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trary to the provisions of this section shall be the same day under section 48, upon which forfeited to the commonwealth."

St. 1906, c. 421, as amended by St. 1910, c. 497, does not purport to repeal this section. It provides for the prosecution and punishment of persons and corporations merely transporting for hire spirituous or intoxicating liquors within the limits of a city or town where licenses are not granted unless they have received a permit issued by the board of mayor and aldermen or the selectmen of towns and signed by the licensing board. No provision for forfeiture is found. The trial and conviction of Moore on the first complaint appearing in the record we assume from the allegations to have been under this statute. The complaint charges no violation of section 48. The only issues under the agreed facts relating to the subsequent proceedings are whether on November 18, 1912, the claimant owned the liquors in question with the vessels, and whether on that day they were being illegally transported by Moore within the town of Athol where licenses of the first five classes were not granted. The jury having answered each issue in the affirmative, the claimant contends that the judgment of forfeiture thereupon ordered should be reversed. The claimant, however, having expressly admitted that the jury could find that the transportation was illegal, the order should stand unless the proceedings subsequent to the first complaint were unauthorized, and void.

the judgment of forfeiture has been entered, or the issuance of the search warrant thereon, even if the officer had certified on the order for a return that he had delivered the liquors to the claimant. The gravamen of the offense is bringing intoxicating liquors with intent that they shall be illegally sold into a town which has voted for no license. R. L. c. 100, § 10. It is this criminal act which works the forfeiture, and the necessary proceedings for condemnation relate only to the act itself, and not to the time when a search warrant issues. While the allegations of the complaint must be proved as in all criminal cases it is a proceeding in rem. Com. v. Intoxicating Liquors, 115 Mass. 142; Com. v. Intoxicating Liquors, 105 Mass. 595; Com. v. Intoxicating Liquors, 107 Mass. 386, 392.

The verdict having been warranted the order was in accordance with the statute, and the exceptions must be overruled. So ordered.

(219 Mass. 55) GRIFFIN v. SPRINGFIELD ST. RY. CO. (Supreme Judicial Court of Massachusetts. Hampden. Oct. 23, 1914.)

1. CARRIERS (§ 318*)-PERSONAL INJURIES— BURDEN OF PROOF.

Plaintiff's statement that just as she was "with a terrible jerk," throwing her to the floor, about to take a seat the electric car started together with testimony of injury, is not sufficient to sustain the burden of proof, under the principle of res ipsa loquitur.

Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § [Ed. Note.-For other cases, see Carriers, 318.*]

2. CARRIERS (8 320*)-PERSONAL INJURIES— QUESTION FOR JURY-NEGLIGENCE IN STARTING CAR.

That a start caused the fall of a stand

ing passenger, with evidence that, in the present state of electrical science, such starts are not the usual and necessary incidents to the operation of street cars, held to make the question of negligence one for the jury.

Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, [Ed. Note.-For other cases, see Carriers, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*]

Exceptions from Superior Court, Hampden County; Edward P. Pierce, Judge.

[2-5] It is plain that the conviction of Moore for transporting liquors without a permit would not bar his prosecution for transporting liquors within the town which were intended for illegal sale, or for keeping the liquor himself with intent to sell. Com. v. McConnell, 11 Gray, 204; Com. v. Cleary, 105 Mass. 384. The second complaint accordingly alleged that the liquors, with the implements of sale and furniture "used and kept and provided to be used in the illegal keeping and selling of said liquors, were and still are kept and deposited" by Moore "in an auto truck driven by him with intent to sell the same in violation of law." A search warrant issued, the liquors were seized, and the claimant upon the usual order of notice appeared and claimed the property. But if in the district court a forfeiture was ordered the appeal of the claimant vacated the judgment, and the discontinuance in the appellate court by the prosecuting officer terminated the case. Com. v. Tuck, 20 Pick. 356, 365. The third com- A. R. Bostick and C. G. Gardner, both of plaint which followed charging illegal trans- | Springfield, for plaintiff. Henry W. Ely and portation with the intent by Moore or of "some one❞ to sell the liquors contrary to law having been dismissed by the district court for want of jurisdiction, the claimant's rights to the property remained the same as if these complaints had not been instituted or the search warrants issued. Nor was the order for a return on May 3, 1913, entered upon the discontinuance, an adjudication barring the prosecution of the fourth complaint made on

Action by Mary Griffin against the SpringVerdict for field Street Railway Company. defendant, and plaintiff excepts. Exceptions sustained.

