The company had forbidden hackmen to enter the building. Notwithstanding this rule, the right of a hackman to go into a part of the depot to obtain the baggage of a passenger, whose check he bad, was not controverted. The prosecutor, having the check of a passenger, was in another part of the depot; but it was held that the defendant was not justified in ejecting him altogether from the station, and the conviction was sustained.

it was held that an omnibus proprietor, carrying passengers to and from a station, could not maintain an action for a refusal to allow him to drive his vehicle into the station yard. As the proprietor was not using or seeking to use the railway, it was considered that the company owed him no duty. Jervis, Ch. J., said a passenger would, no doubt, have a right of action, if unduly obstructed, but a violation of duty to him would not give an action to the plaintiff. It is to be observed that the recent English cases are mainly controlled by Statute (17 and 18 Vict. chap. 31), to which the Massachusetts statute is similar. They relate chiefly to the question whether a prohibition to one, to ply for passengers within a station, when the same erence, under the Statute. It is generally held that it is not. See Beadell v. Eastern Counties R. Co. 2 C. B. N. S. 509; Painter v. London, B. & S. C. R. Co. Id. 702; Hole v. Digby, 27 Week. Rep. 884.

In this case it was not claimed that any rules had been violated.

The recent case of Old Colony R. Co. v. Tripp, 147 Mass. 35, 6 New Eng. Rep. 366, was an action of trespass against an expressman who solicited patronage in the plaintiff's station, contrary to its rules. W. Allen, J., says: "Passengers taking and leaving the cars at the station, and persons setting down passengers delivering merchandise or baggage for transportation from the station, or taking up passengers or receiving merchandise that had been transported to the station, had a right to use the station buildings and grounds, superior to the right of the plaintiff to exclusive occupancy. All such persons had business with the plaintiff, which it was bound to attend to in the place and manner which it had provided for all who had like business with it."

A statute of Massachusetts prescribes that railroad corporations shall give to all persons equal facilities for the use of its depot. The court held that this statute applied only to the relations between common carriers and their patrons, or those who had the right to use the station. It did not give the defendant the right to go there to solicit business because another had the right. See also Harris v. Stevens, 31 Vt. 79.

In Markham v. Brown, 8 N. H. 523, an action of trespass, brought by an innkeeper against a stage driver, the court says the defendant had clearly a right "to go to the plaintill's inn with travelers, and he might of course lawfully enter it for the purpose of leaving their baggage and receiving his fare."

The case most nearly in support of the plaintiff's contention of those we have seen is Barker v. Midland R. Co. 18 C. B. 46, where

The case at bar differs from Barker v. Midland R. Co., supra, in this: that here the backney driver is not plaintiff, seeking to recover damages for the revocat on of a license to go upon the wharf, or for a breach of duty to another, but the defendant against an alleged trespass, who relied upon his right as servant of the other to justify his being there. We think the justification is sufficient. It is substantially given by the terms of the lease to the steamboat company. This does not deprive the owner of the general control of his wharf, nor interfere with his reasonable rules for its management. It simply secures to a passenger the common privilege of a passenger, and enables the backney driver to shield himself from an apparent violation of the rules only when he is acting, bona fide, as the servant of such passenger. This qualification guards the owner from an incursion of unlicensed drivers under a mere pretense of serving passengers, and also confines the right of soliciting business on his premises to those whom he may permit.

We give judgment for the defendant for his costs.

procure the other covenantees to release, the covenantor from his obligation, will not estop him from setting up an independent right belonging to him as a covenantee to enforce the covenant, if he has not ratified or profited by the agreement, although they may preclude him from exercising any right to enforce the covenant which he may claim through or on behalf of the decedent.

4. The fact that distributees who have received a portion of the estate of a decedent, who contracted to procure covenantees to release a covenantor from his obligation, may be called upon to contribute towards the damages which may be recovered for the breach of such contract, will not preclude them from exercising their right as covenantees to enforce the covenant, where their liability will in no event be co-extensive with their claim, and there is no means of determining what such liability will be. 5. The words “then surviving," in a will giving a woman power to dispose of an estate by will, and, in case of her failure to make a will, directing payment at her decease of one half the they taking by right of representation, and the other half to the heirs of such woman then surviving, they taking by right of representation, refer to the time of the death of the woman and give the half of the fund to the persons who at

fund to testator's heirs-at-law then surviving,

that time are testator's heirs-at-law.

