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(146 N.E.)

her during her life the income rents and profits GALLAGHER v. SULLIVAN et al. arising from said real estate. In case the said

Margaret dies leaving issue living at the time (Supreme Judicial Court of Massachusetts. of her decease, then it is my will that said Suffolk. March 2, 1925.)

trustees should pay to the children or child

of said Margaret the income rents and profits 1. Wills ww498–Adopted children not “issue,” arising from said 'real estate until said child within provisions of will creating trust.

or children arrives at the age of twenty-one Under P. S. c. 148, § 8, and R. L. c. 154, 8 years each child to receive his share of said 8, adopted children are not “issue,” within pro- real estate when he or she arrives at the age visions of will creating trust for daughter and of twenty-one years. In case the said Marher issue, with remainder to others, if she died garet dies without issue living at the time of without issue.

her decease, then it is my will that said real [Ed. Note.-For other definitions, see Words estate should go to my son James T. Gallagher and Phrases, First and Second Series, Issue.] his heirs and assigns forever. If in the judg2. Trusts en 169 (3)-Child of remainderman ment of my said trustees it should become necheld entitled to notice of petition for appoint. essary to sell the real estate mentioned in this ment of trustee.

the fourth item of my will, I hereby give them

the power and authority so to do and to make Where will created trust for benefit of testator's daughter and her children, with remain. also the right to sell either at public auction,

proper deed or deeds to pass the same, and der to son and his heirs if she died without issue, held that, on death of such beneficiary sale to be judiciously invested and the income

or private sale. The money realized from said without issue while acting as trustee, and on petition of an adopted child to be appointed from the same to be paid according to my will trustee, a child of the son had vested interest in the same manner and to the same parties in the property held in trust, and under G. L.

as already stated in this item. In case of the c. 203, § 5, was entitled to notice of petition. death of either of the said trustees it is my

will that the surviving one shall continue to 3. Trusts en 169(3)-Decree appointing trus. act and for that purpose I give him full autee held not subject to collateral attack, thority and power to do and perform and carry

Decree appointing trustee, and reciting that out the provisions of my will in every respect all persons interested had assented, held not

as fully as though he was the only one appointsubject to collateral attack, though all persons

ed by me."
interested had not had notice of petition for
appointment or assented.

[1] The trustees named in the will were 4. Trusts fm 169(3) - Petition for revocation duly appointed, but Keany having died, Galof decree appointing trustee held appropriate lagher. continued as sole trustee until his remedy, and properly allowed.

death in 1908, when he was succeeded by Where probate court wrongfully appointed Margaret J. Manning, the unmarried benetrustee without notice to persons having vest- ficiary for life, who acted as trustee until ed interest in trust property, as required by her death in 1923 without issue. By decree G. L. C. 203, § 5, held, petition for revocation of the court of probate she adopted in 1908 of decree was appropriate remedy, and prop Mary F. M. Arancio, now Mary F. M, Forerly granted.

syth, and Grace E. V. Sullivan, children of

James T. Gallagher by his first marriage, Appeal from Probate Court, Suffolk Coun- who, after the death of his wife married ty; Dolan, Judge.

again, and left at his death a widow and Petition by James T. Gallagher for revo- three children by the second marriage. The cation of decree appointing trustee over petitioner James T. Gallagher is a son of property in which petitioner had vested in- James T. Gallagher by the second marriage, terest without notice to petitioner, opposed and a grandson of the testator. The will of by Grace E. V. Sullivan and another. De- James T. Gallagher, which is pending for cree for petitioner, and defendants appeal. probate, after making provision for his wife, Affirmed.

provides that the residue of his estate both S. R. Cutler, of Boston, for petitioner.

real and personal shall go to his five chilFrank J. Rogers, of Boston, for respond- however, was not the adopting parent, and

dren share and share alike. The testator, ents.

at the death of Margaret J. Manning the BRALEY, J.

