the work of building it into a dwelling house was going on. Afterwards the respondent Patch conveyed an undivided half of a portion of the lot, which did not include the part on which the barn stood, but did include that on which was the double house. The petitioner's certificate described the lot as it was when the contract was made between him and Collupy, under which his lien arose, and as it is described in his petition. Under the statute he has a lien on the building and the lot of land on which it stands. As soon as his contract was made he acquired a right to have a lien, not only on the building, but on the lot on which, by the terms of his contract, the building was to be erected. That was the whole of the lot, on a part of which the barn stood. There had then been no division of it, and there was nothing to indicate that a division was contemplated, much less to show how a division would be made. The right to a lien attached to every part of the lot, as well that on which the barn was as that occupied by the double house. Each of the buildings was attached to the realty, and the land and buildings went together as real estate. In this case we have no occasion to consider questions in relation to apportionment between claimants of liens for work on different buildings on the same lot; but a lien for work on either of the buildings extended to the whole lot as it was when the contract was made, including everything which belonged to the real estate. Quimby v. Durgin, 148 Mass. 104, 19 N. E. Rep. 14; Wall v. Robinson, 115 Mass. 429; Batchelder v. Rand, 117 Mass. 176. The conveyance of a portion of the premises after the contract with the petitioner was made does not affect his lien. Howard v. Robinson, 5 Cush. 119; Dunklee v. Crane, 103 Mass. 470.

Exceptions overruled.

(156 Mass, 355)

GANNON et al. v. SHEPARD. (Supreme Judicial Court of Massachusetts. Middlesex. May 10, 1892.) MECHANICS' LIENS-HOUSE ON WIFE'S LANDSGIFT OF HUSBAND.

On a petition to enforce a mechanic's lien for labor performed in the erection of a house on respondent's land it appeared that the house was built by respondent's husband as a gift to her, and that she saw petitioners at work on the house, and did not object to their furnishing labor or materials. Held, that whether or not the labor was furnished by respondent's consent was an inference of fact to be drawn by the justice who tried the case; and his finding cannot be revised on exceptions.

Exceptions from superior court, Middlesex county; CHARLES P. THOMPSON, Judge Action by John J. Gannon and others against Julia N. Shepard to enforce a mechanic's lien for labor furnished in the erection of a house on respondent's land. Judgment for petitioners. Respondent excepts. Exceptions overruled.

Francis Burke, for petitioners. Jesse C. Ivy, for defendant.

BARKER, J. The petitioners furnished labor in the erection of a house on the respondent's land, and the justice who tried the case has found that it was furnished

by her consent, and established a lien. The first question is whether there was evidence upon which her consent could be found. The house was built by the respondent's husband as a gift to her. There was evidence that she believed he was building it at his own personal expense, and that he was not her agent, and that the house was not built for a home for her husband and herself. But it was near her residence, and was built with her knowledge. She could and did see the workmen of the petitioners at work upon it from time to time, and upon one Occasion was in the house with her husband, and saw the petitioners at work there. She did not give any directions to them while they were at work, nor did she object to their furnishing labor or materials, nor give the notice provided for in Pub. St. c. 191, § 4. Whether the labor was or was not furnished by her consent was an inference of fact to be drawn by the justice who tried the case. If the mere fact that the respondent knew of the erection of the house by her husband would not justify the inference, she knew that it was intended as a gift to herself, and that she would be benefited by the work. The ruling that there was evidence of her consent in these circumstances was correct. It was for the presiding justice to draw or to decline to draw the conclusion, and his finding cannot be revised upon exceptions. Westgate v. Munroe, 100 Mass. 227; Arnold v. Spurr, 130 Mass. 347; Wheaton v. Trimble, 145 Mass. 345, 14 N. E. Rep. 104.

The respondent further contends that the petitioners have no lien, because they were subcontractors under a contractor who had agreed, in writing under seal, with her husband, to build the house, and who in the contract had stipulated not to sublet except by the written consent of the other party. But the court found, upon evidence not stated in the bill of exceptions, that this provision was orally waived. It is therefore unnecessary to consider whether, if it had remained in force, it would have prevented the petitioners from claiming a lien for work done under their subcontract. The rulings requested by the respondent upon this branch of the case were immaterial, in view of this finding of fact. Exceptions overruled.

