(196 Mass. 592)

KENNEDY v. WELCH.

(Supreme Judicial Court of Massachusetts. Berkshire. Dec. 31, 1907.)

1. APPEAL-BILL OF EXCEPTIONS-QUESTIONS PRESENTED.

bill of exceptions presents for decision only questions of law.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3437, 3438.]

2. SAME-RECORD-QUESTIONS PRESENTED.

Where the entire evidence is not reported, the master's conclusions must be treated as final, and are not open to review.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3941.]

3. EQUITY-MASTERS AND COMMISSIONERS

HEARING.

It is competent for the presiding judge, in reaching a decision, to draw from the facts reported by a master such inferences of fact as they warrant and which he deems material. 4. INTOXICATING Liquors LICENSE TO SELLTRANSFER.

Under St. 1889, p. 1040, c. 344, providing that permission for the transfer from one location to another of a license to sell intoxicating liquor shall be granted by licensing boards only to the original licensee, a license of the fifth class, granted under Pub. St. c. 100, § 10, could not be lawfully transferred by the licensee to a purchaser, even with the consent of the license commissioners; the privilege conferred being personal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, § 108.]

5. BILLS AND NOTES CONSIDERATION.

Where the purchase price of personal property, for which a note was given, included the illegal transfer of a liquor license held by the seller, for the purpose of enabling the buyer as a part of the transaction to continue selling liquor on the premises where the property sold was situated, and the valuation placed on the license was inseparable from the purchase price, the consideration was entire, and the note, being tainted with illegality, was void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 225.]

8. SAME.

new

The discontinuance of a suit on a void note given for the purchase price of personal property is not a good consideration for a note by the maker, where the illegal element which avoided the first note entered also into the new note.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 203.]

Exceptions from Superior Court, Berkshire County; John C. Crosby, Judge.

Bill by David Kennedy against Owen W. Welch. To an order for a decree, defendant excepts. Exceptions overruled.

BRALEY, J. Instead of adopting the usual equity practice by taking an appeal from a final decree, under which all questions, not only of law, but of fact, appearing in the record would have been open to review, the plaintiff after an order for such decree has resorted to a bill of exceptions, which presents for decision only rulings of law. See Ex parte Story, 12 Pet. (U. S.) 343, 9 L. Ed. 1108; Dorr v. Tremont National Bank, 128 Mass. 349; O'Brien v. Keefe, 175 Mass. 274; Prescott v. Prescott, 175 Mass. 64, 55 N. E. 805; McCusker v. Geiger, 195 Mass. 46, 80 N. E. 648. We first consider the exceptions to the report. If the master, who under the rule was directed to find and report the facts, with so much of the evidence as either party desired, failed to make his report sufficiently full, or had overlooked important portions of the evidence, it was open to the defendant to ask for a recommittal, either for the finding of additional facts, or the modification of those already found. But a motion to recommit having been denied, an attempt was then made to accomplish the same object by exceptions which related solely to questions of facts. The entire evidence, however, not having been reported the master's conclusions must be treated as final, and were not open to review. East Tennessee Land Co. v. Leeson, 183 Mass. 37, 66 N. E. 427; Hutchinson v. Nay, 183 Mass. 355, 67 N. E. 601; O'Brien v. Murphy, 189 Mass. 353, 75 N. E. 700; Hoshor-Platt Co. v. Miller, 190 Mass. 285, 76 N. E. 650; Walker v. Whittemore, 112 Mass. 187. These exceptions having been properly overruled, it was competent for the presiding judge in reaching his de cision to draw from the facts reported, such inferences of fact as they would warrant, and which he deemed material. Squire v. Lincoln, 137 Mass. 399.

The important question upon which the decision depends is whether the second promissory note, secured by a mortgage of the plaintiff's real estate, the foreclosure of which the bill is brought to enjoin, is valid. By Pub. St. c. 100, § 9, as amended by St. 1891, p. 948, c. 369, in force when the first note was given, a license of the fifth class could not lawfully be transferred by the licensee to a purchaser even with the consent of the license commissioners. St. 1889, p. 1040, c. 344. The privilege conferred is personal, and can be exercised only by the licensee. Com. v. Lavery, 188 Mass. 13, 14, 73 N. E. 884. The master finds that the purchase price, for which this note was given, included the transfer of a license of this class then held by the defendant, for the purpose and with the design on his part of enabling the vendees as a part of the transaction to continue the business of selling in