(April 1, 1890.)

contract has been fully performed so that the insane party has had the full benefit thereof, and the circumstances are such that the parties cannot be put in statu quo, such a contract cannot be rescinded by the lunatic himself if he becomes of sound mind nor by his legal representatives.

Molton v. Camroux, 2 Exch. 489; Beavan v. McDonnell, 9 Exch. 309; Niell v. Morley, 9 Ves. Jr. 478; Loomis v. Spencer, 2 Paige, 153; New York Mut. L. Ins. Co. v. Hunt. 79 N. Y. 541; Johnson v. Stone, 35 Hun, 380; Riley v. Albany Sav. Bank, 36 Hun, 513; Young v. Stevens, 48 N. H. 133; Scanlan v. Cobb, 85 Ill. 296; Beals v. See, 10 Pa. 56; Lancaster Co. Nat. Bank v. Moore, 78 Pa. 407; Behrens v. McKenzie, 23 Iowa, 333; Abbott v. Creal, 56 Iowa, 175; Alexander v. Haskins, 68 Iowa, 73; Brodrib v. Brodrib, 56 Cal. 563; Wilder v. Weakley, 34 Ind. 181; Fay v. Burditt, 81 Ind. 435; Physio Medical College v. Wilkinson, 6 West. Rep. 585, 108 Ind. 314; Hopson v. Boyd, 6 B. Mon. 296; Rusk v. Fenton, 14 Bush, 490; Gribben v. Maxwell, 34 Kan. 8; Shoulters v. Allen, 51 Mich. 529; Chew v. Baltimore Bank, 14 Md. 299; Yauger v. Skinner, 14 N. J. Eq. 389; Eaton v. Eaton, 37 N. J. L. 108; Matthiessen v. McMahon, 38 N. J. L. 536; Carr v. Holliday, 5 Ired. Eq. (N.C.) 167; Riggan v. Green, 80 N. C. 236; Encking v. Simmons, 28 Wis. 272; Lincoln v. Buckmaster, 32 Vt. 652.

The administratrix ratified the release, and

for Middlesex County (Holmes, J.) for the opinion of the full court of a suit brought to compel the specific performance of an agreement not to dispose of certain property by will. Decree in favor of two plaintiffs and against the others.

The facts sufficiently appear in the opinion. Messrs. Robert M. Morse, Jr., Thomas H. Armstrong and William E. Jewell, for plaintiffs:

The evidence as to the receipt of the money by plaintiffs was not sufficient to create an estoppel.

See Andrews v. Lyon, 11 Allen, 349; Howard v. Hudson, 2 El. & Bl. 110; Pickard v. Sears, 6 Ad. & El. 469; Freeman v. Cooke, 2 Exch. 663; Turner v. Coffin, 12 Allen, 401; Carroll v. Manchester & L. R. Co. 111 Mass. 1: Tyler v. Odd Fellows Mut. Relief Asso. 5 New Eng. Rep. 191, 145 Mass. 134; Audenried v. Betteley, 5 Allen, 382; Plummer v. Lord, 9 Allen, 455; Langdon v. Doud, 10 Allen, 433; Peaslee v. Peaslee, 6 New Eng. Rep. 571, 147 Mass. 171; Plymouth v. Wareham, 126 Mass. 475; Hanrahan v. O'Reilly, 102 Mass. 201; Brigham v. Fayerweather, 3 New Eng. Rep. 759, 144 Mass.

48.

The administrators of an insane intestate cannot ratify a contract made by him, although the other party cannot be restored to the same position as before.

Norton v. Norton, 5 Cush. 524; Valpy v. Rea, 130 Mass. 384; Brigham v. Fayerweather, supra; Molton v. Camroux, 2 Exch. 487.

