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(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 recog

nition of such faithful devotion, I give, devise officer of the corporation who filed the report. 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 cualify 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 'evi. dence offered to prove that the president

The testatrix died February 17, 1923, and of the petitioner's corporation stated in 1917 the will was admitted to probate on April 11, "that the property was only a $30,000 in 1923. vestment," "investment” being found by the Austin E. Russell, the devisee and legatee jury to mean as used "value"; but we do named in the will, was unmarried, aged and not find legal error in this regard.

feeble; he owned property amounting to Exceptions sustained.

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. TEMPLE V. RUSSELL et al.

At the death of the testatrix he was unable (Supreme Judicial Court of Massachusetts. by reason of his health to act as executor Middlesex. Feb. 26, 1925.)

or to remain the Medford house. He went Wills ww675–Gift to legatee held subject to to live with a sister and thence to a private precatory trust to charity; "will and wish." hospital, where he died June 28, 1923, never Testatrix's will bequeathing legatee real es

having used or needed for his comfortable tate to hold or dispose of as he desired or maintenance any part of the property mendeemed best, it being also her will and wish that tioned in the first item of Mrs. Evans' will, at legatee's death property be given to named or its income, except the proceeds of the furcharity. held gift to legatee subject to precatory niture of the house, in which all other partrust; words “it is also my will” being words ties had waived any interest in his favor. of command, which were not cut down by ad- The house was sold for $5,000 with the assent dition of words “and wish."

of all parties in interest, and under agree[Ed. Note. For other definitions, see Words ment that all rights should remain unaffected and Phrases, First and Second Series, Will.] } and as though the estate had not been con

verted into personalty. At the date of Mrs. Appeal from Probate Court, Middlesex Evans' will, in February, 1920, the amount of County; L. E. Chamberlain, Judge.

her deposit in the Medford Savings Bank In the matter of the estate of Emeline M. was $1,671.56, with one semi-annual interest Evans, deceased. Petition by Frederick H. dividend accrued in November, 1919, but not Temple, administrator, against Henry W. credited on the book. ` By subsequent deRussell and others, for instruction as to dis- posits and accrual of interest, less withdrawposition of proceeds of sale of land and mon- | als of $200 on November 19, 1920 and $50 on ey. From the decree rendered, defendant | September 29, 1922, the amount of deposit named appeals. Affirmed.

at the time of her death was $3,416.82. All
H. R. Brentlinger, of Boston, for petitioner. these facts preceding her death were known
A. E. Pillsbury, of Boston, for respondent to Mrs. Evans.
Massachusetts Soc. for Prevention of Cruelty

Henry W. Russell, an heir at law of Austin to Animals.

E. Russell, appeals from the decree of the G. R. Warfield, of Gardner, for other re- probate court for the county of Middlesex, spondents.

whereby the petitioner was instructed:

“That the estate of Austin E. Russell has no RUGG, C. J. This is a petition by the ad- interest in the property No. 20 Brooks Park, ministrator with the will annexed of the es- Medford, nor in the proceeds of the sale theretate of Emeline M. Evans, for instructions of nor in the account in the Medford Savings as to the disposition of the proceeds of sale Bank; that said society {Society for the Pre

vention of Cruelty to Animals in Boston] is of certain real estate and of a savings bank entitled to the proceeds realized from said salo deposit which his testatrix, without profes- of said property No. 20 Brooks Park, with acsional assistance, in a holographic will de- crued interest; also deposit in said Bank to vised and bequeathed as follows:

extent of the bequest of $2,000. The bequest For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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of $2,000 is specific and is to be treated as the tator must necessarily have intended an interreal estate and passes as indicated to the said est to be given which is not bequeathed by er. society; that said bequest of $2,000 carries press and formal words, the court must supwith it accrued interest from testatrix's death ply the defect by implication, and so mould the February 17, 1923, and that any sum of mon-language of the testator as to carry into effect, ey on deposit in said bank less accrued interest as far as possible, the intention which it is of on said $2,000 is due and payable under pro- opinion that he has on the whole will sufficientvisions of said will to Harriet F. Wemyss and ly declared." said Temple each one-half."