toxicating liquors on the leased premises, where the personal property sold was situated, or with which it was connected. It is evident from these findings, as well as from those under the defendant's fourth request, that the transfer of the license was not only held out as an inducement to make the purchase, but whatever value it had entered into the sale, which was fully executed. The master having further determined, that the valuation placed upon the license was inseparable from the purchase price, the consideration was entire, and the note being tainted with illegality, was absolutely void and unenforceable in the suit brought against the plaintiff, who as between himself and the defendant was a joint maker. Hubbell v. Flint, 13 Gray, 277; Brigham v. Porter, 14 Gray, 522; Bishop v. Palmer, 146 Mass. 469, 16 N. E. 299, 4 Am. St. Rep. 339; Lamb v. McIntyre, 183 Mass. 367, 67 N. E. 320. But if the first note was thus rendered invalid, it is said by the defendant, that the second rests upon a new consideration. The consideration for the mortgage note is expressly found to have been "the release and discharge of the plaintiff from all liability on the original note and the suit brought thereon." This finding excludes whatever advantage, if any, the defendant might have derived from other possible elements of gain to himself, or of benefit to the plaintiff, disclosed by the report, and the only question is, whether the ruling that the last note became subject to the same infirmity was wrong. It would be a perversion of the explicit statements in the report to hold, that the defendant was ignorant of the purpose of the purchase, in which he participated, and he must be presumed to have known, that at the time the writ was sued the original claim was not well founded, because of his attempt to evade the statute. If under a promise by the plaintiff to pay, the defendant had foreborne to sue, the forbearance would not have furnished a sufficient consideration to support the promise. It could not have been upheld by the old obligation, as that was void for illegality; nor by the new, for by the repetition of a void promise the creditor suffers no detriment, and the promisor receives no benefit. Holden v. Cosgrove, 12 Gray, 216; Howe v. Litchfield, 3 Allen, 443; Palfrey v. Portland, Saco & Portmouth Railroad Co., 4 Allen, 55. See Dunham v. Johnson, 135 Mass. 316.

The defendant, however, insists that, suit having been brought, its discontinuance at the plaintiff's request furnished an independent consideration. Barlow v. Ocean Ins. Co., 4 Metc. 270; Dunbar v. Dunbar, 180 Mass. 170, 62 N. E. 248, 94 Am. St. Rep. 623. But there is a clear distinction between the adjustment of a pending suit to enforce a liability the outcome of which may be reasonably doubtful, and a suit brought upon an illegal demand, which the courts

will not lend their aid to enforce. See White v. Buss, 3 Cush. 448; Cardoze v. Swift, 113 Mass. 250; Scollans v. Flynn, 120 Mass. 271. In the first instance, the consideration, which may be and often is inadequate, is supported by the compromise, even if the original claim upon trial might have been found invalid. Prout v. Pittsfield Fire District, 154 Mass. 450, 453, 28 N. E. 679, and cases cited; Miles v. New Zealand, Alford Estate Co., 32 Ch. Div. 266, 283, 284. In the second instance, there is no existing claim which the law will recognize as sufficient to raise a doubt in favor of the creditor, and the essential basis for a settlement is absent. Murphy v. Rogers, 151 Mass. 118, 24 N. E. 35; Bride v. Clark, 161 Mass. 130, 36 N. E. 745; Pitkin v. Noyes, 48 N. H. 294, 97 Am. Dec. 615, 2 Am. Rep. 218; Feeter v. Webber, 78 N. Y. 334. Besides, if it were held that the discontinuance of the suit was enough to furnish a distinct and separate benefit, the consideration was indivisible, and as that which is unlawful cannot be separated, or apportioned, the whole fails. Loomis v. Newhall, 15 Pick. 159; Perkins v. Cummings, 2 Gray, 258; Bishop v. Palmer, 146 Mass. 469, 474, 16 N. E. 299, 4 Am. St. Rep. 339. Whichever way is taken, the illegal element which avoided the first note having entered also into the mortgage note, the plaintiff cannot be held to the performance of his promise.

