(146 N.E.)

they had no knowledge until after the re- 3. Taxation 713-Certificate issued by expairs had been made that the automobile had been brought to Smith's place of business. The four notes above referred to have not been paid. The plaintiffs demanded the re-tion of office, was required by G. L. c. 60, § turn of the automobile, without offering to pay for the repairs. The suit is in equity, for a return of the automobile, it being agreed that the plaintiff can obtain relief in equity "if otherwise entitled to prevail." The bill was taken as confessed against Langone.

2. Municipal corporations 747(1)—Tax col- the petitioner's title acquired thereunder. On lector "public officer," not agent.

December 17, 1917, O'Brien, by deed, con

Collectors of taxes of towns are "public veyed the premises to one Martin, who mort

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1921, conveyed the property to the respond- ↑ tificate in July, 1921, he no longer held that ents Weinstein and wife as tenants by the office, but had been succeeded by Jeffrey, entirety. On March 7, 1921, at the annual who was elected at the annual meeting of the town meeting one Jeffrey was duly elected town held in March previously. When the collector of taxes for the town and qualified money was paid by Martin and received by as such on the same day. On July 11 fol- Waterhouse and a certificate was issued by lowing, a certificate was made and delivered the latter, he was not the collector of taxes by Waterhouse as collector of taxes to Mar- and had no authority whatever as collector tin; it was duly recorded in the Registry of to accept the payment or to make the certifiDeeds on July 20, 1921, and recites that the cate. The only person empowered so to act latter has paid to Waterhouse certain was the collector of taxes holding that office amounts therein stated to redeem the prop in July, 1921. If Waterhouse had not been reerty from the tax såle; also that Martin is moved from office and his tax list had not a person having an interest in the property, been transferred to his successor, and he was is the owner thereof, and as such desires to required to complete the collection of taxes redeem the same from the sale in pursuance committed to him notwithstanding the expiraof G. L. c. 60, § 62. tion of his term of office (G. L. c. 60, § 15), still his action in receiving the money paid for the purpose of redeeming from the tax sale was not in fact a collection of taxes due the town. His duty, so far as it related to this particular tax, ended when he sold the property to the petitioner in 1919; he then completed the collection of the tax which it was his duty to pay over to the town treasurer in G. L. c. 60. accordance with his warrant. § 2. In receiving the amount paid, he did not collect a tax, but received money from the owner who sought to redeem. The money received for the redemption of the property from the tax sale must be paid to the person who at that time holds the office of collector of taxes, and he is the only person under the statute authorized to issue a certificate of payment.

Section 62 provides, among other things, that any person having an interest in land taken or sold for nonpayment of taxes may within two years redeem the same by paying or tendering to the collector the amount of the tax, all intervening taxes and certain other charges, fees, and interest therein specified, or by paying to the purchaser or his legal representatives or assigns the original sum and intervening taxes paid by him and interest. "He may redeem the land by paying to the collector the sum which he would be required to pay to the purchaser, with one dollar additional." Section 63 of the same chapter further provides, in part, that the collector shall receive any money paid to him and give to the person paying it a certificate specifying the amount paid, and shall on demand pay over all money so paid to the person entitled thereto except that he shall retain one dollar for the use of the town and shall account to it therefor. The sole question presented is whether the certificate given by Waterhouse as "collector of taxes" to Martin, the predecessor in title of the present owners, was a valid redemption from the tax sale which vested title in Martin and extinguished the tax title conveyed to the petitioner.

[1-4] The method of redemption, by payment to the collector instead of to the petitioner, is wholly statutory. The statute provides that the payment shall be made to the collector. He alone is required to give the certificate of payment, and is obliged on demand to pay the money so received to the person entitled thereto as determined by him. All these acts are to be performed by the collector as such. A collector of taxes in the performance of his duties is a public officer and not an agent of the municipality. Graton v. Cambridge, 250 Mass., 145 N. E. 453. Although Waterhouse was collector of taxes for the town of Hull in 1919, when the premises were sold by him for the tax assessed in 1917, yet at the time he issued the cer

|

There is nothing in sections 15, 96, and 97, applicable to the question here to be determined. The owner of property ought to be able to know with certainty to whom he should apply for a certificate of redemption: the tax collector is such a person; he is a public officer readily to be found, and to whom application can be made without the uncertainty or difficulty which might exist if such application had to be made to one who no longer held the office. The only person authorized to receive the money and issue the certificate in the case at bar was the tax collector who was elected in 1921. As Waterhouse had no authority so to act, the question whether for any purpose he was collector of taxes de facto or de jure in making the certificate is irrelevant and immaterial. He acted without lawful authority. The certificate is evidence of title to the real estate and is relied on by the respondents as extinguishing the petitioner's title. To have that effect, the statute must be strictly complied with in all essential particulars. As the certificate was not issued by the person who at the time of such issue held the office of collector of taxes, it was without legal effect. Order dismissing petition reversed.

