conveyance directly or indirectly from the Trustees of the Department Store Trust created by Declaration of Trust recorded with the Suffolk Registry of Deeds at Book 2924, Page 274, covering the real estate and buildings now or heretofore held by them bounded by Washington Street, Hayward Place, Harrison Avenue and Essex Street, subject to the mortgages and encumbrances thereon, and in return for said conveyance and for the obligations undertaken by the said contractors Max Mitchell and others to the John Hancock Mutual Life Insurance Company and the President and Fellows of Harvard College, mortgagees as aforesaid, for the benefit of this Trust, by said contract, the Trustees shall assume the obligations contemplated to be performed by them in said contract and shall issue to the order of said Max Mitchell 25,000 cumulative preferred shares of a par value of $100 each, and 25,000 ordinary shares of no par value, both of said classes of shares to be issued as fully paid and non-assessable; and each of said preferred shares shall (subject to the obligations of said contract) be entitled out of any income as above described to 8 per cent (or such lesser rate as said contractor Max Mitchell shall before issue determine) per share annually, payable in equal parts semiannually on February 1st and August 1st cumulatively, and to preference to the extent of their par value and any accrued and unpaid dividends over the ordinary shares in distribution of capital, and the holders of ordinary shares shall be entitled to receive all distributions of income and capital above that required for the preferred shares as aforesaid. Additional issues for cash or otherwise may be made and this plan may be modified in any manner, by vote of the Trustees without amendment of this Declaration of Trust.

"Article XXX. Plan of Operation - A portion of said premises shall be altered into a theatre and leased for thirty (30) years to a separate corporation or trust in which the shareholders in this Trust may be interested and at a rental of One Hundred Twenty-five Thousand Dollars ($125,000) a year, the tenant to provide its own heat and inside repairs but to pay nothing toward interest, taxes or insurance on the building or theatre. This plan may be modified in any

manner by vote of the Trustees without an amendment of this Declaration of Trust, but any modification shall be subject to the rights of the John Hancock Mutual Life Insurance Company and the President and Fellows of Harvard College under said contract of Max Mitchell and others with them of even date herewith."

The subscribers did subscribe for $1,900,000 as the cash capital of the trust. But out of $1,193,116.12, the total amount contributed in discharge of all their obligations, they paid directly to the city of Boston and to the mortgagees amounts aggregating $596,789.78, leaving a balance of $706,883.88 due on their subscriptions. The result as alleged in the bill and found by the master was that the alterations, although begun, never were completed, and the anticipated income was not realized. The creditors of the trust, who furnished labor and materials until further construction had to be suspended and never was resumed, remain unpaid because the plaintiffs have no funds to meet the indebtedness of the trust.

It is shown by the report, that the mortgagees in July, 1921, took possession of the premises for non-payment of interest due April 1, 1921, and foreclosed by sale September 29, 1921, when the property brought $3,500,000, the principal of the mortgages. While certain work had been done in beginning alterations for commercial purposes, the only new construction called for by the erection of the theatre was laying the foundations for the partition walls. A large part of the interior had been removed, but the reconstruction had scarcely begun.'

The mortgagees with the consent of all parties completed certain unfinished work so that two floors of the building could be utilized and leased. They contended before the master to be entitled to unpaid interest to September 29, 1921, with the expenses of foreclosure, the cost of work necessary to make the floors tenantable, the expenses incurred in the care of the building while the mortgagees were in possession before the foreclosure sale, and the amount paid architects representing the mortgagees which the subscribers agreed in the extension agreement to pay, a total

amount of $260,382.92, which the mortgagees conceded might be reduced if they were paid $91,264.12 under a bond given by a security company covering the second item of their claim. We do not decide whether the subscribers under the extension agreement are liable to the mortgagees for the whole or any part of this claim. It is plain that the trustees are not responsible, and in the absence of a cross bill the question whether the mortgagees can reach the assets of the trust in satisfaction of their demands or compel the co-defendants to pay cannot be determined in the present suit. Forbes v. Thorpe, 209 Mass. 570, 583. Pickard v. Clancy, 225 Mass. 89, 95.