These words were quoted and given a None of the respondents other than Henry strong application in Young Women's ChrisW. Russell appealed from the decree of the tian Home v. French, 187 U. S. 401, 412, 23 probate court; it consequently stands as to S. Ct. 184, 47 L. Ed. 233. To the same effect them. The appellant and the respondent among other of our decisions are Polsey v. Massachusetts Society for the Prevention of Newton, 199 Mass. 450, 85 N. E. 574, 15 Ann. Cruelty to Animals concede that the bequest Cas. 139; Sanger v. Bourke, 209 Mass. 481, of $2,000 on deposit in the Medford Savings 486, 95 N. E. 894; Tibbets v. Tompkinson, Bank is specific; that it carries with it any | 217 Mass. 244, 104 N. E. 562; Eustace s. accretions from the death of the testatrix Dickey, 240 Mass. 55, 73, 132 N. E. 852. until paid; and that the difference between A reading of the will makes it plain that said $2,000 plus accretions and the total sum the testatrix had two dominant purposes of money on deposit in the Medford Savings in writing her first clause, one to help Mr. Bank in the name of Mrs. Evans is due and Russell, and the other to help the Society for payable to Harriet F. Wemyss and Frederick the Prevention of Cruelty to Animals. Both H. Temple.

of these purposes were to be accomplished The question for decision is whether Aus- with the same property. They both are tin E. Russell under the will took an abso- grouped under one clause. There are no lute and unqualified estate of inheritance in technical words of inheritance in expressing the property devised, which vested in his her benefaction to Mr. Russell. Standing heirs upon his death intestate. The perti- alone, those words would be adequate to pass nent principles touching the interpretation of an absolute ownership. If they are given wills have been stated fully in opinions of that meaning, there is no room for the operathis court and need not be rephrased. It was tion of the last sentence of that clause resaid in Ware v. Minot, 202 Mass. 512, 516, 88 specting the Society. The collocation and N. E. 1091:

form of the three sentences composing that “The rule for the construction of wills fol- clause indicate a design on the part of the lowed by courts in recent times is to ascer

writer that both purposes should be given tain the intent of the testator from the whole effect. After providing for Mr. Russell, she instrument, attributing due weight to all its begins the next sentence by saying: “It is language, and then give effect to that intent also my will." These words imply the unless prevented by some positive rule of law, thought that the two provisions, so far as rather than to try to make the interpretation concerns testamentary purpose, stand on an of particular words or phrases in one instru- equally firm foundation. The clear intent to ment square with that before given to somewhat similar words used by someone else un

be gathered from all the words used in the der other surroundings to accomplish a more clause is that both Mr. Russell and the Soor less different end. McCurdy v. McCallum, ciety should share in her benefaction.

To 186 Mass. 464. A few combinations of words construe the first sentence of the clause as have become so fixed in their meaning by long creating an estate in fee simple would nulliand unvarying use as to be rules of property. fy the last sentence. The will would stand But ordinary canons for the interpretation of as if that sentence had never been written. wills, having been established only as aids for Such a construction would violate to that determining testamentary intent, are to be followed only so far as they accomplish that

extent the general principle of interpretation

purpose, and not when the result would be to de- that all testamentary words are to be given feat it. Crapo v. Price, 190 Mass, 317, 319; effect so far as compatible with fixed rules Jewett v. Jewett, 200 Mass. 310, 317. It is of law. It is apparent, from a reading of permissible also to look at all the material cir- | the clause as a whole, that the testatrix cumstances in the light of which the will was would have been shocked to have been told, executed in order to comprehend the sense and purpose of the language employed."

as she laid down her pen after writing that

clause, that she had given everything to Mr. It also was said by Chief Justice Gray in Russell absolutely if he survived her, and Metcalf v. First Parish in Framingham, 128 had given nothing to the Society. There is Mass. 370, 374:

no rule of law which requires doing violence “The decision of this question doubtless de- closed to the mind, unskilled in legal niceties

to the fixed resolution of the testatrix as dispends upon the intention of the testator, as manifested by the words that he has used, 'and of technical construction, by the words of the an omission to express his intention cannot be will. That plain testamentary purpose can supplied by conjecture. But if a reading of the be given effect, in the opinion of a majority whole will produces a conviction that the tes of the court, by holding that the gift to Mr.