Jos. B. Ely, both of Westfield and Springfield, for defendant.

RUGG, C. J. The plaintiff seeks to recover damages for personal injuries sustained while a passenger upon one of the street cars owned and operated by the defendant. The evidence tended to show that the car was of the ordinary type of closed car, with a vestibule at each end. The usual signal to

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r InceTES

of negligence. Those decisions did not purport to lay down an absolute and inflexible proposition, but only to formulate a practical working rule adapted to common observation and the evidence then before the court. Different evidence might require a different result.

start the car was given just as the plaintiff | indicate that jolts and jerks were the result had gotten into the body of the car "and was about to take a seat," or "was about to sit down on one of the seats running lengthwise of the car," and that then "the car started with a jerk by reason of which the plaintiff was violently thrown backwards” and injured. She was 65 years old, in good health and physical condition. The plaintiff's daughter testified that, as her mother was about to sit, "the car gave a terrible jerk and • threw her to the floor." In answer to the question, whether there was anything to direct her attention to the force or kind of jerk, she answered:

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This testimony is almost in the same words as that held in Craig v. Boston Elevated Railway, 207 Mass. 548, 93 N. E. 575, not to

entitle the plaintiff to go to a jury. If this was all there was to the plaintiff's case, she would be precluded from recovery by the

authority of that decision.

[1] That

case is illustrative of many which have come before this court where a plaintiff by the use of violent descriptive epithets as to the nature of the starting of the car, together with testimony of injury, has sought to sustain his burden of proof. Uniformly it has been held that that is not enough. Anybody standing in an electric car is liable to be thrown off his balance and to fall as a result of such starts and jerks. Most of these cases are collected and reviewed in McGann v. Boston Elev. Ry., 199 Mass. 446, 85 N. E. 570, 18 L. R. A. (N. S.) 506, 127 Am. St. Rep. 509; Work v. Boston Elev. Ry., 207 Mass. 447, 93 N. E. 693, and Martin v. Boston Elev. Ry., 216 Mass. 361, 103 N. E.

828.

In its last analysis the principle upon which these and like plaintiffs have rested has been that of res ipsa loquitur. It is that principle which has been decided to be inapplicable (unless there is further evidence) to those ordinary starts and jerks which everybody knows have been common incidents of travel upon electric cars. But it has been recognized expressly or impliedly in such decisions that they depend upon the degree of perfection in electrical science as applied to the uses of common carriers and the reasonable possibility of preventing such starts and jerks. It was said in Hunt v. Boston Elev. Ry., 201 Mass. 182, at page 185, 87 N. E. 489, at page 490:

"There is every probability that these are necessary in the present state of the science" of operating street railways.

Apparently it was in the mind of the court that conditions might be shown which would

[2] There was evidence in the case at bar which went further than that which has been narrated or that which appeared in the cases cited.