trust terminated as her adopted children are The fourth clause of the will of Neil Gallagher, which was admitted clause of the will. P. S. c. 148, § 8; R. L

not “issue" within the meaning of the fourth to probate July 13, 1883, reads as follows:

C. 154, § 8; Blodgett v. Stowell, 189 Mass. "I give, devise and bequeath to James T. 142, 75 N. E. 138; Brown v. Wright, 194 Gallagher and Matthew Keany all my real es- Mass. 540, 80 N. E, 612; Gammons v. Gamtate situated on Margaret street in the north

mons, 212 Mass. 454, 99 N. E. 95; Walcott part of the city of Boston, and also all my real estate in Decatur Court (No. 3) situate

v. Robinson, 214 Mass. 172, 100 N. E. 1109; in the Bunker Hill district; but in trust never Young v. Stearns, 234 Mass. 540, 543, 125 N. theless to hold the same for the benefit of my E. 697, 8 A. L. R. 1010. daughter Margaret J. Manning and to pay to [2-4] What has been said sufficiently shows

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E. 49


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that when Mary F. M. Forsyth, the adopted , denied the signature of all parties, and, the
child of Margaret J. Manning, filed on April plaintiff having offered no evidence that the
9, 1923, her petition to be appointed trus- signature of Goodowsky, the payee, who ap-
tee to succeed Margaret J. Manning, and re- peared on the back of the note to be the
ceived the appointment, the petitioner had last indorser, was genuine, he had failed to
a vested interest in the property held in show title in himself. Whitmen v. Fournier,
trust, and was entitled to notice of the pe- 228 Mass. 93, 117 N. E. 3; Levison v. La-
tition by publication or personal service, valle, 243 Mass. 47, 49, 136 N. E. 645; G. L.
which never was given, and to the granting c. 231, § 29; Lowell v. Bickford, 201 Mass.
of which he never has assented. G. L. c. 543, 88 N. E. 1. The defendants' motion for
203, $ 5; Shaw v. Paine, 12 Allen, 293, 295; a directed verdict should have been granted.
Bradstreet v. Butterfield, 129 Mass. 339, 342; Exceptions sustained.
Dexter v. Cotting, 149 Mass. 92, 96, 21 N. E.
230. While the decree recites that all persons
interested assented, and the assent of the
ađopted children of Margaret J. Manning was PRIORELLI et al. v. GUIDI et al.
inoperative, it cannot be collaterally attacked

(Supreme Judicial Court of Massachusetts. for irregularity. McKim v. Doane, 137 Ma

Suffolk. Feb. 27, 1925.) 195; McCarron v. New York Central Railroad, 239 Mass. 64, 69, 131 N. E. 478. But Husband and wife Ons 235(2)-Genuineness of the court of probate could not deprive the signature held a jury question and plaintiffs petitioner of his right to be heard, and his

not bound by testimony of adverse party. petition for revocation of the decree, which The introduction in evidence of notes purthe court properly granted was the appro- porting to bear signatures of husband and wife, priate remedy. Waters v. Stickney, 12 Al- without her authority, and her genuine signa

husband's testimony that he wrote wife's name ien, 15, 90 Am. Dec. 122; Neafsey v. Chin- | ture written on witness stand, held not to recholo, 225 Mass. 12, 113 N. E. 651.

quire direction of verdict for defendant wife; Decree affirmed.

the genuineness of the signature being for the
jury, expert evidence not being indispensable,
and plaintiffs not being bound by testimony of

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Exceptions from Superior Court, Suffolk

County; Morton, Judge. (Supreme Judicial Court of Massachusetts. Suffolk. Feb. 28, 1925.)