The plaintiffs ask that the amount remaining unpaid on the subscriptions of the defendants Broomfield, Prager and Mitchell may be ascertained and ordered paid to them as trustees. The defendant Mitchell, although filing an answer and appearing once without counsel at the hearings before the master, did not appear at the argument and has not filed a brief. But Broomfield and Prager contend that, the subscribers having covenanted solely with the mortgagees in the extension agreement to which the trustees were not parties, the covenants entered into by them with the mortgagees cannot be enforced by the trustees and therefore the bill must be dismissed. The mortgagees however covenanted only to extend the mortgages for twenty years if the defendants performed their covenants. It needs no discussion to show that, if this position is well grounded, the creditors of the trust must go unpaid for labor and materials furnished under contracts with the trustees which were authorized by the subscribers. It may be conceded, as all the defendants contend, that only the parties to the extension agreement, which was under seal, can maintain an action at law or a suit in equity thereon for non-performance by the individual defendants who were parties of the second part. Exchange Bank of St. Louis v. Rice, 107 Mass. 37. Borden v. Boardman, 157 Mass. 410. New England Structural Co. v. James Russell Boiler Works, 231 Mass. 275. In re Empress Engineering Co. 16 Ch. D. 125, 129, 130. But the intention of the parties to the extension agreement as to what they in

tended to accomplish and the mode or instrumentality by which it was to be effectuated is manifest. A trust was to be created under the title of the Washington-Essex Building Trustees, and the persons who were to act as trustees were named. The declaration of trust, to which the mortgagees were not to be parties, was to come into potential existence only through the positive and original action of the subscribers, who, when they became certificate holders, are expressly designated in articles three, four and eighteen, which provide for the distribution of principal and income, as the "cestuis que trust," to whom certificates when they paid for shares were to be issued. The subscribers could, and did covenant with the mortgagees, that a trust should be created, but no provisions are found in the extension agreement prescribing the form of organization of the trust, or the powers of the trustees, or the reciprocal obligations to the trustees of the subscribers who became the beneficiaries under the trust.

The general powers of the trustees are shown by article eight:

"The Trustees shall have no power to bind the Trustees or any of them or the trust assets unless it be by instrument in writing signed in the manner hereinafter set forth or as from time to time determined by recorded vote of the Trustees and sealed with the seal of the Trustees and executed in accordance with a special or standing vote recorded on the books of the Trustees, and by documents so executed the Trustees shall have the power to take, receive, collect, acquire, buy, sell, borrow, lend, mortgage, pledge, encumber, lease, release, contract for or concerning, compromise concerning, or otherwise deal with or concerning any property of or for the trust, or in any way connected with its interests as the sole and absolute owners thereof at law and in equity and with as full powers as if such absolute owners at law and in equity and without leave or intervention of any court, and in whole or in parcels and at public auctions or at private sales, or otherwise, and to make partition with co-owners or joint owners outside the trust having any interest in any properties in which the Trustees are interested

and to make such partition either by sale or by set off or by agreement, or otherwise, and to make such leases even if the term thereof extend beyond the duration of the trust, and to make distributions in money or in property of the trust, and for such purposes to determine the value of such properties, and when anything is dependent upon the value of any property, and/or upon the existence of any fact to determine such value and/or such fact, and the certificate of such Trustees to such determination shall be conclusive in favor of anyone acting thereon in good faith, and the Trustees shall not be limited to investments which are lawful for Trustees."

The reference to the extension agreement in article twentynine is coupled and used with the words," the Trustees shall assume the obligations contemplated to be performed by them in said contract . . . and shall issue" certificates to Mitchell of a certain number of cumulative preferred shares and of common shares of no par value, "fully paid and nonassessable," which do not appear in form or substance in the extension agreement, where no provision is found that the trust to be organized should issue certificates in which the subscribers as cestuis were to be shareholders, and who were to receive certificates of their respective holdings.

The provisions of the extension agreement defining the obligations of the subscribers to the mortgagees as previously stated are adopted by reference in the declaration of trust, not as covenants made by the subscribers with the mortgagees, but as if the declaration of trust by appropriate language had for the first time specifically enumerated all of them as forming part of the terms and obligations under the trust which on their part were to be performed. Lipsky v. Heller, 199 Mass. 310. Abbott v. Frazier, 240 Mass. 586, 593. The mortgagees did not bind themselves, or authorize the trustees to bind them, to pay any of the expenditures which must be made before an extension of the mortgages was to be given, and the instruments of extension, which were to be executed, sealed and acknowledged, were of necessity to be delivered not to the subscribers, but to the trust which held title to the equity of redemption. A covenant to create a