(156 Mass. 284)

SWEAT V. BOSTON & A. R. Co. (Supreme Judicial Court of Massachusetts. Suffolk. May 10, 1892.)

INJURY TO EMPLOYE-EVIDENCE CONTRIBUTORY NEGLIGENCE-NOTICE OF DEFECTS.

1. In an action by a brakeman against a railroad company for personal injuries it appeared that at a certain point on defendant's line there was a platform to protect the switch rods about 375 feet long, parallel with the track, and about half an inch above the top of the rail, with a sig nal tower at one end. Plaintiff testified that at night, in order to couple two portions of the train, he jumped off the car by the tower; that he ran along the platform for about 30 feet, stepped on the end of a loose board, and was thrown under the train. Held, that plaintiff was not bound by his estimate that the place where he fell was within 30 feet of the tower, and that evidence was admissible to show the presence of

ence of such a board at or near any place where, on the evidence, the jury would have been warranted in finding that the accident took place.

The defendant further contends that the court should have ruled, as matter of law, that the plaintiff was not in the exercise of due care in running so near the edge of the platform that one foot was on the part of a board which extended beyond the edge of the joist which supported it. The width of the platform was only two feet and seven inches, and the board extended at the right only an inch. The plaintiff was running on a platform on which he had a right to run in the discharge of his duty. It was in the night; and we cannot say, as matter of law, that he was guilty of negligence in stepping on the edge of the platform, although but a few inches intervened between him and the moving cars.

In

99

One Graham. a witness called for the defendant, testified that he was a machinist, and that it was his duty to keep the boxes covering the signal rods and wires in repair; that he had his headquarters in Boston, and had two men under him, and was himself under a master carpenter. answer to the question, “How as to any repairs in the wooden boxes?" he answered, "Well, I reported anything I saw wrong, and the master carpenter attended to it. He was then asked, "Did you, or your men, attend to any of those repairs yourselves?" and he answered, "Well, we might put a nail in if it was required, if we suw anything that was loose. There was also evidence from which the jury might have found that the board which caused the injury had been loose for a day or two days before the accident. The defendant asked the court to instruct the jury that the full legal duty of the defendant to the plaintiff was to employ persons of competent skill and experience, whose business it was to keep the boxing over the rods and wires in proper condition as to repairs; and that, if the jury found that it did employ such persons, the plaintiff could not recover. The court rightly refused to give this instruction. It did not fully and accurately state the duty which the defendant owed the plaintiff. It was incumbent on the defendant not only to employ suitable persons to keep its works in repair, but also to use reasonable diligence to see that they performed their duty; and so the jury were instructed. Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. Rep. 574; Daley v. Railroad Co., 147 Mass. 101, 114, 16 N. E. Rep. 690; Babcock v. Railroad Co., 150 Mass. 467, 23 N. E. Rep. 325; Myers v. Iron Co., 150 Mass. 125, 22 N. E. Rep. 631; Donahue v. Drown, 154 Mass. 21, 27 N. E. Rep. 675; Mooney v Lumber Co., 155 Mass. --, 28 N. E. Rep. 352; Connors v. Manufacturing Co., 155 Mass. --, 30 N. E. Rep. 559. defendant also asked the court to instruct the jury that the defendant was entitled to reasonable notice of the existence of the defect complained of, and an opportunity, after such notice, to repair the same. This request was rightly refused. It entirely omits to refer to the liability of the defendant, if the latter might, by the exer.

The

cise of reasonable care, huve known of the defect. Durgin v. Munson, 9 Allen, 396. 399; Arkerson v. Dennison, 117 Mass. 407; Boyle v. Mowry, 122 Mass. 251. The defendant also asked the court to rule that upon the whole evidence the plaintiff was not entitled to recover. We have already stated that it was a question for the jury whether the plaintiff was in the exercise of due care, and we are of opinion that, for the reasons before stated, there was evidence of negligence competent to be submitted to the jury. Exceptions overruled. (156 Mass. 388)

POLLOCK V. FARNHAM et al.