Mr. Samuel Hoar, for defendant: When a person who is non compos mentis, but apparently of sound mind, enters into a contract that is fair and reasonable, with a person who is ignorant of his incapacity and who takes no advantage of his infirmity, and the

ing.

Allis v. Billings, 6 Met. 415; Arnold v. Richmond Iron Works, 1 Gray, 434.

Abigail W. Smith, took no interest in the property, under the provisions of the will because she was not an "heir-at-law then surviving;" that is, living at the time of the death of Caroline A. Wood.

Denny v. Kettle, 135 Mass. 138: Coveny v. McLaughlin, 2 L. R. A. 448, 148 Mass. 576.

Hence the children of Abigail W. Smith, the plaintiffs, Mrs. Moor and Charles W. Smith, took no interest in the property of Caleb Wood by descent or devise from their mother, Mrs. Smith, and they took no interest in the property under the provisions of the will; because they were not "heirs-at-law" of said Caleb Wood.

Abbott v. Bradstreet, 3 Allen, 587; Dove v. Torr, 128 Mass. 38: Whall v. Converse, 5 New Eng. Rep. 823, 146 Mass. 345.

C. Allen, J., delivered the opinion of the court:

In August, 1877, Caleb Wood died childless, leaving a widow, Caroline A. Wood, and a will wherein he devised the residue of his estate to a trustee, in trust, to invest the same and pay over to her such sums or parts thereof as she might from time to time desire, and upon her decease to dispose of the trust fund then rema ning as she might by her will direct; and in case she should fail to make a will, then to pay at her decease one half of said trust fund to his beirs-at-law then surviving, they taking by right of representation, and one half to the heirs-at-law of his wife then surviving, they taking by right of representation.

His heirs-at-law at the time of his death [besides his widow, who was a statutory heir]

As some of the heirs-at-law of the testator had been thinking of contesting the probate of the will, his widow on the 24th of September, 1877, entered into an agreement under seal with the heirs, wherein she covenanted that within two months from the probate of the will she would pay over to the said Abigail W. Smith the sum of $5,000, and "that I will not make any testamentary disposition of the trust fund created under said will and remaining at my decease, that shall prevent one half of the said trust fund remaining at my decease from descending to the said heirs or their legal representatives exactly as it would descend to said heirs by the terms of said will, should I make no will, and that I will do no act which will prevent one half of such trust fund as shall remain in the bands of the trustee at my decease from going to the said heirs.'

The will was accordingly proved and allowed, and the $5,000 duly paid to Mrs Smith. It is conceded that this agreement by its terms did not have the effect to prevent Mrs. Wood from calling upon the trustee to pay to her the whole of the trust property in her life time, and that if the property had been thus paid over to her in pursuance of such a request it would have become her own, and that she might have disposed of it as she pleased. The agreement merely precluded her from making a testamentary disposition of the trust fund.

On the 10th of April, 1879, Charles Wood, the testator's brother, entered into an agreement under seal with the testator's widow, reciting the above-mentioned agreement, and that she was dissatisfied there with and claimed it to be illegal; wherefore, in consideration of $7,000 paid to him by her, "he does thereby cancel, annul and forever discharge and release said contract, and he covenants and agrees with her and her heirs and executors to protect her from said contract, and that no claim against her or her estate shall be made under the same by any person, and that no objection shall be made on account of said contract to any will she had made or may make. And he further covenants that he will procure from the heirs of Caleb Wood named in said coutract a release to said Caroline of said contract and all rights under the same." The former agreement was accordingly surrendered to her by Charles Wood, in whose possession it seems to have been, and was canceled.

On the 16th of December, 1886, Mrs. Wood died, leaving a will, wherein she disposed of all of the property in the hands of the trustee, which then amounted to about $260,000, away from the heirs of her husband. Charles Wood had already died December 11, 1884, intestate, childless, unmarried, having procured formal releases from three only out of four of Eliphalet Wood's children, dated February 2, 1880. Mrs. Smith died before the death of Charles Wood, leaving two adult children.