Witnesses having special and unusual knowledge respecting the subject testified to the effect that if an electric car started with a sudden jerk of such force as to throw down a woman like the plaintiff in years and health, while walking forward in the car and about to take a seat inside the car, the cause was either the imperfect condition of the mechanism or the improper handling of the controller by the motorman. This testimony tended to show that starts and jerks of sufficient violence to produce such a defi

nite physical result, in the present state of the electrical science, are not the usual and necessary incidents of the operation of street cars. It goes further than the cases cited where the only thing shown was the jerk in the start of the car. It takes the present case out of the class where reliance has been put upon the doctrine of res ipsa loquitur. It would show, if believed, that, with the kind of mechanism and skill in operating which the defendant was required by law to furnish in the performance of its duty as a common carrier of passengers, a jerk in the starting of a car of sufficient force to throw down a passenger of reasonable physical strength in the act of becoming seated in the car, would not occur. It presents the case of injury occurring to the passenger in the exercise of due care under circumstances where negligence of defendant may be found from the definite physical fact of a start of the car of such nature as to cause the fall of a standing passenger. Unaided, the event did not speak of negligence. Supported and interpreted in the light of the expert evidence, it may be found to tell a story of negligence. Difficulties may arise in the weighing of such testimony in the face of every day experi ence, but that is a question of fact, lying within the province of the jury under proper instructions.

This conclusion is in no wise at variance with the well settled rule which governs when the plaintiff merely relies upon the injury. It is a different kind of case from those usually presented heretofore, where no basis has appeared for the inference of negligent conduct on the part of the defendant. Exceptions sustained.

(219 Mass. 78)

TAFT v. HENRY et al. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 23, 1914.)

1. SPECIFIC PERFORMANCE (§ 49*)-DEFENSES -CONSIDERATION.

years later, in 1879, Southwick gave to one Hobbs a quitclaim deed of the premises for the consideration stated therein of $200. More than two years later, in 1881, Hobbs gave to Amariah A. Taft a quitclaim deed of the premises for the consideration stated Defendant's ancestor, having taken a deed therein of $30.50, which was an inadequate to real property in 1876 and paid $450, gave a bond for title to S., agreeing to convey on de- consideration. All these deeds were duly mand within a year after date on payment of recorded, and Hobbs and Taft had actual the same sum, with interest. In 1879 S. quit- knowledge of the deed to Henry and of his claimed the premises to H., for a stated consideration of $200, and in 1881 H. quitclaim-bond to Southwick. Amariah Taft died some ed to plaintiff's ancestor, T. All the deeds were nine years after the deed to him, never havrecorded, and H. and T. had actual knowledge ing demanded a conveyance from Henry. The of the original deed to defendant's ancestor and of his bond to S. Held that, though the bond for title between defendant's ancestor and S. was not enforceable, because the deed to defendant's ancestor was taken to defraud the creditors of S., complainant's rights were founded on the bond for title, which was independent of any fraud on the creditors of S., and was therefore enforceable, regardless of the consideration passing between S. and H. and from H. to plaintiff's ancestor.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 140-151; Dec. Dig. § 49.*]

2. SPECIFIC PERFORMANCE (§ 105*)—DEFENSES -LACHES.

Laches was no defense to a suit for specific performance of a bond for title, where defend ants' position had not been altered to their prejudice.

[Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 325-341; Dec. Dig. § 105.*]

3. APPEAL AND ERROR (§ 695*)-MASTER'S FINDINGS-REVIEW.

Exceptions to a master's findings of fact cannot be reviewed, where all of the evidence has not been reported:

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2914; Dec. Dig. § 695.*]

4. APPEAL AND ERROR (§ 848*)-RULING OF LAW BY MASTER-REVIEW.

Where a master was only authorized to find the facts, exceptions relating to his rulings of law were not open to review.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3372-3376; Dec. Dig. 8 848.*1

Appeal from Superior Court, Worcester County.

Bill by Royal C. Taft against Alice J. Henry, administratrix of Albert F. Henry, deceased, and others. Judgment for plaintiff, and defendants appeal. Affirmed.

R. B. Dodge and W. J. Taft, both of Worcester, for appellants. Williams & Vincent, of Milford, for appellee.

When the bill was brought, nothing remained to be paid to Henry of the agreed sum of $450, or for interest, or for taxes paid by him; but it does not appear when the final payment of said sums was made to him.

plaintiff is his heir at law.