(146 N.E.) Russell, whatever its nature, was subject to

Petition to register and confirm title to a precatory trust in favor of the Society. certain land by David Levenson against The words "It is also my will” are more Elena V. Ciampa and others. Petitioner than a mere entreaty or expression of desire. was denied right to build arch over passageThey are words of command. They express way claimed by him, and he excepts. Excepan imperative testamentary design. Hess v. tions overruled. Singler, 114 Mass. 56, 59. They are not cut down, in view of the entire first clause,

Petition to register and confirm title to by the addition of the words “and wish." certain land, in which petitioner claimed This result is not in contravention to the right to arch over portion of passageway recent tendency to narrow the application of owned by him at convenient height. Comthe principle as to precatory trusts and is in mon grantor divided part of lot into eight harmony with our decisions, most of which lots, and by deeds in 1844 lots were conare reviewed in Poor v. Bradbury, 196 Mass. veyed to different grantees. Deeds bound207, 91 N. E. 882; Dexter v. Young, 234 ed lots conveyed in part on passageway 4 Mass. 588, 591, 125 N. E, 862.

feet wide, which extended through original The case at bar is distinguishable from lot. Petitioner was owner of lots on opposite cases like Bassett v. Nickerson, 184 Mass. sides of passageway, and was therefore own. 169, 68 N. E. 25, Lovering v. Balch, 210 Mass. er of entire fee of that part of passageway 105, 96 N. E. 142, and Knibbs v. Knibbs, 236 on which his lots abutted. Mass. 182, 127 N. E. 885.

Respondents' witness testified that he was Costs as between solicitor and client may 37 years old and was acquainted with locabe awarded out of the estate in the discre- tion; that there were some buildings used tion of the probate court.

as dwellings with rear walls up to side of Decree affirmed.

passageway, having rear windows overlooking it; that some of the buildings appeared to be about 40 or 50 years old; and that as long as he could remember the passageway

had been used by abutting owners. EviLEVENSON V. CIAMPA et al.

dence did not show whether there were

kuildings on the lots in 1844. Deeds in chain (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 26, 1925.)

of title at that time did not mention build

ings. 1. Records S9(5)-Land court had jurisdic

A. B. Lourie, of Boston, for petitioner. tion, on petition to register title, to determine extent of easement.

C. M. Goldman, of Boston, for respord

ents. In view of G. L. c. 185, § 1, and chapter 240, 88 11-15, land court had jurisdiction, on petition to register title, to determine extent

WAIT, J. (1) The land court has jurisdicof easement of petitioner in passageway be- tion over the subject-matter of this petitween lots which he claimed the right to arch tion, not only to register the title (G. L. c. over at convenient height.

185, § 1), but also to determine the extent of 2. Records Ow9(9)-Burden of proof' was.on L. c. 240, $8 11-15).

the easement claimed by the petitioner (G. petitioner for registration.

[2] The burden of proof was on the petiIn petition to register and confirm title and tioner. Lipsky v. Heller, 199 Mass. 310, 85 determine extent of easement claimed by petitioner, burden of proof was on petitioner.

N. E, 310; Hughes v. Williams, 229 Mass.

467, 118 N. E. 914, 3. Records fm9(9)-Evidence as to description [3] The testimony objected to was no more of easement and conduct of owners in rela- than a description of the premises and of tion to use thereof held competent.

the conduct of the holders of the easement In petition to register title and determine in the passageway in regard to the use made extent of easement claimed by petitioner in of it. Such testimony has been admitted and passageway. testimony descriptive of premises and conduct of holders of easement in passage- considered in many cases, for the reasons way in regard to use made by it held compe- set out in Salisbury V. Andrews, 19 Pick. tent.

250 (see also 128 Mass. 336), and has not been

confined to testimony of events strictly con4. Records C9 (12)—Decision of land court temporaneous with the creation of the easeon fact question held final.

ment. Atkins v. Bordman, 2 Metc. 457, 37 In so far as question of extent of petition- Am. Dec. 100; Burnham v. Nevins, 144 Mass. er's easement in passageway involved determination of fact, decision of land court there- / 88, 10 N. E. 494, 59 Am. Rep. 61; Crocker

Its on, in proceeding to register title under G. L. v. Cotting, 181 Mass. 146, 63 N. E. 402. C. 185, $ 15, was final.

admission was within the discretion of the

trial judge. Exceptions from Land Court, Suffolk [4] In so far as the question involved County.