We are asked by the defendant, if this conclusion is reached, to consider and adjust between the parties, the measure and extent. of the relief to be granted. But no error of law being found either in the refusals to rule as requested, or in the rulings given, the order must be:

A grantor conveyed property by deed without covenants, habendum to the grantee and her heirs and assigns, "in trust for myself during the term of my natural life, and upon and after my death in trust for the benefit of the said grantee, and her heirs and assigns, forever. It appeared that the grantor was a widow about 75 years old, who had been paralyzed for about eight years, though her mind was unimpaired; that the grantee, one of her two daughters, had been living with her during the period of her affliction, nursing and caring for her, and had previously managed the house and relieved her of all care; that the grantor's other daughter had never shown any kindness to her mother for many years; that the grantor and her two daughters, owning property valued at about $63,000, had given a power of attorney to one who was to care for the property and account to them, but who had refused to render itemized accounts and to deliver to the grantor papers belonging to her, and had caused much trouble and annoyance; and that the grantor had given the deed to be relieved of the care and worry involved in managing the prop

In an action by the grantee in a conveyance of certain property from one of the defendants, in trust for that defendant during her life, to recover from another defendant money belonging to the trust fund, the defendant grantor and cestui que trust denied the trust deed, and verdict was returned in her favor for the money sued for, which in the meantime had been deposited in court by the other defendant. Held that, though the trust was valid, there should be judgment on the verdict, since the defendant cestui que trust was entitled to the money, and it would be useless to require payment to the trustee, who would in turn be required to repay it.

Report from Superior Court, Bristol County; Lloyd E. White, Judge.

Action by Sarah C. Lima against Charles C. Cook and Bridget Campbell. On report from the superior court. Judgment for defendant on the verdict.

This is an action of contract. The writ is dated August 24, 1906. The amended declaration alleged that the defendant Bridget Campbell, Sarah C. Lima, and another owned certain property jointly; that on April 10, 1905, they executed a power of attorney to the defendant Charles C. Cook, whereby Cook was to take charge of the property, collect the rents, and render an account to each of the parties every month for their respective shares, amounting to $80 per month; that on December 2, 1905, Bridget Campbell by deed conveyed to plaintiff all her interest in the property, to hold it in trust for the said Bridget Campbell during her natural life, and upon her death plaintiff to hold the property in trust for the benefit of herself, etc.; that defendant Cook was notified of the conveyance and trust on or about June 6, 1906; that a demand was made by plaintiff upon the defendant Cook in August for the income to which Bridget Campbell was entitled for the months of July and August; that defendant neglects and refuses to pay the same; and that defendant Cook owed plaintiff, as trustee for the said Bridget Campbell, the sum of $160; that the defendant Charles C. Cook deposited in court the amount claimed in the declaration and stated under the statutes; that the same was claimed by Bridget Campbell, through her conservator, Thomas R. Burrill. The defendant Bridget Campbell, by her duly appointed conservator, answered and denied the allegations of plaintiff's writ and declaration, and denied especially the signing of the deed and the signature thereto, and alleged that if she signed the deed it was procured by duress,

fraud, and undue influence of the plaintiff. The cause came on to be heard before a jury, and the plaintiff made the following offer of proof:

"One John Campbell, of Fall River, died March 2, 1889, leaving a widow, Bridget Campbell, now about 77 years old, living in Fall River, and two daughters, Sarah Campbell Lima the plaintiff, and Margaret A. O'Connor, both of said Fall River. Said John Campbell left a will by which he divided the estate equally among the said widow and two daughters, giving one-third thereof to each. The estate consisted mostly of rentable real estate now valued at about $63,000. The income coming to each is about $80 a month. On April 10, 1905, said Bridget Campbell, Sarah Campbell Lima, and Margaret A. O'Connor gave a joint and irrevocable power of attorney for five years to the defendant Charles C. Cook. About nine years ago the said Bridget Campbell suffered a paralytic shock, which though it did not affect her mentally, leaving her mind entirely unimpaired, disabled her physically, so that she has for several years been unable to walk without a cane and for the last two years has been hardly able to get about at all. Since her father's death Margaret has never shown any kindness to her mother. All these years she tried to get all she could out of her in the way of money and property. The plaintiff on the other hand has been living with her mother before and since her father's death. While her mother was enjoying health the plaintiff managed the house and relieved her of all care. During her sickness for the last eight years the plaintiff has nursed and cared for her. In March, 1905, the plaintiff married one Anthony J. T. Lima, a dentist, and since that time both the plaintiff and her husband have made every effort for the comfort of said Bridget. Shortly after the said power of attorney was given to the defendant Cook, the latter caused much annoyance and trouble to the plaintiff and her mother. He had a bank book in his possession which belonged to the said Bridget and which he refused to give up to her until suit was pressed. He had a mortgage deed in his custody belonging to the said Bridget which he refused to give up until suit was brought. Said deed was given upon the very morning of the trial. In the month of October or November of 1905 request was repeatedly made of the defendant Cook to render an itemized account of his doings in the estate under his power of attorney, and to disclose what insurance was carried upon the estate and where and how much was paid. This the defendant Cook refused to do until suit was brought and the Supreme Court decided that he must grant the prayer of his principals. To be relieved of the care and worry involved in the management of her property, said Bridget Campbell, on the 2d day of December, 1905, made a deed to