On these facts, the plaintiff is entitled to have the premises conveyed to him by the defendants unless some matter of defense is shown. Putnam v. Story, 132 Mass. 205, 213.

[1] The defendants contend that the plaintiff, claiming under Southwick, is not entitled to a conveyance because Southwick, having himself bargained for the premises, caused them to be conveyed to Henry for the reason that he (Southwick) was at that time, as the master has found, "apprehensive that if he took title in himself to the premises * * * they would be either attached or levied on, either by reason of some pending execution obtained against him or some other legal liability he was under, and on account of this apprehension, to prevent his judgment or other creditors from getting any hold on this property and to insure to himself the benefit of its purchase, he procured the deed of said premises to be made to said defendant Henry."

It may be conceded that by this transaction Henry acquired an absolute title against Southwick; but that could not prevent Southwick from obtaining afterwards rights thereto from Henry or from enforcing such rights against Henry when obtained. The plaintiff's rights rest now upon the bond given by Henry to Southwick and are independent of any fraud contemplated upon Southwick's creditors.

It is not material whether the considerations for the conveyances from Southwick to Hobbs and from Hobbs to the plaintiff's ancestor were or were not adequate. It has not been shown how large a part of the amount to be paid to Henry then remained unpaid; it is not suggested that either of the conveyances was not made in good faith; and Henry could not complain that Southwick's rights had passed to others.

SHELDON, J. This suit, originally brought against Albert F. Henry, is defended now by his widow and administratrix and by his heirs at law. Henry, in March, 1876, having taken a deed of the premises described in the bill and having paid the sum of $450 therefor, gave shortly afterwards to one Southwick a bond by which he bound himself to convey those premises to Southwick on demand, one year after date, on payment of the same sum with interest. Three tered to their prejudice.

[2] The defense of laches cannot be maintained. We do not know when the right of the plaintiff accrued by the full payment of the agreed price to Henry. Nor has the position of the defendants in any way been al

For other cases see same topic and suction NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[3, 4] None of the defendants' exceptions | deceased him, appointing a new trustee, and the can be sustained. Those that relate to find- son died leaving no widow. Held that, as the ings of fact must be overruled because the contingency on which the son was to take the greater interest had not occurred, he took only evidence has not been reported. Those that an equitable life estate, and as he left no widow relate to rulings of law are not open because the limitations over failed, and the fund would the master was only to find the facts, and be disposed of as intestate property: the real estate descending, under Gen. St. 1860, c. 94, not to rule upon their legal effect. But so§ 1, to the son and daughter, and the personalty, far as the questions raised are material, the under section 16, cl. 5, to testator's widow, the defendants have had the full benefit of them son, and the daughter in equal shares. in considering what decree should he entered [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2165, 2166; Dec. Dig. § 849.*] upon the facts reported.

What we have said covers everything that has been argued. The decree of the superior court must be affirmed with the costs of the appeal.

So ordered.

(219 Mass. 65)

Case Reserved from Supreme Judicial Court, Hampden County.

Petitions by the Springfield Safe Deposit & Trust Company against Edward J. Dwelly and others for instructions as to disposition of a trust fund of $70,000 held by petitioner under the will of Aaron S. Dwelly, deceased.

SPRINGFIELD SAFE DEPOSIT & TRUST From the decree in the probate court an ap

CO. v. DWELLY et al.

(Supreme Judicial Court of Massachusetts. Hampden. Oct. 23, 1914.)

1. WILLS (8_682*)-CONSTRUCTION-ESTATES IN TRUST-EQUITABLE LIFE ESTATE.

Under a will giving a fund to testator's wife, in trust to allow the son so much of the income and of the principal as she should deem best, with discretion to pay to him any part or the whole of the fund, and authorizing her by will to appoint a trustee to hold the fund on the same trust, and providing that if she made no such appointment the trust should terminate at her death and the fund pass to the son in fee simple, the son took an equitable life estate, with a provision that the fund might become his absolute property in case the first trustee should so elect, or if no new trustee should be appointed by her will.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1602, 1607-1611; Dec. Dig. § 682.*] 2. WILLS (440*) - CONSTRUCTION-INTENTION OF TESTATOR.