the determination of fact, the decision of the

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

land court was final. G. L. C. 185, $ 15. We CROSBY, J. The defendant was tried and cannot say that the evidence as matter of convicted upon an indictment which charged law was insufficient to justify the conclusion him with operating a motor vehicle so that reached. The length and nature of this pass the lives or safety of the public might be ageway from street to street and the size endangered. He was also tried at the same and shape of the lots which it served were time upon two other indictments, predicated significant. They bring the case within the upon the same state of facts, one for man. class exemplified by Crocker v. Cotting, 181 slaughter, and the other for operating a Mass. 146, 63 N, E. 402, and Salisbury v. motor vehicle recklessly, on both of which Andrews, 128 Mass. 336, rather than that he was found not guilty. illustrated by Duncan v. Goldthwait, 216 There was evidence tending to show that Mass. 402, 103 N. E. 901, Burnham v. Nevins, on February 29, 1924, the defendant operat144 Mass. 88, 10 N. E. 494, 59 Am. Rep. 615, ed an automobile truck on the northerly side and Atkins v. Bordman, 2 Metc. 457, 37 Am. of Essex street in Lawrence, at a speed of Dec. 100.

20 miles an hour; that one Elizabeth PoiriExceptions overruled.

er, while crossing from the south side of that street, was struck by the truck and killed; and that her body was thereafter dragged by the truck a distance of 32 feet.

There was also evidence that the defendant COMMONWEALTH v, VARTANIAN. said to a police officer that "he was in a

hurry delivering some fruit or something (Supreme Judicial Court of Massachusetts.

and he took a chance and tried to get by Essex. Feb. 24, 1925.)

her.” This was denied by the defendant. 1. Municipal corporations ww707—Instruction Other evidence was offered by both sides.

on criminal responsibility of motor vehicle The jury took a view of the place where the operator held misleading.

accident occurred. At the close of the evi. Where criminal liability in operation of mo- dence the defendant requested the court to tor vehicle, so that public might be endangered, give the following instructions; was not dependent on negligence or intent, defendant's instruction that fact that accident

"1. The fact that an accident happened and happened and that deceased was killed was not the deceased was killed by the defendant's truck enough to convict, was misleading, as tending is not enough to convict the defendant of opto indicate that defendant could not be con- erating so that the lives and safety of the victed, if he had not been careless, and had no

public might be endangered. The jury must intention to violate statute.

find some improper act of the defendant's which

might endanger the lives and safety of the pub. 2. Municipal corporations w707—Instruction lic. If the defendant was operating his truck

held to describe offense in operating motor properly and the accident happened through no vehicle.

fault of his, then the jury should find for the Instruction that “only fact to be deter- defendant. mined" was whether defendant operated “motor

"2. If the jury find that the accident was vehicle on a way so that

public might caused by the defendant's truck, they should be endangered” adequately described offense find him not guilty if they find no improper within statute.

operation by the defendant caused the accident

and that he was not in any other way operat. 3. Criminal law Om814(5)-Request that same ing the truck so that the lives and safety of

degree of judgment and presence of mind not the public might be endangered." required in sudden emergency as at other “4. You are instructed that the law does not times properly refused.

hold a person who is faced with a sudden emer. Where negligence was not relevant to pros- gency to the same degree of judgment and presecution for operating motor vehicle, so that ence of mind as would otherwise be required public might be endangered, requested instruc-of him under circumstances not indicating sudtion that law did not hold person facing sudden den peril." emergency to same degree of judgment and presence of mind as would otherwise be re [1] The first sentence of request 1 was not quired was rightly denied.

an accurate statement of the law; he was

guilty if he so operated a motor vehicle that Exceptions from Superior Court, Essex either the lives or safety of the public County; Jos. Walsh, Judge.

might be endangered. The further assertion John S. Vartanian was convicted of oper

in the next sentence, that the jury must find ating a motor vehicle so that lives or safety might endanger the lives and safety of the

some improper act of the defendant which of public might be endangered, and he excepts. Exceptions overruled.

public, could not properly have been giren.