The four children of Eliphalet, the three children of Lyman, and the two children of Mrs. Smith [these all being also the heirs at law of Charles Wood], now bring this bill in equity seeking to enforce the agreement of

the release and agreement given by Charles Wood, the formal releases given by three of Eliphalet's children, the acceptance by others of the plaintiffs of the money paid by Mrs. Wood for the release and agreement by Charles, under circumstances constituting an estoppel or an accord and satisfaction, and the death of Mrs. Smith before that of Mrs. Wood, which it is contended had the effect to cut off any claim on the part of her two children. The plaintiffs' replication alleges that the release of Charles Wood was given when he was of unsound mind, and this question was submitted to a jury, who disagreed.

As to the three children of Eliphalet who signed formal releases to Mrs. Wood, it is conceded that no claim can now be maintained in their behalf, and that they are to be treated as out of the case.

As to the fourth child of Eliphalet, Mrs. Minor, and the three children of Lyman Wood, their claim is cut off by their acceptance of $1,000 each, as an accord and satisfaction. It is conceded that each one of them received from the administrators of the estate of Charles Wood a sum sufficient, when taken with certain payments made to Lyman's three children, by Charles Wood himself in his lifetime, to make up $1,000 with interest from the time when Mrs. Wood paid the $7,000 to Charles Wood. The testimony and circumstances show clearly that they received the sums, not as gifts from Mrs Wood, but on a consideration connected with the compromise agreement which she had given with reference to the allowance of her husband's will. She had already paid all the money called for by that agreement, namely the $5,000, to Mrs. Smith, and after having done so she had paid $7,000 more to Charles of which he had in his lifetime paid certain portions to some of these children. A question had arisen early in respect to the purpose of Mrs. Wood in paying this money, and her letter to Mrs. Minor, dated August 9, 1879, showing that it was intended for the children of Eliphalet and Lyman, had been exhibited to several if not to all of those children, immediately after the death of Charles; all of these children were in consultation together in Worcester in December, 1884, with a common purpose to get this money. Three of them, being children of Eliphalet, had signed formal releases to Mrs. Wood in the lifetime of Charles. They all demanded and obtained from the administrators of Charles the payment of such sums as made up the sum of $1,000 to each, with interest. The suggestion in the argument that they took it as a gift from Mrs. Wood cannot be entertained for a moment. Without going minutely into the 'details of the testimony, we are satisfied from reading it that they all then knew of the agreement which she had made, and knew that Charles Wood had received this money from her upon some bargain or understanding referring to her agreement, and that they either knew all the particulars of that bargain or at any rate had all the information in respect to it which they cared to have. If any particulars were wanting, it was because they shut their

eyes and turned away their ears. Under these circumstances, their taking steps to enforce the payment of the money to them by Charles Wood's administrators and their acceptance of it constitute a virtual adoption by them of the bargain upon which he obtained the money from her, so far at least as to preclude them from enforcing her original agreement. It was equivalent to saying, "Whatever he promised as to our giving up that agreement, we adopt it." Kelley v. Newburyport & A. Horse R. Co. 141 Mass. 496, 499, 2 New Eng. Rep. 383. It remains to be considered whether the bill can be maintained in behalf of the two children of Mrs. Smith; one of whom is Mrs. Moor, who is also one of the administrators of the estate of Charles Wood, and the other is Charles W. Smith.

In respect to Mrs. Moor, it is contended that her claim is cut off by reason of her transactions above referred to in which she, as an administrator of the estate of Charles Wood, took part. It is contended, and the justice before whom the case was heard found as a fact [subject, however, to the question of law whether administrators of an insane intestate could so ratify], that the administrators of Charles Wood have ratified the release by him to Mrs. Wood, and the transaction in relation to it. This ratification is certainly so far effectual as to cut off any claim by the adminis trators or representatives of Charles Wood, under the agreement of Mrs. Wood. Charles Wood executed a formal release of said contract, and if this was invalid by reason of bis insanity the ratification makes it good to this extent at least. The claim of Mrs. Moor, however, does not rest upon her rights as an heir of Charles Wood, but upon her rights as daughter of Abigail W. Smith, who was a sister of the testator.