A court can give effect to any intention of testator, which he has shown by the words that he has used, even though not expressed in formal language; but such intention must appear from the will itself, and cannot be inferred from mere silence or founded upon conjecture as to what he would have said if he had foreseen the situation after his death.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 956; Dec. Dig. § 440.*1

3. WILLS ($ 449*)-CONSTRUCTION-CONSTRUCTION AGAINST INTESTACY.

A construction of a will which leads to a partial intestacy is not to be favored. [Ed. Note.-For other cases, see Wills, Cent. Dig. 965; Dec. Dig. § 449.*] 4. WILLS ($849*)-ConstRUCTION BLE LIFE ESTATE-INTESTACY.

peal was taken to the Supreme Judicial Court, where the case was reserved by Braley, J., for the full court. Instructions given.

C. H. Beckwith, of Springfield, guardian ad litem of R. H. Greenman. Jonathan Barnes, of Springfield, for executor of A. H. Dwelly and guardian ad litem of E. J. Dwelly. C.H. Barrows, of Springfield, for executors of H. M. Dwelly. F. H. Stebbins, of Springfield, guardian ad litem, pro se.

SHELDON, J. By the sixth article of his will, Aaron S. Dwelly created a trust fund and appointed his wife Hannah M. Dwelly to be the trustee thereof. He provided that she should allow his son Albert H. Dwelly to have so much of the income and also so much of the principal as she should from time to time deem best, and that she might at any time, according to her own judgment and discretion, pay to him any part or the whole of the trust fund. He provided further that his wife might by her will appoint a trustee to hold the fund "for the said Albert H., with the same power and authority" which he had given to her, and that if she made no such appointment the trust should end at her death and the trust fund pass to "his said son in fee simple."

[1] We think it plain that the effect of these limitations was to give to Albert Dwelly an equitable life estate in the fund, but with the provision for his benefit that EQUITA- the trust should come to an end and the fund Where testator left a fund to his wife, in become his absolute property if the trustee trust to allow a son so much of the income and should choose to pay the whole fund to him, principal as she should deem best, with discre- or if the first trustee, the testator's widow, tion to pay him any part or the whole of the should not by her will appoint a new trustee trust fund, and with power by will to appoint a trustee with the same powers, and providing to succeed herself. But the testator then that upon her death without such appointment added further limitations. He provided that the trust should terminate and the fund go to if his son Albert should die leaving a widow the son in fee simple, and a further provision the trust fund should be divided into two that if he died, leaving a widow, the fund should be divided into two equal shares, one of which equal shares, of which one share should be should go to the widow, and the other share given to such widow, and the other share half to his surviving children and half to tes- should be given, half to Albert's surviving tator's daughter, or if they both died childless then to the testator's other grandchildren. The child or children, if any, and half to the surtrustee, without paying over to the son, pre- viving child or children, if any, of Mrs. Ray

mond, a daughter of the testator; or if ei- | in view of present circumstances, would have ther his son or his daughter died childless, made. And so are our decisions. Nickerson then the whole of this half share was to be v. Bowly, 8 Metc. 424, 431; Metcalf v. given to the testator's other grandchildren.

Framingham Parish, 128 Mass. 370, 374; Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, 98, 25 N. E. 30, 8 L. R. A. 740; Child v. Child, 185 Mass. 376, 378, 70 N. E. 464; Jones v. Gane, 205 Mass. 37, 45, 91 N. E. 129; Sanger v. Bourke, 209 Mass. 481, 95 N. E. 894.

The equitable title to the principal of this trust fund never was vested in Albert Dwelly, and such cases as Hayward v. Rowe, 190 Mass. 1, 76 N. E. 286, have no application. Nor do the provisions of this will bring the case under the rule of such decisions as Fay v. Phipps, 10 Metc. 341, Holden v. Blaney, 119 Mass. 421, Chauncey v. Francis, 181 Mass. 513, 63 N. E. 913, and Powers v. Rafferty, 184 Mass. 85, 67 N. E. 1028.