Action of contract by Romeo Priorelli and

others against Ubaldo Guidi and Esterina Bills and notes Cw523—Title not shown in ab- Guidi. On exceptions of Esterina Guidi to

sence of evidence of genuineness of signa- refusal of directed verdict in her favor. Ex-
ture of payee as indorser.
In action on note indorsed before delivery

ceptions overruled.
by one of parties defendant, where answer de- John E. Crowley, of Boston, for plaintiffs.
nied signature of all parties, and plaintiff, an ag- Frank P. Fralli, of Boston, for defend-
signee, claiming rights of payee, under G. L. c. ants.
231, $ 29, offered no evidence that signature of
payee, whose name appeared as last indorser,

PER OURIAM. This is an action of conwas genuine, he showed no title in himself.

tract on two promissory notes purporting to Exceptions from Superior Court, Suffolk be signed by the two defendants, who are County; Frederick J. MacLeod, Judge.

husband and wife. One of the plaintiffs tes

tified that he lent to the husband two sums Action of contract by James A. Canton, as of $1,000 each; that he declined to take holder of promissory note, against Philip promissory notes signed by the husband Shaffer and others. On defendants' excep-alone, but required the signature of the wife; tions to denial of directed verdict. Excep- that the husband after signing the notes in tions sustained.

his presence took the notes, which then had Samuel Brenner, of Boston, for plain-only the husband's signature on them, and tiff.

shortly thereafter presented them to the Harry Bergson, of Boston, for defendants. plaintiff in the form in which they were of

fered in court, with the statement that the BRALEY, J. The defendant Los Angeles signature of the wife had been put upon Company made a promissory note payable to the notes by her; and that thereupon the the order of H. Goodowsky, which before de- money was advanced. The plaintiff's called livery wa endorsed by the defendant Shaf- both defendants as witnesses. The husband fer. The plaintiff, wbile a holder of the testified that he signed his wife's name to note was not a holder in due course, but con- the note without any authority from her and tended that as an assignee he had all the without attempting to disguise his handrights of the payee. The answer, however, I writing or imitate that of his wife. The wife

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

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(146 N.E.) testified that the writing of her name on the Exceptions from Superior Court, Middlenotes was not her signature and that she sex County; John A. Aiken, Judge. did not authorize her husband to write her

Writ of review by Arthur H. Whitney to While she was on the witness stand review judgment recovered against him by she wrote her signature on a piece of pa- Rose M. Porter in action of tort. . On plainper, which was received in evidence. No oth- tift's exception to denial of motion for dier evidence was introduced.

rected verdict, to admission of evidence, and The only exception is to the refusal by the to denial of request for rulings. Exceptions trial judge to direct a verdict in favor of the

wife. There was no error of law in this de-
nial. The notes, together with the genuine

C. F. Eldredge, of Boston, and P. F. Ryan, signature of the defendant wife made in the

for plaintiff. presence of the jury, were enough to war

W. J. Barry, of Boston, for defendant, rant a finding in favor of the plaintiff. It is

BRALEY, J. [1] The defendant Porter on not necessary that any expert evidence be

January 3, 1916, having recovered final judgintroduced. The jury themselves on com

ment for damages assessed by the court in parison of the genuine signature with the

an action of tort against the plaintiff in resignatures on the notes might use their own

view who never appeared but was defaulted, judgment. Whalen v. Rosnosky, 195 Mass.

he petitioned within one year thereafter for 545, 81 N. E. 282, 122 Am. St. Rep. 271; Noyes v. Noyes, 224 Mass. 125, 130, 112' N. E. a writ of review which was granted, and the 850; Levi v. Rubin, 241 Mass. 40, 134 N. E. execution was stayed or superseded. A re231. The plaintiffs were not bound by the view under our law is said to be equivalent

to a new trial after judgment, and everytestimony of the defendants simply because thing is open upon the review as it would they called them as witnesses,

have been in the original action. But the Exceptions overruled.

judgment is not set aside. It stands until the judgment in review which may affirm, reverse, or modify the former judgment in whole or in part, or make such other disposi

tion of the case as may be necessary to seWHITNEY v. PORTER.

cure the just and equal rights of all parties. (Supreme Judicial Court of Massachusetts.

Safford v. Knight, 117 Mass. 281, 284; Lynn Middlesex. Feb. 28, 1925.)