(Supreme Judicial Court of Massachusetts.
Middlesex. May 10, 1892.)
WILLS-CONSTRUCTION.

Testatrix placed her property in trust for the use of her sister, and provided that after the sister's decease certain legacies be paid from the trust property, among which was one of $2,000 to a niece. The will then provided that "the rest and residue of all my property of every kind, including any and all legacies which may fall from the death of the legatee or legatees," be put in trust for her niece, "but, if she die without issue, I then direct that the principal be divided into three equal portions," etc. The niece died without issue, before the sister's decease. Held, that the $2,000 legacy to the niece belongs to the residuum estate, to be divided under the will, rather than to the administrator of the niece.

Case reserved from supreme judicial court, Middlesex county; CHARLES ALLEN, Judge.

Bill by Charles Pollock, trustee, against John E. Farnham; administrator of the estate of Madeleine F. Pollock, deceased, and others, for the construction of the will of Sarah Bradlee Pollock, deceased. The case was reserved for determination by the full con ́t.

Wm. B. Durant, for plaintiff. Wm. A. Hayes, for defendants.

FIELD, C. J. Sarah B. Pollock, by her will, written by herself, first gave her "wearing apparel, jewelry, money on hand," etc., to her sister, Susan Emmons Pollock, and provided that, “in the event of my said sister's decease at the time of or before my decease, then I give all the | aforesaid articles to my niece Madeleine Fletcher Pollock." All the rest and residue of her property of every kind she gave to a trustee to collect the income, and "to place the same in the hands" of her sister, Susan Emmons Pollock, for her use so long as she shall live. The will then proceeds as follows: "After the decease of my said sister, I give and devise as follows, viz.: Of the rest and residue so devised in trust as foresaid, I give and bequeath to my neice, Madeleine Fletcher Pollock, the sum of two thousand dollars; to my cousin, Elizabeth Price Van Brunt, the sum of one thousand dollars, and, in the event of her death, the same to be paid to her daughter, Sarah Pollock Osborne;" and then there follow in the same paragraph other bequests of various sums of money to other persons, some of whom were apparently her relatives and some were not. It may be assumed that, according to the weight of authority, the

words, "after the decease of my said sister, I give and devise as follows," standing alone, would create equitable remainders, which vested as of the death of the testatrix, and that the death of her sister was intended to fix the time when the sums of money bequeathed were to be paid, and not the time when the right to receive them should vest in the legatees. Gibbens v. Gibbens, 140 Mass. 102, 3 N. E. Rep. 1; Weston v. Weston, 125 Mass. 268; Wight v. Shaw, 5 Cush. 60; Blanchard v. Blanchard, 1 Allen, 223. The words, "to my cousin Elizabeth Price Van Brunt, the sum of one thousand dollars, and, in the event of her death, the same to be paid to her daughter, Sarah Pollock Osborne," must mean, we think, that this sum shall be paid to Sarah Pollock Osborne if Elizabeth Price Van Brunt die before the death of the life tenant, because the legacy becomes payable on the death of the life tenant, and the time when it becomes payable is the time when it must be deter. mined whether it shall be paid to Mrs. Van Brunt or to her daughter.

The next paragraph of the will is as follows, viz.: "The rest and residue of all my property of every kind, including any and all legacies which may fall from the death of the legatee or lega tees, I devise and bequeath as follows: To be put in trust for my niece, Madeleine Fletcher Pollock, the income and interest to be paid to her order, or separate receipt, if married, semiannually or quarterly, as she may desire; said income not being subject to the payment of her husband's lawful debts. If, upon the death of my niece, Madeleine Fletcher Pollock, she leave issue, I desire that the principal be equally divided to her children, share and share alike; but if she die without issue, I then direct that the principal be divided into three equal portions. One portion I bequeath to my cousin Elizabeth Price Van Brunt, or her lawful issue; one portion I bequeath to my cousins Maria A. Pollock, Sarah A. Pollock, Hannah R. Hill, and Harriet P. Pollock, daughters of the late George Pollock, of Boston, or to such of them as shall be living, share and share alike; and one portion I bequeath to Jarvis Hall, in Denver, Colorado." Jarvis Hall is a corporation. Madeleine Fletcher Pollock died after the death of the testatrix and before that of Susan Emmons Pollock, having never had issue. The trust for Madeleine Fletcher Pollock would not take effect until after the death of Susan Emmons Pollock, and in the event which happened the property that would have been put in trust for Madeleine on the death of Susan becomes payable to the persons to whom it was bequeathed, if Madeleine died without issue. An important question is whether it was intended that the legacies which may "fall" from the death of the legatees should be confined to legacies which lapsed by the death of legatees in the lifetime of the testatrix, or should include all legacies which may fail from the death of any legatees during the life of Susan Emmons Pollock. The testatrix had carefully provided for the event of the death of her sister in her own lifetime, but had made no similar provision with