the plaintiff of all her share of the real estate coming to her under her husband's will. The consideration of the said deed was the affection which the said Bridget had for the plaintiff, and the kindness of the plaintiff and her husband towards her, and the promise by the plaintiff that she would care for and support her for life and use the estate for her benefit so long as she lived and the plaintiff should have it at her death. On the 13th day of July, 1906, the probate court appointed Thomas R. Burrill a conservator to the said Bridget Campbell. On or about the 1st day of August, 1906, prior to the bringing of this suit, the plaintiff demanded of the defendant Cook the income due to Bridget Campbell and which by said deed should be paid to plaintiff. The defendant Cook refused to pay the same on the ground that the claimant Bridget Campbell, by her conservator, Burrill, directed the money should be paid to himself. The amount which the defendant Cook had in his hands at the time the demand was made is $160."

Thereupon at the request of the defendant the court directed a verdict pro forma for the defendant Campbell against the objections and exceptions of the plaintiff, and the jury returned a verdict for the defendant Bridget Campbell. At the request of the parties the case was reported to the Supreme Judicial Court.

The deed referred to is as follows: "Know all men by these presents, that I, Bridget Campbell, of Fall River, county of Bristol, and commonwealth of Massachusetts, in consideration of one dollar and other considerations, paid by Sarah Campbell Lima, of Fall River, in said county and state, the receipt whereof is hereby acknowledged, do hereby remise, release, and forever quitclaim unto the said Sarah Campbell Lima all my right, title and interest in the John Campbell estate wherever situated in the said city of Fall River; said right, title and interest having been acquired by me through the will of the late John Campbell, my late husband. Said estate comprises among other properties, land and buildings situated on Tenth and Pleasant streets, South Main and Spring streets, Columbia and Pearl streets, and Washington street, and lot on Holland street, all in Fall River. To have and to hold the granted premises, with all the privileges and appurtenances thereto belonging to the said Sarah Campbell Lima and her heirs and assigns, in trust for myself during the term of my natural life and upon and after my death in trust for the benefit of the said grantee and her heirs and assigns forever."

Properly signed and acknowledged.

Coughlin & Radovsky and Hugo A. Dubuque, for plaintiff. John W. Cummings and Charles R. Cummings, for defendant.

BRALEY, J. The deed in its recitals being sufficient to transfer the title, and give effect to the intention of the parties, any further consideration of the form of the conveyance, although without covenants either of seisen, or of the right to convey, or of warranty, becomes unnecessary. Hunt v. Hunt, 14 Pick. 374, 25 Am. Dec. 400; Kyle v. Kavanagh, 103 Mass. 356, 4 Am. Rep. 560; Cook v. Sawyer, 188 Mass. 163, 165, 74 N. E. 356. In limitation of the habendum, the grantor uses this language, "in trust for myself during the term of my natural life, and upon and after my death, in trust for the benefit of the said grantee, and her heirs and assigns forever." A possible construction of this clause would be, that the use was executed by the statute of uses, and she obtained a legal estate for life, with a remainder in fee to the grantee and her heirs. Richardson v. Stodder, 100 Mass. 528, 529; Carr v. Richardson, 157 Mass. 576, 577, 32 N. E. 958. But while the question is one of some nicety, by reason of the great subtilty in the distinctions which have arisen under the statute, the more natural construction under the circumstances attendant upon her advanced age, her family relations, and business differences with the codefendant, is, that the grant was upon a trust, or a use upon a use, which remained unexecuted. The plaintiff accordingly took the estate in fee, and in trust for the benefit of the grantor during her life. Packard v. Old Colony Railroad Co., 168 Mass. 92, 96, 46 N. E. 433; Dakin v. Savage, 172 Mass. 23, 27, 51 N. E. 186. It does not, however, follow that the verdict for the defendant was wrongly ordered. The equitable life tenant's share in the rents which had been collected had been deposited in court pending the litigation, and was subject to its order, and all that remained was to direct the payment of the fund to the beneficiary to whom alone it belonged. There being no active duty devolving upon the trustee during the life of the agreement with Cook, this payment properly could be made without her intervention. Under these conditions to direct the payment to be made to the plaintiff, who at once must pass the money over to the equitable owner would be an idle ceremony, which the law does not require. Underwood v. Boston Five Cents Savings Bank, 141 Mass. 305, 306, 4 N. E. 822.