The testator has made no other effective disposition of the fund. The limitations to the children of Albert Dwelly and of Mrs. Raymond are in terms contingent upon the death of Albert leaving a widow. No means are afforded by the language of the will from which we can determine how the testator desired the fund now to be disposed of. The bequests to his grandchildren are expressly made to depend upon a contingency which has not taken place; he has manifested no intention to make them independent of that contingency; and the court has no right to take away limitations which he chose to put upon his bounty.

Albert Dwelly has died. The fund was not paid to him by the trustee thereof; and his mother, who died before him, did by her will appoint a new trustee (the petitioner) to succeed herself. Accordingly the trust was not terminated before Albert's death. He left no widow. No express directions are given in Aaron Dwelly's will for the disposition of the trust fund in the event which has happened. We cannot find in this article of the will, or in any other part of the will, the manifestation of an intent that Albert Dwelly should have any further or greater interest in the fund than that which was expressly given to him. The contingencies on which he was to take anything more are clearly set forth in unmistakable language. We cannot enlarge that language or give to Albert any greater interest than that which his father chose to give to him. The limitations over, after Albert's decease, of whatever then might remain of the trust fund indicate that Albert's interest was only for his life, unless it should have been made absolute, as might have been but was not the case. But even if (as it has been contended that we ought to do) we should disregard entirely the disposition of the fund which the testator directed to be made if his son Albert should die leaving a widow, on the ground that the event therein contemplated has not happened, yet there would be left nothing more than the creation of an equitable life estate for the benefit of Albert, with merely a provision for the enlargement of his interest upon either one of two contingencies, neither of which has happened, and both of which, during the lifetime of his mother, the testator's widow, had been carefully made to depend wholly upon her judgment and discretion, | nothing from which we can determine that to which the testator declared that he entirely confided the matter. The court cannot exercise in Albert's favor the discretion which thus was confided to his mother; nor, when the testator chose to entrust the enlargement of his son's interest to her unfettered discretion, can the court say that he intended to give to his son anything more than the opportunity to obtain the enlarge ment by the exercise of that discretion..

[2] The court can indeed give effect to any intention of a testator which he has shown by the words that he has used, even though it has not been articulated in formal language; but such an intention must appear from a perusal of the will itself. It cannot be inferred from mere silence; much less can such an inference be founded upon bare conjecture as to what a testator would have said if he had foreseen the events which have happened since his death. We cannot speculate as to his intentions and make for him such a will as we may consider that he now,

[3, 4] It is true that a construction of a will which leads to a partial intestacy is not to be favored; and apparently this testator supposed that he was making an effectual disposal of all his property. But it is also true that he has made no provision for the disposition of this fund in the event which has happened; and we find disclosed in his will

any particular disposition thereof would meet the desires or give effect to the intention which he has expressed. It follows that the case comes under the principles declared in Boston Safe Deposit & Trust Co. v. Buffum, 186 Mass. 242, 71 N. E. 549, Stearns v. Stearns, 192 Mass. 144, 77 N. E. 1154, Walton v. Draper, 206 Mass. 20, 91 N. E. 884, and Bragg v. Litchfield, 212 Mass. 149, 98 N. E. 673; and the fund must be disposed of as intestate property. The result is that the fund, so far as it consisted of real estate, descended to the testator's heirs, under the statute then in force (Gen. St. c. 91, § 1), to wit, his son Albert H. Dwelly and his daughter Ellen D. Raymond, and so far as it consisted of personal property was to be distributed under the provisions of Gen. St. c. 94, § 16, cl. 5, among the distributees of his intestate personal estate, to wit, his widow and his son and daughter, in equal shares.

The petitioner is to be instructed that it ought to pay to itself as trustee under the

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