66

reference to other lega tees. The first reference to the event of a death of a legatee in the residuary clause is to that of Elizabeth Price Van Brunt, in the first paragraph, which we have said must refer to her death at any time before that of Susan Emmons Pollock. The bequest of the final residuum, in the next paragraph, of one third "to my cousin, Elizabeth Price Van Brunt, or her lawful issue," also, we think, refers to the time when the property is to be distributed, and means that the one third should be paid or conveyed to Elizabeth Price Van Brunt, if then living; if not, to her lawful issue then living. The same, we think, is true of the next clause, in which one third is bequeathed to the daughters of the late George Pollock of Boston, or to such of them as shall be living." This means, we think, that the daughters who take must be living at the time of the distribution. Some of the pecuniary legacies given out of the residuum in the first paragraph are small sums of money to friends, and it probably would not occur to the testatrix that if these friends died before the death of Susan Emmons Pollock, the sums should be paid on her death to the administrator of their estates. Construing the phrase, “including any and all legacies which may fall from the death of the lega tee or legatces, in connection with the context, and especially with the other provisions with reference to the death of legatees, we are of opinion that it is reasonably clear that the testatrix intended that all legacies out of the residuum should "fall" if the legatees died before the death of Susan Emmons Pollock, except in the case in which she made special provision that, in the event of the death of Elizabeth Van Brunt before the death of Susan, another person, if living, should take. See Fargo v. Miller, 150 Mass. 225, 22 N. E. Rep. 1603; Codman v. Krell, 152 Mass. 217, 25 N. E. Rep. 90; Wood v. Bullard, 151 Mass. 324, 25 N. E. Rep. 67; Peck v. Carlton, 154 Mass. 231, 28 N. E. Rep. 166. The single question reserved is whether the legacy of $2,000 to Madeleine Fletcher Pollock should go to the administrator of her estate, or should fall into the residue of the estate of the testatrix. We are of opinion that it falls into the residue. Decree accordingly.

(156 Mass. 277)

WILLWORTH V. LEONARD. SAME V. RICHARDS. (Supreme Judicial Court of Massachusetts. Suffolk. May 9, 1892.) INSANITY-EVIDENCE-DISCHARGE OF GUARDIAN.

"

Where the guardian of an insane ward was discharged as being an unsuitable person, and no other guardian was appointed, in ejectment by the lessee of the ward, under a lease made after the guardian was discharged, the decree adjudg ing the ward insane is not conclusive of his insanity when the lease was made.

Appeal from superior court, Suffolk county.

Ejectment by Thomas Willworth, lessee of Joseph Willworth, against Sarah Leonard, and the same against Ellen Richards. Plaintiff had judgment in both cases, which were submitted on the same agreed

statement of facts, and defendants appeal. Affirmed.