Gas Co. v. Creditors' National Clearing

House, 235 Mass. 114, 118, 126 N. E. 364; G. 1. Review Om I-Writ of review equivalent to L. C. 250, $ 22. new trial, except judgment stands.

[2] If issue had been joined in the origiUnder G. L. c. 250, $ 22, writ of review is nal suit, the case upon review could be tried equivalent to new trial after judgment, except upon the original pleadings or on any that judgment is not set aside, but stands until amendment of the original pleadings. G. L. affirmed, reversed, or modified.

c. 250, § 31; Fuller v. Storer, 111 Mass. 281, 2. Review Omw22–Case on review tried on 282, 283. But section 32 provides, that where pleadings.

judgment in the original action, as in the Under G. L. c, 250, $$ 31, 32, case on re- case at bar, is rendered without a joinder view may be tried on original pleadings or of issue, the parties shall plead or answer amendments thereto, though, if there has been upon the review in like manner

as they no joinder of issues, parties must plead or answer on review, as they might have done in might have done in the original action, and original action.

the case shall be tried upon any issue of fact

or law joined upon such pleadings or answer. 3. Review On 22-On WI of review amend- The judgment was founded on alleged acment changing action from tort to contract is tionable misrepresentations, as stated in the improper.

declaration, of Whitney and other persons On writ of review to review default judg- joined as defendants against whom the plainment taken against plaintiff in review in action tiff before judgment had discontinued. Good of tort, it was error under G. L, c. 250, $8 31, 32, to permit defendant in review to strike or

v. Lehan, 8 Cush. 299, 300. The defendant in amend original declaration in manner to sub- review could be permitted so to amend her stitute declaration on account annexed.

declaration as to state her claim in tort more 4. Appeal and error om 66Bill of exception in the original action.

fully or accurately as she might have done taken by plaintiff in review to rulings of

But the petition for court treated as interlocutory, in absence of review as well as the writ of review relatshowing whether trial proceeded to final con

ed solely to a judgment in an action of tort. clusion.

There was no judgment in an action of conBill of exception taken by plaintiff in review tract in existence, and the allowance of the to rulings of court treated as interlocutory, in amendment changing the action from tort to absence of showing whether trial proceeded to contract transformed the proceedings to a final conclusion.

review of a judgment which could not lawFor other cases see same toplo and KEY-NUMBER in all Key-Numbered Digests and Indexes

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fully have been entered. The amendments | 3. Banks and banking am 315(3)-Maker of to the pleadings which may be allowed un note payable insolvent trust company not ender section 31, and the pleadings permissible

titled to set-off deposit in his name as trus. under section 32, are the formal allegations

tee. by the parties of their respective demands,

In action on note by insolvent trust comclaims and defences, and do not embrace the pany in course of liquidation, defendant held substitution by way of amendment of an ac

not entitled to set-off amount of deposit in his

name as trustee. tion of contract for an action of tort as stated in the writ. The allowance of the amend- 4. Banks and banking Om317 Defendant in ment making such change was wrong.

action on note by insolvent bank not entitled [3] If the cause of action could not be al.

to set-off amount paid it for capital stock

because certificate not filed, tered, the amendment striking out the origi. nal declaration and substituting a declara

In action on note by insolvent trust comtion on an account annexed for a commission pany in course of liquidation, defendant held

not entitled to set-off amount paid for shares in procuring a construction mortgage loan of capital stock of company when legally oralso was improperly allowed.

ganized, because certificate of increase of cap[4] It does not specifically appear whether ital stock was not filed in view of G. L, c. 156, after these rulings to which the plaintiff in $8 41, 43, and chapter 172, § 18. review excepted, the trial proceeded to a