(146 N.E.)

admission of testimony of witness as to valuaJAMES MILLAR CO. v. COMMONWEALTH. tion of water front properties.

(Supreme Judicial Court of Massachusetts.

Plymouth. Feb. 27, 1925.)

1. States 191(1)-Special statute held to authorize timely suit against commonwealth for land taken by eminent domain.

Sp. St. 1919, c. 187, §§ 1-10, directing Pilgrim Tercentenary Commission to acquire land in name and for benefit of commonwealth, by implication authorized action against commonwealth, where land was taken by eminent domain, if petition was timely brought and aggregate value of land and property taken did not exceed appropriation.

2. Eminent domain 167(1)-Act providing that land shall not be taken except under general laws held inapplicable to land taken before act was effective.

Gen. Laws, c. 79, § 45, relating to eminent domain, and providing that no property shall be taken for public use, except under this chapter, has no application to taking of land by special act before general act became effective.

3. Eminent domain 148-Interest on amount found due computed rightly at 6 per cent. per annum.

In proceeding to assess damages for taking of coal wharf by Pilgrim Tercentenary Commission under Sp. St. 1919, c. 187, rate of interest on amount found by jury was computed rightly at rate of 6 per cent. per annum.

4. Evidence 142(4)—Evidence of sale price of property 25 miles from land taken was erroneously admitted, there being no evidence of similarity of value.

In proceeding to assess value of wharf taken by commonwealth, testimony as to sale of real estate located 25 miles distant was im

properly admitted; no evidence being offered as to similarity of value of properties, and only similarity being that property had coal wharf with water privileges.

5. Evidence 113(10)-Evidence as to cost of reproducing filled land was within court's discretion to admit or exclude.

In proceeding to assess damages for taking of coal wharf on harbor by commonwealth, evidence as to cost of reproducing filled land was within court's discretion to admit or exclude.

Exceptions from Superior Court, Plymouth County; F. T. Broadhurst, Judge.

Petition by the James Millar Company against the Commonwealth of Massachusetts for assessment of damages for taking of coal wharf, under Sp. St. 1919, c. 187. Verdict for petitioner, and the Commonwealth excepts. Exceptions sustained.

E. F. McClennen, of Boston (A. E. Whittemore, of Boston, on the brief), for petitioner.

C. F. Lovejoy, Asst. Atty. Gen. (A. P. Richards, Asst. Atty. Gen., on the brief), for the Commonwealth.

PIERCE, J. This is a petition for the assessment of damages caused by the taking of a coal wharf property on Plymouth Harbor, for the commonwealth, by the Pilgrim Tercentenary Commission, on October 27. 1920, under Sp. St. 1919, c. 187. A jury found for the petitioner, and the case is before this court on the suggestion of the defendant that the court was without jurisdiction, and upon its exceptions taken to the admission of testimony.

[1] The contention that the court had no jurisdiction to entertain suit against the commonwealth rests upon the undisputable rule of law that the commonwealth cannot be impleaded in its own court without its consent. Lemon v. Commonwealth, 236 Mass. 599, 600, 129 N. E. 382.

*

Sp. St. 1919, c. 187, § 1, reads:
"The Pilgrim Tercentenary

*

Commission

* is hereby authorized and directed to acquire in fee or otherwise, in the name and for the benefit of the commonwealth, by purchase, gift, grant, devise or eminent domain 6. Evidence 113(19)-Copies of corpora- * * such lands, wharves and buildings tion's excise tax return rightly excluded. as were recommended to be acquired In proceeding to assess damages for taking for said purpose by the report of the said of coal wharf on Plymouth harbor for common- commission, presented to the general court in wealth by Pilgrim Tercentenary Commission, the year nineteen hundred and seventeen, and under Sp. St. 1919, c. 187, court, in view of St. 1923, c. 402, § 3, rightly excluded copies of corporation's excise tax returns for year 1920, verified by officer of petitioner.

as,

* ** such lands and buildings in the opinion of the said commission, should be taken for the purpose aforesaid: Provided, that the commission shall not acquire by purchase or right of eminent domain under this act any land or other property to an amount exceeding in value, in the aggregate, the total amount appropriated by the General Court or In proceeding for damages for taking of contributed by individuals, counties, other mucoal wharf on Plymouth harbor for common- nicipalities or corporations for that purwealth, there was no abuse of discretion in pose.