1. D. Van Duzee, for appellants. C. R. Morse, for appellee.

MORTON, J. It appears that Joseph Willworth, then of Boston, was adjudged insane, after due notice and hearing by the probate court of Suffolk county, December 12, 1881, and his wife was appointed his guardian. On the 31st May, 1888, he petitioned for the removal of his guardian for unsuitableness; and on the 15th June, 1888, further petitioned that she should be discharged, on the ground that the guardianship was no longer necessary. Both petitions were dismissed by the probate court, and he appealed to the supreme judicial court, in which, on May 27, 1890, decrees were entered affirming the decree of the probate court dismissing the petition for discharge of the guardianship, but reversing that on the petition for removal, and removing her, and remitting both cases to the probate court for further proceedings. On May 28, 1890, a petition was presented to the probate court at Cambridge, alleging that Willworth was an inhabitant or resident of Cambridge, and asking for the appointment of one Avis Willworth as guardian. This petition was assented to by Willworth, but the probate court dismissed it. The lease in question was made July 7, 1890. The defendants have introduced no evidence except the copies relating to their various proceedings, and they contend that it appears from them that the decree by which Willworth was adjudged insane is in force, and has never been revoked or modified, except so far as the removal of the guardian may have modified it, and that the lease was therefore ineffectual to pass to the plaintiff an interest in the premises described in it, because the decree conclusively shows that Willworth was insane when it was made. We think this position cannot be sustained. The removal of the guardian terminated the guardianship. Harding v. Weld, 128 Mass. 591; Chapin v. Livermore, 13 Gray, 562; Allis v. Morton, 4 Gray, 63; Loring v. Alline, 9 Cush. 70. Sending the case back to the probate court for further proceedings did not qualify the terminating effect of the removal. It was a disposition of the case made necessary by the fact that it was in the hands of an appellate court. A new notice and a new hearing were necessary in the probate court to the appointment of another guardian. The court could not proceed on the strength of the former hearing and decree. Harding v. Weld, supra; Allis v. Morton, supra. The title to the property remained all the time in the ward, and the guardian could make no contract relating to the property that would bind him when the guardianship ceased. Hicks v. Chap. man, 10 Allen, 463. So long as the guardianship continued, the decree of the probate court may well have been regarded as conclusive on the question of the ward's sanity, on the ground that the decree fixed the ward's status as to all the world, and also because it might greatly have em

No opinion filed.

barrassed the executors of his trust if the guardian could have been compelled to try the question of his ward's sanity in every action for or against him. White v. Palmer, 4 Cush. 147; Leonard v. Leonard, 14 Pick. 280: Leggate v. Clark, 111 Mass. 310. But when the guardianship has terminated, and a controversy has arisen between third parties, one of whom claims under a contract made with the ward after the termination of the guardianship, the reason ceases for holding the decree conclusive. Indeed, to give it the effect contended for by the defendants would be to place Willworth, because of the former decree of the probate court, in the anomalous position of being unable to make contracts concerning his own property, although he is not under guardianship, and there is no petition pending to place him there, and the court could not use the former hearing and decree as the basis for the appointment of another guardian. If the decree, like a decree of divorce, fixed permanently the status of the party affected by it, then the case might stand differently; but it did not do that. Its disabling effect continued only so long as the guardianship continued. It is true that his petition for a discharge of the guardianship was dismissed. But the removal terminated the guardianship as effectually as a discharge would have done; possibly that may have been a reason for dismissing it. A guardianship may be terminated as well by death, removal, or resignation as by a discharge. Loring v Alline, supra. No method is provided in which, after a guardianship has for any cause ceased, the decree on which it was based may be annulled. We think, therefore, that the decree of the probate court is not conclusive on the question of Willworth's insanity at the time of making the lease. Whether it is open to the defendants to raise the question of his insanity at that time, and whether, if it is, the decree would be admissible as evidence on that point, we need not now consider. The defendant's case does not rest on the ground that it is admissible as evidence tending to prove insanity, but on the ground that it conclusively establishes insanity. aught that appears, the lease was valid; though if another guardian were appointed, and he were able to show that Willworth was insane when it was made, it could be avoided. We have preferred to consider the case on the main question involved, and the view which we have taken of that renders it unnecessary to consider other questions that have been raised. Judgment affirmed.

For

(156 Mass. 280)

WARREN v. BOWDRAN. (Supreme Judicial Court of Massachusetts. Middlesex. May 9, 1892.) ADVERSE POSSESSION-COLOR OF TITLE-EVIDENCE

-ADMISSIONS.

1. Where defendant has been in adverse and continuous possession for 20 years the limitations under Pub. St. c. 196, § 1, will run against the owner, and it is immaterial whether or not defendant honestly believed he had a right to hold the land. Livingston v. Iron Co., 9 Wend. 511, distinguished.

2. In the trial of title to land, where defend