5. Banks and banking 317–Equitable setfinal conclusion, and accordingly we treat off against claim of insolvent bank not per. this bill of exceptions as interlocutory. Far missible when giving priority over others. ris v. St. Paul's Baptist Church, 216 Mass. Under G. L. c. 231, § 31, defendant may not 570, 104 N. E. 639. The case while the first have equitable set-off of claims which could bill of exceptions was pending came on for not be set-off at law against claim of insolvent further trial before another judge of the trust company on a note, where to do so would court, and the defendant in review obtained be to give such depositor priority over other a verdict on the amended writ and pleadings. creditors entitled to share equally in any reIt is however unnecessary to review the de- covery from him. nial of the motion of the plaintiff in review

Exceptions from Superior Court, Suffolk for a directed verdict, or his exceptions to

County; Lawton, Judge. the admission of evidence, or to the denial of various requests for rulings, or to the in

Action of contract by the Cosmopolitan structions. The presiding judge undoubted- Trust Company, by Joseph C. Allen, Commisly was bound by the record as it stood un- sioner of Banks, against Jacob Wasserman to der the rulings previously considered, which recover on promissory note, wherein defendhad not been reversed. But these rulings ant filed declaration in set-off. On defendhaving been unsound, the second trial re- ant's exceptions to court's rulings, findings, sulted in a mistrial, and the general entry and refusals to rule. Exceptions overruled. must be:

S. M. Child, of Boston, for plaintiff. Exceptions sustained.

J. Wasserman, of Boston (M. M. Horblit, of Boston, with him), for defendant.

BRALEY, J. [1, 2] The defendant did not

specifically require proof of his signature,

and the note having been introduced, he of. (Supreme Judicial Court of Massachusetts. fered evidence in support of his declaration Suffolk. Feb. 28, 1925.)

in set-off which if sustained was more than 1, Banks and banking Em315(3)–Right of set. sufficient to cover the plaintiff's claim. The

off against claim of bank in course of liquida-judge, who heard the case without a jury distion determinable as of date when commis- allowed the set-off and found for the comsioner took possession.

pany. The rights of the defendant as plain. In action to recover on note as asset of tiff in set-off under G. L. C. 232, 8$ 1, 2, are insolvent trust company, rights of defendant as to be determined as if the writ had been plaintiff in set-off under G. L. c. 232, 88 1, 2, dated September 25, 1920, when the commiswere determinable as if writ had been dated sioner of banks took and retained possession the day commissioner of banks took over com

of the company for the purpose of liquidat. pany for liquidation.

ing and winding up its affairs. Cosmopoli2. Banks and banking Om315(3)–Partnership tan Trust Company v. Ciarla, 239 Mass. 32, claim against insolvent trust company could 36. 131 N. E. 337; Bailey v. Commissioner not be set-off against note of individual part of Banks, 244 Mass. 499, 501, 138 N. E. 915.

The company then held the promissory note Balance due partnership on checking account when insolvent trust company was taken of the defendant now in suit, and the firm of over for liquidation cannot be set-off against Horblit & Wasserman had a balance due note of individual partner, notwithstanding on a checking account of $6,941.84, which is partnership claim is assigned to individual. the first item of the declaration in set-oir.

For other cases see samo topic and KEY-NUMBER in all Key-Numbered Digests and Indeses

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(146 N.E.) This claim was duly proved February 28, give the defendant priority over other cred1921, the certificate of proof reading, “sub- itors of the same class. Bachrach y. Comject to rights of set-off to be hereafter deter- missioner of Banks, 239 Mass. 272, 275, 131 mined,” and on March 1, 1921, the certifi- N. E. 857; Tremont Trust Co. v. Graham cate of proof was formally assigned to Was- Furniture Co., 244 Mass. 134, 137, 138 N. E. serman by the other member of the firm, 330. and the first dividend paid on the claim has The defendant's requests in so far as not been credited on the note by the commis- | given were denied rightly, and the exceptions sioner. But these transactions separately to the exclusion of evidence not having been or together did not change the legal char- argued are treated as waived. acter of the original deposit, which was a Exceptions overruled. debt due from the company to the partnership September 25, 1920, and not to Wasserman individually. It cannot in the present action either by novation or subrogation

GIFFORD V. EASTMAN. be made a subject of set-off for his benefit.