7. Evidence 524-Evidence of expert witness as to value of water front not improperly admitted.

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"Sec. 5. The commission shall, within sixty days after voting to take any lands, rights or easements, as aforesaid, file and cause to be recorded in the registry of deeds for the county of Plymouth, a description thereof sufficiently specific for identification, with a statement of the purpose for which the same were taken, signed by a majority at least of the commission, the recording to operate as a taking of the real estate and rights and easements therein described.

"Sec. 6. The commission shall pay all damages to property sustained by any person, firm or corporation, by the taking of any land, buildings, rights or easements, or by any other thing done by the commission under this act. Any person, firm or corporation sustaining damages as aforesaid, and failing to agree with the commission as to the amount thereof, may have the same assessed and determined in the manner provided by law in the case of land taken for the laying out of highways, on application at any time within two years after the taking of such land or other property, or doing of any injury, under authority of this act, but no such application shall be made after the expiration of the said two years.

|erty were purchased or taken by the commission in value beyond the amount appropriated by the General Court.

[2, 3] Having regard to the provision that title is to be taken in the name of the commonwealth, to the appropriations for the purchase and taking of such property, and to the provision for a petition for damages (section 6), we think the case at bar is distinguishable from the case of Bent v. Emery, 173 Mass. 495, 53 N. E. 910, upon which the defendant relies. We think G. L. c. 79, § 45, is not applicable where, as here, the land was taken before that statute went into effect (St. 1918, c. 257, § 187; St. 1920, c. 2), and that the rate of interest on the amount found by the jury was computed rightly at the rate of 6 per cent. per annum.

[4] The testimony of one Welch, that he sold his real estate in Scituate in 1923 for $100,000, was improperly admitted, and the exception of the defendant saved thereto must be sustained. The land sold was located in Scituate, 25 miles distant from Plymouth. No evidence was offered of similarity in the valuation of real estate in the two towns. The property sold was nearly twice the size of the property taken. It was similar in the fact that it had a coal wharf with water privileges. It was unlike in the fact that the land had a store on the property, which was used for the hardware business; that it had a building on it used as a post office; and that on it there were five or six lumber sheds used in the conduct of

"Sec. 10. The commission may expend, subject to the approval of the Governor and Council, for any of the purposes named in this act, the sum of one hundred and fifty thousand dollars, being the amount appropriated in item five hundred and seven a of the general appropriation act for the current year, and may expend in addition thereto the sum of one hundred thousand dollars during the year beginning December first, nineteen hundred and nineteen. Any balance of said sums unexpended may be expended in the succeeding years, but it is the purpose and understanding of the general court that the sum of two hundred and fifty thou-a lumber business. Presbrey v. Old Colony sand dollars is the sum total of all appropriations which the commonwealth shall make for the purposes of this act."

& Newport Railway, 103 Mass. 1; Chandler v. Jamaica Pond Aqueduct Corp., 122 Mass. 305, 307; Fourth National Bank v. Commonwealth, 212 Mass. 66, 98 N. E. 686; Ham v. Salem, 100 Mass. 350; Benton v. Brookline, 151 Mass. 250, 23 N. E. 846; Klous v. Commonwealth, 188 Mass. 149, 74 N. E. 330. There would seem to have been no insuperable difficulty in ascertaining the fair market value of the land taken in the year it was taken, in a town of the size of Plymouth. without resort to evidence of sales of land 25 miles away and at a time two to three years after the taking. So far as the admission of the evidence was a matter of discretion we think it was improperly exercised.

We think the provisions in section 1, supra, directing the commission to acquire a fee in land taken in the name and for the benefit of the commonwealth, read in conrection with the limitation put upon that duty in sections 1 and 10, supra, by implication authorized an action against the commonwealth, by petition and jury trial, in any case where land was taken by eminent domain, if the petition was brought within two years after the taking and the aggregate amount in value of land and property taken did not exceed the unexpended balance of the amount appropriated by the General Court [5-8] The evidence as to the cost of refor the payment of lands and property to be producing the filled land was within the disacquired in the name of the commonwealth. cretion of the court to admit or exclude, and United States v. Great Falls Manuf. Co., 112 we cannot say in the circumstances of this U. S. 645, 656, 5 S. Ct. 306, 28 L. Ed. 846; case that the discretion was improperly exUnited States v. Lynah, 188 U. S. 445, 464, ercised. Klous v. Commonwealth, supra: 23 S. Ct. 349, 47 L. Ed. 539; United States Lakeside Manuf. Co. v. Worcester, 186 Mass. v. Cress, 243 U. S. 316, 329, 37 S. Ct. 380, 52, 560, 72 N. E. 81. The court rightly ex61 L. Ed. 746; United States v. North Amer-cluded copies of the corporation excise tax ican Co., 253 U. S. 330, 333, 40 S. Ct. 518, 64 L. Ed. 935; Campbell v. United States, 45 S. Ct. 115, 69 L. Ed. There is nothing

returns for the year 1920, signed and sworn to by an officer of the petitioner (St. 1923, c. 402, § 3; Brackett v. Commonwealth. 223

(146 N.E.)