The defendant was charged with a specific W. G. Clark, Dist. Atty., of Dorchester, and and definite offense. If he was found so te H. C. Thompson, Asst. Dist. Atty., of Haver- have operated the truck that the lives or hill, for the Commonwealth.

safety of the public might be endangered, he J. J. Sullivan, for defendant.

was guilty, even if the jury found that he cm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indeses


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(146 N.E.)
committed no improper act other than to op- | compensation for loss of use of arm by
erate a motor vehicle as charged. The op- Albert Cherbury, deceased, opposed by A.
eration of a motor vehicle in violation of B. Hoffman & Son, employer, and the Em-
the statute alone constitutes the offense. ployers' Liability Assurance Corporation,
Criminal liability does not depend upon neg- Limited, insurer. Decree of Industrial Acci-
ligence or the intent with which the act is dent Board, granting compensation,
done. As was said in Commonwealth v. affirmed by the superior court, and the in-
Fentz, 247 Mass. 500, 510, 143 N. E. 322, 325: surer appeals. Reversed and entered.

"The performance of the specific act consti- Philip A. Kiley and Charles V. Hogan, both
tutes the crime. The moral turpitude or purity of Lynn, for claimant.
of the motive by which it was prompted, and Sawyer, Hardy, Stone & Morrison, of Bos-
the knowledge or ignorance of its criminal char-

ton, for insurer.
acter, are immaterial on the question of guilt.”

[2] To have instructed the jury as request- SANDERSON, J. Albert Cherbury, the ed would have been misleading and might employee, was injured while working for A. have led them to believe that the defendant B. Hoffman & Son, January 18, 1923, and could not be convicted if his conduct were died July 29, 1923. The employer's report free from carelessness and he had no in- of the injury is on file in the case.

An agreetention to violate the statute. The facts at- ment for compensation was entered into betending the accident, the rate of speed of tween the insured and Mary Cherbury, widthe truck, its condition and that of the high-ow of the deceased, for the payment of weekway, the presence of other vehicles and peo- ly compensation, and the insurer paid the ple, the strength and vision of the defend- hospital and medical bills. On March 11, ant, and all the circumstances, were proper 1924, the member of the board heard the for consideration by the jury, and they were parties on the question of specific compensaso instructed. The court further told them tion for loss of use of right arm. Counsel for that:

the insurer objected to the hearing on the “The only fact to be determined is whether ground (1) that there is no claim for specific the defendant did the prohibited act, namely compensation for loss of the use of the right operate a motor vehicle on a way so that the arm; and (2) that no administrator had been lives or safety of the public might be endan- appointed and that specific compensation gered.

does not go to dependents. On April 4, 1924, This instruction described the offense set Joseph Cherbury was appointed administraforth in the statute, it was not only accu- tor of the estate of Albert Cherbury, and on rate but adequate and sufficient.

April 8, 1924, filed a claim for compensaThe second request is similar in terms tion. The parties agreed that the evidence to the first and for reasons already stated previously heard by the single member might was rightly denied.

be considered as the record of the evidence [3] The fourth request might be perti- upon the claim filed by the administrator. nent where negligence was involved, but as The single member found that the employee's it has no relevancy to the case at bar it hand was rendered permanently incapable of was rightly refused.

use as a result of the injury of January 18, Exceptions overruled.

1923; and that his legal representative was entitled to additional compensation at the rate of $10 per week from January 18, 1923, to July 29, 1923, amounting to $274.29. The

insurer filed a claim for review, and the InCHERBURY'S CASE.

dustrial Accident Board affirmed and adopt. (Supreme Judicial Court of Massachusetts. ed the findings and decision of the single Suffolk. Feb. 26, 1925.)

member. A decree was entered ordering the Master and servant am 388-Claim for compen- payment of the amount above stated to the sation for injury not vested right, passing legal representative. The controlling questo personal representative.

tion in this case is whether compensation for Only provision in Workmen's Compensation specified injuries under G. L. c. 152, 8 36, may Act for payment of compensation to legal rep- be awarded upon a claim filed by the adresentative is for that payable in case of ministrator of the estate of the deceased emdeath, there being nothing in act suggesting ployee. that unasserted claims for compensation for The provisions of this section are for the specific injuries are vested rights, which pass "personal relief of the injured employee, his to employee's personal representative.

dependents being provided for by the comAppeal from Superior Court, Suffolk Coun-Case, 218 Mass. 8, 13, 105 N. E. 601, 603 (Ann.

pensation to be made for his death.” Burns' ty; Morton, Judge.

Cas. 1916A, 787). In the case cited compenProceeding under the Workmen's Compen- sation for specific injuries to the date of the sation Act .by Mary Cherbury for specific death of the injured employee was ordered

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


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