the more important buying centers and will engage enough salesmen so that the territory will be adequately covered.* It is also understood that any salesmen engaged by Mr. Chapin are in fact and shall be considtories and that the special territorial advantagered employees of the Hollister-Wilson Laboraes offered under this agreement are made to cover the administrative services rendered by Mr. Chapin." The evidence introduced at the trial warranted a finding that, subsequent to the execution of the alleged contract, the president and manager of the defendant corporation shortly after February 16, 1920, told the plaintiff "he would have to give up the New York territory but he would be allowed to pick up his former or similar connections"; that the plaintiff did not assent to the declaration of the manager, and from that time In action for breach of contract, whereby until May, 1920, made every effort to fulfill plaintiff was employed as sales agent in certain his part of the contract, receiving of the deterritory evidence of sales within territory made fendant the advances and payments as prowithin reasonable time before and after agree-vided in the original contract, with the exment was admissible to estimate value of contract to plaintiff. 4. Master and servant 40(2)—Evidence of sales held competent to show value of contract to plaintiff. ception of a payment which was due to be made on May 1 and on May 15, 1920; that Exceptions from Superior Court, Suffolk during May, 1920, Messrs. Lowenstein, HolCounty; R. F. Raymond, Judge. Action of contract by Louis F. Chapin against the Hollister-Wilson Laboratories to recover for breach of alleged contract under which plaintiff was employed as sales agent. Verdict for plaintiff, and defendant excepts. Exceptions overruled. C. W. Bond, of Boston, for plaintiff. lister, and Burns, officers of the defendant Corporation, instructed the plaintiff that he must get out of the New York territory and the territory additional to the New England territory, and confine his efforts to Greater Boston; that they said he had no contract, and suggested a new working arrangement on a commission basis, he to pick up his old connections or similar ones, if possible, and not devote his entire time to the defendant's services; that the plaintiff then made an audit of his Boston office, checked up his stock, and then removed from the office all the property of the defendant. The allowance of the amendment was fully authorized by G. L. c. 231, § 51, "enable the plaintiff to sustain the action for the cause for which it was intended to be brought." Pizer v. Hunt. -, 146 N. E. 7. PIERCE, J. [1] This is an action to recover damages for the breach of a contract, alleged to have been made between the plaintiff and defendant on January 30, 1920. At the close of all the evidence the defendant moved for a directed verdict. The judge asked "if the motion was made on the ground that there was a variance between 249 Mass. (146 N.E.) ant. [2] The defendant contends that the con- should have the co-operation of the defendtract taken as a whole contemplated that the plaintiff should sell goods in the amount of $8,000 per month, and that if this was not done, or for any other reason, the defendant, or either party, had the right to terminate the agreement within the period of one year; and if it was not terminated then, either party had a right to renew the contract for five years if the sales for the first year amounted to $8,000 per month or over. The provision of the contract as to "remuneration" reads: "It is understood and agreed that Mr. Chapin will be paid 20 per cent. on the first $8,000 net sold in the territory outlined above each month. Upon sales above this amount per month, a graduated commission will be given. He will be allowed a drawing account of $500 per month, which will be sent in checks of $250.00 on the 1st and 15th of each month. Drawing account will be increased $300 per month to cover each new salesman employed operating in the territory mentioned. This arrangement is made on the basis of the volume indicated and on the assumption that this amount can be delivered by Mr. Chapin and three additional salesmen. The contract also stated: "It is understood that the practical workings of the agreement cannot be definitely estimated and that it will be tentative for a period of one year with the privilege of renewal for the next five years if the sales for the first year amount to $8,000.00 per month or over, or a volume which shall be satisfactory to the HollisterWilson Laboratories." It is plain it was never intended that, without the payment of damages, either party to the agreement might with or without reason repudiate the contract whenever in any month the plaintiff should not sell goods in the amount of $8,000. The practical workings of the agreement could not be definitely estimated, accordingly, the provision as to the sales was said to be "tentative"; that is, experimental during the year, with a fixed monthly drawing account of $500. payable "on the 1st and 15th of each month." [3, 4] The contention of the defendant that there was no evidence to support the second count cannot be sustained. This count relied upon a breach of the contract, and set out the instructions of the defendant in justification of the plaintiff's alleged failure to carry out his part of the contract. The evidence for the plaintiff was ample that he fully performed the contract by him to be performed, and to support his contention that he was prevented from going on with it without In these circumstances legal justification. it was proper for the plaintiff to introduce evidence of sales within the territory, made within a reasonable time before and after the execution of the agreement, to enable the jury to estimate the value of the contract to the plaintiff, and to determine with rational probability the reasonableness of the plaintiff's contention that with proper support from the defendant during the year from January 30, 1920, until January 30, 1921, he could have sold goods at least to the value of $200,000. Loughery v. Huxford, 206 Mass. 324, 326, 92 N. E. 328; F. E. Atteaux & Co. v. Mechling Bros. Co., 245 Mass. 483, 502, 140 N. E. 271. We have examined with great care the rulings of the court as to the admissibility of evidence, as also its refusals to give certain requests of the defendant, and are of opinion that they present no reversible errors in law. A statement of the exceptions of the defendant and a seriatim examination of them would unduly extend the opinion without a compensating gain to the analysis of the case already given. Exceptions overruled. BEMIS et al. v. FLETCHER et al. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 2, 1925.) Wills 440-Intention as disclosed by will must prevail, unless inconsistent with law. will, must prevail, unless inconsistent with rules of law. Intention of testatrix, as disclosed in her 2. Wills 98-Gift to beneficiaries named in husband's will held valid. The defendant contends that the agreement. itself was tentative, an essay, a trial; and that it had a right to terminate the contract when the experiment of three months showed a loss, as well as when it appeared that the plaintiff had not sold in any month of the three months goods in the amount of $8,000. This interpretation of the terms of the agreement above quoted is technical, and plainly does not express what was understood by the parties when they said that the "practical workings of the agreement cannot be definitely estimated and that it will be tentative for a period of one year." Clearly it was intended that the agreement should have a fair trial, and that the plaintiff Testatrix gave residue of property to her husband, and if he predeceased her to persons who should be appointed trustees under her husband's will, to be disposed of to same beneficiaries as should be provided in trust established by husband's will in residue of his estate. Held, that testatrix referred to husband's will in existence when her will was made, and not some future will, and the trust was valid. For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes 3. Wills 98-Testator may Incorporate existing paper into his will. Testator may incorporate paper already executed into his will, if described with such particularity as to identify it. 4. Wills 477-Testatrix's will held to create independent trust fund, though administered by trustees of husband's estate. Testatrix provided that residue of her estate was to be disposed of to same persons, in same manner, and according to same terms as shall be provided for trust established by husband's will relating to residue of his estate. Held, that she thereby created independent referential trust in favor of all beneficiaries of husband in proportions fixed by husband's will. CARROLL, J. Ida F. Estabrook by the third clause of her will, dated December 28, 1910, gave all the rest and residue of her property to her husband, Arthur F. Estabrook, "and if he be not living at my decease," the residue was given "to those persons who shall be appointed trustees under my said husband's will, to whom by his will my husband shall give the residue of his estate in trust” and to their successors, to be administered with the same rights and powers, and to be disposed of to the same persons or corporations in the same manner as "shall be provided for the trust established" by her husband's will relating to the residue of his estate. By the fourth clause she nominated her husband as executor and trustee, and if he were not living at her death she 5. Executors and administrators 288-Executors held authorized to distribute fund without first transferring it to themselves as trus-nominated, by name, as her executors and tees. Where testatrix's will provided that residue was to be disposed in same manner and to same persons as was provided for trust established by her husband's will, her executors could distribute fund to proper persons without first transferring it to themselves as trustees. trustees the three persons named as executors and trustees under her husband's will. The fifth clause of her will gave authority to the trustees to sell the trust property and to invest the proceeds in real or personal estate. Mrs. Estabrook died November 24, Case Reserved from Supreme Judicial 1922, at the age of 72 years. Her will was Court, Suffolk County. duly allowed by the probate court January 12, 1923. The petitioners are now the executors and trustees under this will. The testatrix's husband, Arthur F. Estabrook, died July 27, 1919, at the age of 72 years, leaving a will dated December 26, 1905, and two codicils dated December 23, 1909, and September 2, 1910, respectively. This will and the codicils were allowed in the probate court September 4, 1919. The petitioners were duly appointed and are now acting as executors and trustees thereunder. On December 26, 1905, the same date that Arthur F. Estabrook made his will, the testatrix made a will which was revoked by her will dated December 28, 1910. In her will of December 26, 1905, she gave the residue of her estate to her husband; if he were not living at her decease, “to those trustees appointed under my husband's will to whom by H. M. Williams and D. T. Gallup, both of said will he may have given the residue of Boston, for American Unitarian Ass'n. H. W. Brown and E. G. Fischer, both of Boston, for Hampton Normal & Agricultural Inst. and Boston Young Men's Christian Union. his estate in trust" and to their sucessors, “to be administered according to the terms of the trust established by the will of my said husband relating to the residue of his estate." By the eighth clause of the will of Arthur J. T. Pugh, of Boston, for Franklin Square F. Estabrook of December 26, 1905, the resHouse Corporation. idue of his estate was left to trustees for C. M. Rogerson, of Boston, for Frank B. the benefit of his wife, she to receive the inBemis and others. E. A. Whitman, C. Crocker, and A. M. Chandler, all of Boston, for Boston Lying-In Hospital. come during her life, and upon her death the principal to be paid over to 48 charities in various amounts. By the codicils to his will the only changes