It is not easy to see in what way her individual claim under Mrs. Wood's agreement is affected by her acts as administratrix of Charles Wood. Let it be assumed that her ratification, as administratrix, of the release and covenants of Charles Wood to Mrs. Wood was full and valid, both in fact and in law; the effect of this is only to give to that instrument the same force which it would have had if its validity had never been questioned. It makes the instrument valid and effectual as an instrument signed and sealed by Charles Wood; but it does not affect the rights of Mrs. Moor as an individual except so far as she might claim under Charles Wood. In executing that instrument, Charles Wood did not act nor assume to act as the agent of Mrs. Smith, the mother of Mrs. Moor; but in consideration of $7,000 paid to him he covenanted with Mrs. Wood that he would procure from the heirs of Caleb Wood a release to her of her contract. If that instrument was valid at the time of its execution, or if it was made valid by being ratified afterwards, it did not cut off the claim of any heir of Caleb Wood under Mrs. Wood's agreement, except of Charles Wood himself, unless something further should be done by which their rights would be affected. As to three children of Eliphalet, something further was done, and they executed a formal release, by which their claim is cut off. As to the fourth child of Eliphalet and the three children of Lyman,

something further was done, and their claim is cut off by their acceptance of money as shown above. But as to Mrs. Moor, she has received no money, and has signed no release, and her acts in a representative capacity as administratrix of Charles Wood may affect his estate and the rights of those claiming under him, but do not affect her rights as daughter of Mrs. Smith, unless she was called upon, by reason of what was going on, to make it known to Mrs. Wood that she as an individual did not intend to release any claim she might have under Mrs. Wood's compromise agreement. If she had a valid right to hold Mrs. Wood to that agreement, that right still continues, unless she is estopped to enforce it. The justice before whom the cause was heard found that she was thus estopped by her conduct in paying over the money, as administratrix of Charles Wood, and he mentions no other ground on which the estoppel rests. We are not able to adopt this conclusion. If Charles Wood himself had paid over the $7,000 to the children of Eliphalet and Lyman, and had taken their receipts, and if Mrs. Moor had stood by and assented to such an application of the money, the necessary elements of an estoppel upon her would still be wanting. Mrs. Wood did not intend that any of the money should go to Mrs. Smith. Charles Wood in his lifetime paid nothing to her, or to her children. It must be assumed that Mrs. Wood knew that she was bound to Mrs Smith, as well as to the other heirs of her husband, and that a release from her was to be procured by Charles Wood. Now if Mrs. Moor had done anything with a design to mislead Mrs. Wood into the belief that she gave up any claim she might have as a daughter of Mrs. Smith, and if Mrs. Wood had in fact been misled to her injury and had acted or omitted to act in consequence thereof, then Mrs. Moor would be estopped. But we do not find these essential elements of an estoppel in what Mrs. Moor did as administratrix of Charles Wood. When Charles Wood took Mrs. Wood's money, and executed his release and agreement, and surrendered her own agreement to her, Mrs. Wood may have jumped to the conclusion that everything had been done that needed to be done, in order to enable her to dispose of the trust property without a violation of her agreement. But we find nothing to show that she was misled into this conclusion by any act of Mrs. Moor which was intended to produce that result. Mrs. Moor did nothing actively, so far as appears, except to pay over the money which she held as administratrix of Charles Wood. She did nothing passively except to omit to make it known to Mrs. Wood that she did not intend to give up any claim which she herself might have as an individual. Was she called upon to do this? Mrs. Wood apparently was not there at the time the money was paid over by Mrs. Moor, or the consultations had.

It does not appear even that Mrs. Moor was afterwards in any communication with Mrs. Wood. It rests upon the party setting up an estoppel to show the grounds on which it rests. The circumstances disclosed in the report, and in that portion of the testimony which is laid before us, fall short of creating an estoppel upon Mrs. Moor. Tyler v. Odd Fellows Mut. Relief Asso. 145 Mass. 134, 138, 5 New Eng. Rep.