1918B, 863), and the secrecy of the return, "First-To Austin E. Russell, of said Medshould not be destroyed or minimized in- ford. Massachusetts, who for long years has directly through the cross-examination of the been our constant and devoted friend, in recogofficer of the corporation who filed the re- nition of such faithful devotion, I give, devise port. We cannot say that there was an abuse and bequeath my estate at No. 20 Brooks Park, in said Medford, Massachusetts, together with of discretion in the admission of the testi- all goods, chattels and personal property about mony of Charles E. Fitz, who was allowed to my home, to hold or dispose of as he desires qualify as an expert in the value of water or deems best. Also the sum of $2,000, now front properties, in view of the apparent in the Medford Savings Bank. It is also my difficulties attending proof of the value of will and wish, that at the death of said Austin the property in question. Cochrane v. Com- E. Russell, or at any time he may so arrange, the above mentioned property may be given monwealth, 175 Mass. 299, 302, 56 N. E. to the 'Society for the Prevention of Cruelty 610, 78 Am. St. Rep. 491. We think the to Animals' in Boston." court could properly have admitted the evidence offered to prove that the president of the petitioner's corporation stated in 1917 "that the property was only a $30,000 in vestment," "investment" being found by the jury to mean as used "value"; but we do not find legal error in this regard. Exceptions sustained.

TEMPLE v. RUSSELL et al. (Supreme Judicial Court of Massachusetts. Middlesex. Feb. 26, 1925.)

Wills 675-Gift to legatee held subject to precatory trust to charity; "will and wish."

Testatrix's will bequeathing legatee real estate to hold or dispose of as he desired or deemed best, it being also her will and wish that at legatee's death property be given to named charity. held gift to legatee subject to precatory trust; words "it is also my will" being words of command, which were not cut down by addition of words "and wish."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Will.]

Appeal from Probate Court, Middlesex County; L. E. Chamberlain, Judge.

In the matter of the estate of Emeline M. Evans, deceased. Petition by Frederick H. Temple, administrator, against Henry W. Russell and others, for instruction as to disposition of proceeds of sale of land and money. From the decree rendered, defendant named appeals. Affirmed.

H. R. Brentlinger, of Boston, for petitioner. A. E. Pillsbury, of Boston, for respondent Massachusetts Soc. for Prevention of Cruelty to Animals.

G. R. Warfield, of Gardner, for other respondents.

RUGG, C. J. This is a petition by the administrator with the will annexed of the estate of Emeline M. Evans, for instructions as to the disposition of the proceeds of sale of certain real estate and of a savings bank deposit which his testatrix, without professional assistance, in a holographic will devised and bequeathed as follows:

The testatrix died February 17, 1923, and the will was admitted to probate on April 11, 1923.

Austin E. Russell, the devisee and legatee named in the will, was unmarried, aged and feeble; he owned property amounting to about $9,000 and had a weekly pension of $15; he had long lived in the Medford house at No. 20 Brooks Park as one of the household of the testatrix. For many years he had been her constant and devoted friend. At the death of the testatrix he was unable by reason of his health to act as executor or to remain in the Medford house. He went

to live with a sister and thence to a private hospital, where he died June 28, 1923, never having used or needed for his comfortable maintenance any part of the property mentioned in the first item of Mrs. Evans' will, or its income, except the proceeds of the furniture of the house, in which all other parties had waived any interest in his favor. The house was sold for $5,000 with the assent of all parties in interest, and under agreement that all rights should remain unaffected and as though the estate had not been converted into personalty. At the date of Mrs. Evans' will, in February, 1920, the amount of her deposit in the Medford Savings Bank was $1,671.56, with one semi-annual interest dividend accrued in November, 1919, but not' credited on the book. By subsequent deposits and accrual of interest, less withdrawals of $200 on November 19, 1920 and $50 on September 29, 1922, the amount of deposit at the time of her death was $3,416.82. All these facts preceding her death were known

to Mrs. Evans.

Henry W. Russell, an heir at law of Austin E. Russell, appeals from the decree of the probate court for the county of Middlesex, whereby the petitioner was instructed:

"That the estate of Austin E. Russell has no interest in the property No. 20 Brooks Park, Medford, nor in the proceeds of the sale thereof nor in the account in the Medford Savings Bank; that said society [Society for the Preentitled to the proceeds realized from said sale vention of Cruelty to Animals in Boston] is of said property No. 20 Brooks Park, with accrued interest; also deposit in said Bank to extent of the bequest of $2,000. The bequest

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