made related to the persons who were named as executors and trustees. When the wills and codicils were executed Mr. and Mrs. Estabrook were married and living in a common home. The petitioners C. M. Davenport, of Boston, for Boston ask that it be determined whether the residuDispensary. F. H. Dewey and G. H. Mirick, both of Worcester, for trustees of Clark University. N. U. Walker, of Boston, for Free Hospital for Women. ary clause of Mrs. Estabrook's will of De (146 N.E.) cember 28, 1910, constitutes a valid gift for to any will her husband might execute in the benefit of the corporations named in the will of her husband. The heirs at law contend that the residue of her estate belongs to them. [1, 2] The intention of Mrs. Estabrook, as disclosed in her will in view of all the circumstances, must prevail unless inconsistent with the rules of law. McCurdy v. McCallum, 186 Mass. 464, 469, 72 N. E. 75; Jewett v. Jewett, 200 Mass. 310, 317, 86 N. E. 308; Woman's Seaman's Friend Society v. Boston Young Women's Christian Assoc., 240 Mass. 521, 531, 134 N. E. 601; Davis v. Clapp, 242 Mass. 139, 136 N. E. 185. Mrs. Estabrook intended that the residue of her estate should go to the charities mentioned in the eighth clause of her husband's will. When her will of 1910 was made, her husband's will with the codicils had been executed. She appointed as her executors and trustees, in the fourth clause of her will, Frank B. Bemis, Stedman Buttrick and Frederic R. Galloupe, "who are named as executors and trustees under my said husband's will." In this will, as well as in the will of 1905, the testatrix provided that the residue of her estate should be distributed as the residue of her husband's estate was to be distributed on her death. Her will and the will of her husband were executed on the same date, in the year 1905. The same persons witnessed both instruments. And the executors and trustees appointed by him were selected by her to serve as the trustees and executors under her will. Her reference in the third clause of the will "to those persons who shall be appointed trustees" is nothing more than a recognition of the fact that the trustees named in the fourth clause were to be appointed in the future. Her reference to the trust to be disposed of "as shall be provided," and the other language looking to the future, are not sufficient to show that she had in mind some future will to be made by him. She had in mind this will, then in existence, to be effective on the death of the testator. In our opinion, Mrs. Estabrook intended to incorporate into her will the eighth clause of her husband's will, as a part of her will, and a valid trust was therefore established to be administered as indicated in his will. [3] The will of Mr. Estabrook was in existence in 1910 when the testatrix's will was executed. His will was sufficiently identified, and it could be incorporated into her will. "A testator may refer expressly to a paper already executed, and describe it with such particularity as to incorporate it virtually into the will." Newton v. Seaman's Friend Society, 130 Mass. 91, 93, 39 Am. Rep. 433; Thayer v. Wellington, 9 Allen, 283, 85 Am. Dec. 753; Taft v. Stearns, 234 Mass. 273, 125 N. E. 570. She had in mind and referred to an existing will of her husband, a will of which she had knowledge. She did not refer the future, her reference was to "my said husband's will" and to "the trust established by my said husband's will relating to the residue of his estate." This will of her husband's was admitted to probate in September, 1919. Mrs. Estabrook did not die until 1922; she made no changes in her will after his death. We need not, therefore, consider what construction should be given to her will, if her husband had made another will after 1910. This event did not happen and the intention and purpose of Mrs. Estabrook should be made effectual to carry out the end she had in view. See Loring v. Blake, 98 Mass. 253, 260; Gray v. Whittemore, 192 Mass. 367, 378, 379, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246. Curley v. Lynch, 206 Mass. 289, 92 N. E. 429, relied on by the next of kin, is distinguishable. In that case the testator gave to his wife a power of appointment. She died January 23, 1909, three days before her husband. Her will was made January 15, 1909, her husband's will was made January 19, 1909. When he made his will he had already read his wife's will and expressed satisfaction with it. It was held that the provision in the husband's will for the wife was of no effect, because of her decease in his lifetime; that the power of appointment fell with the life estate. It was also held that he might have incorporated into his own will the provisions made in his wife's will, if he had so desired, but he failed to do this. He made no reference in terms to a particular will, and did not seek to incorporate into his will the specific provisions contained in her will. In the case at bar there was no power of appointment given by the testatrix to her husband. If he died before her, the property was to go as designated in his will, then in existence, which by reference was incorporated into her will. Atwood v. Rhode Island Hospital Trust Co. (C. C. A.) 275 F. 513, is not in conflict with what is here decided. Mrs. Estabrook had no power to change the provisions in her husband's will; she referred to the list of charities mentioned therein, which remained unchanged after the execution of the will; and the will had already been admitted to probate when she died. See Damon v. Bibber, 135 Mass. 458; Matter of Piffard, 111 N. Y. 410, 18 N. E. 718, 2 L. R. A. 193. [4] We do not agree with the contention of the Massachusetts Homeopathic Hospital that it is to receive the entire residue of Mrs. Estabrook's estate disposed of by the third clause of her will. In that clause the residue was "to be disposed of to the same persons or corporations, in the same manner, and according to the same terms, as shall be provided for the trust established by my said husband's will relating to the residue of his estate." She did not mean to add her gift to |