(Supreme Judicial Court of Massachusetts. [3] The second item is for a deposit of $400

Suffolk. Feb. 28, 1925.) "standing in his name as trustee,” and the defendant's answer in set-off admitted that 1, Brokers 26 - One with whose money Wasserman as trustee for one Jacob Cutler

stock is purchased by broker becomes owner

of such stock, entitled to it on demand. had a claim which was duly proved and a certificate had been issued to him as trustee. by broker becomes owner of such stock, enti

One with whose money stock is purchased The defendant, although contending that the tied to it on demand. money was his own, did not controvert this admission, and the judge could find on all 2. Brokers On29_Broker's fallure to sell, and the evidence that Wasserman held this de

retention of stock held by him only as agent

for sale, held evidence of intent to appropri. posit as a fiduciary, and it could not be used

ate to himself. to reduce his personal indebtedness.

Broker, holding customer's stock with di. [4] The last item is for $1,500, the amount (rections to sell forthwith at the then 'quoted paid for ten shares of the capital stock of market price, or to return stock, held without the company, which is alleged never to have discretionary power, so that failure to sell or been legally organized, and that if the issu- return such stock for over two months was ance of the stock was legal, the certificate evidence of intent to appropriate to himself. required by law was never filed, and the 3. Appeal and error om 1039(13)-Verdict for transaction became or was void. See G. L.

plaintiff not upset, though cause of action not c. 156, 88 41, 42, 43, chapter 172, § 18. But precisely set forth in declaration. the legality of the corporate organization of Verdict for plaintiff in action against brothe company, as well as the liability of stock- ker for neglect or refusal to sell or return holders thereunder, is settled by Commission stock belonging to plaintiff will not be upset, er of Banks v. Cosmopolitan Trust Co., 247 though cause of action is not precisely set

forth in declaration.
Mass. 334, 142 N. E. 100. And the failure
to file with the secretary of the common- 4. Appeal and error 197(3)-Question of
wealth a certified copy of the records of the variance between evidence and allegations of
meeting at which the increase of capital count cannot be raised for first time in Su.
stock was voted did not relieve the defend- preme Judicial Court.
ant of his primary obligation as a stockhold- Question of variance between evidence and
er. Cunningham v. Commissioner of Banks, allegations of count cannot be raised for first
249 Mass. 401, 144 N. E. 447.

time in Supreme Judicial Court.
[5] If, without deciding, it is assumed that
the amended answer sets forth an equitable

Exceptions from Superior Court, Suffolk
defense which is permitted in actions at law County; R. W. Irwin, Judge.
by G. L. c. 231, $ 31, the defendant finally Action of contract or tort by Fred W. Gif-
invokes the doctrine of equitable set-off, cit- ford against George A. Eastman, with trustee
ing with cases from other jurisdictions Hol- process. On defendant's exceptions to re-
brook v. Bliss, 9 Allen, 69; Spaulding v. Back-fusal to rule. Exceptions overruled.
us, 122 Mass. 553, 554; Abbott v. Foote, 146 A. Mehlinger, of Boston (G. A. A, Pevey, of
Mass, 333, 334, 15 N. E, 773, 4 Am. St. Rep. Boston, on the brief), for plaintiff.
331 ; Perry v. Pye, 215 Mass. 403, 413, 102 P. H. Kelley, of Boston, for defendant.
N. E. 653.

But in those suits no question of the winding up of an insolvent trust com- BRALEY, J. The plaintiffon or about pany was presented as in the case at bar, November 18, 1919, having ordered the dewhere the claim declared on is an asset of fendant, a stockbroker, to purchase 5,000 the company to be collected for the benefit shares of “Oklahoma Oil stock” at 13 cents of creditors, and to allow a set-off under the a share, the defendant notified him that the conditions appearing in the record would stock had been bought, and rendered a state

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

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