Judgment for the defendant on the ver

dict.

DENCE.

In an action by an infant for injuries through being struck by a locomotive while crossing defendant's track, error in holding that the burden of proving that plaintiff was sui juris was on defendant was not prejudicial.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Leonard Simkoff, an infant, by guardian, against the Lehigh Valley Railroad Company. Judgment for plaintiff (103 N. Y. Supp. 1142), and defendant appeals. Affirmed.

Lyman M. Bass, for appellant. George H. Kennedy, for respondent.

GRAY, J. The plaintiff has recovered a verdict in damages for personal injuries, which, he alleged, were occasioned through the negligence of the defendant, and the judgment has been affirmed by the Appellate Division. The plaintiff was, at the time of his accident, an infant of over seven years of age. While crossing the tracks of the defendant, in the city of Buffalo, he was run down by a locomotive engine, and received the injuries of which he complains. According to the evidence on either side, the engine approached the street crossing at a rate of speed not to exceed three to four miles an hour. The plaintiff's claim was that his foot was caught in a gap in the planking of the sidewalk, upon which he was passing, where it met the rail of the track, and that, while helpless therefrom, the engineer, though he could see him, neglected to stop his engine. The case presented, mainly, a question of fact upon the evidence with respect to the way in which the accident occurred, and we might affirm the judgment, without any expression of opinion, were it not for the rulIng of the trial court upon a certain request made by the defendant. The plaintiff himself was not examined. His father testified that he had been "a bright, intelligent boy," who had, for two summers, attended school, and who was accustomed to pass over the

same way every few days for the past few years.

The trial judge, in his charge, left it to the was of jury to say whether the plaintiff "sufficient mental capacity by reason of his age to appreciate danger and exercise caution." Upon the conclusion of the main charge, the court was requested by the defendant, further, to charge "that the burden of proving that the plaintiff was unable to properly care for himself at the time of the accident is upon the plaintiff." The judge refused to charge as requested, holding, upon the authority of Costello v. Third Ave. Railroad Co., 161 N. Y. 317, 55 N. E. 897, that the burden was upon the defendant of establishing that an infant of that age was sui juris. In so ruling, I think the learned trial judge erred as to the general legal proposition. The opinion of this court in the Costello Case did not pass upon the question of the burden of proof in such cases. The rule has been more properly stated by this court in the opinion in the case of McGrell v. Buffalo Office Bldg. Co., 153 N. Y. 265, 47 N. E. 305. I am not aware that we have decided to the contrary. In that case Judge Martin, speaking for the court, said that, if the infant (in that case a girl of between nine and ten years of age) was "unable to properly care for herself under the circumstances, the burden of establishing that fact was upon the plaintiff." In Stone v. Dry Dock, E. B. & B. R. R. Co., 115 N. Y. 104, 21 N. E. 712, where the infant was seven years of age, the same rule was laid down. The establishment of the fact that an infant is non sui juris to the satisfaction of the jury, if considered material, is as much a part of the plaintiff's case as any other evidence is, upon which he relies to make out a case for a recovery. Some evidence should be given showing the extent of the child's capacity to care for himself, where, as here, he is left more or less to himself; that is, not in the care of a parent, or other guardian. degree of care to be reasonably expected in an infant of the plaintiff's age was a question of fact for the jury to determine under the circumstances and upon the evidence as to his capacity and intelligence. As it was observed in McGrell's Case, the plaintiff "was not of such tender years that it could be held, as matter of law, he was non sui juris."

The

While, therefore, the ruling of the trial court was erroneous, I do not think that the error was material, or prejudicial, to the defendant. The course, which the trial of the Issue took, made it of no importance whether the plaintiff was, at the time, sul juris or non sui juris. According to the evidence for the plaintiff, he was unable to withdraw his foot from the hole between the plank of the sidewalk and the rail, and the engine was at such a distance, and was proceeding at such a moderate rate of speed, as to have permitted the engineer to stop in time to