All the The payments on account of principal and in- [ to such sister and another for life, other sister terest are to be treated as payments on acto receive all, if first died first, and, if other count of the original loan, and not as sepa- died first, fund to be divided into equal parts, rate and independent transactions. payments were made on account of the original sum borrowed; and as the loan was for less than $1,000, and there has been paid on account thereof a sum exceeding the amount actually borrowed and a sum equal to $5 for the actual expenses of making and securing the loan, it follows that when the note in suit was given the debt had been discharged; and as the note is without consideration no legal liability is imposed upon the defendant. The circumstance that the de fendant was not the maker of the first six notes cannot affect the conclusion reached; as an indorser of these notes he was liable thereon, and as to all subsequent notes except the last he was primarily liable as maker. one to be held for first sister for life, other to other sister's son absolutely, and other twobe divided into three equal parts, one to go to thirds to be held for other sister's two daughters for life, on death of each trustees to convey principal of share to daughter's children then living and issue of any deceased child of daughter, and, if neither daughter should leave issue, to convey her share to "lineal heirs" of testator's mother, and, if none, to cousins, etc., did not create trust contrary to rule against perter being all born before death of his mother. petuities; three children of testator's other sis Will of life tenant of trust, bequeathing part to sister for life, rest to trustees to pay income to such sister and another for life, other sister to receive all, if first died first, and, if other died first, fund to be divided into equal [3] It could not properly be found that parts, one to be held for first sister for life, oththere was a waiver by the borrower of any er to be divided into three equal parts, one to rights given by the statute. Undoubtedly the go to other sister's son absolutely, and other borrower could waive his rights if he saw two-thirds to be held for other sister's two fit to do so, as the statute was intended for daughters for life, on death of each trustees his benefit. Reed v. Boston Loan Co., 160 to convey principal of share to daughter's chilMass. 237, 35 N. E. 677; Shawmut Commer-dren then living, and issue of any deceased child of daughter, and, if neither daughter should cial Paper Co. v. Brigham, 211 Mass. 72, 97 leave issue, to convey her share to "lineal heirs" N. E. 636. In Spofford v. State Loan Co., of testator's mother, and, if none, to cousins, 208 Mass. 84, 94 N. E. 287, it was held that etc., held to have meant by "lineal heirs" the where a borrower executed to the lender a mother's descendants; such heirs to be ascerrelease of all his rights under the statute, he tained on the happening of a future event, was bound thereby. That case is not an auwhen the trustees were to convey the fund. thority in favor of the plaintiff. Shawmut Commercial Paper Co. v. Brigham, supra, does not support the plaintiff's contention. In that case the borrower had not paid or tendered the full amount of the loan, and therefore could not take advantage of the statute. In the present case the note had been paid in full under the statute before the last note was given. It being admitted that the lender has received payments sufficient to discharge the loan under the statute, it is immaterial that such payments have been made by different persons liable for the amount borrowed. It follows that the order of the Appellate Division that judgment be entered for the plaintiff for the amount therein stated with interest, must be reversed and judgment entered for the defendant. So ordered. (233 Mass. 9) ERNST v. RIVERS et al. (Supreme Judicial Court of Massachusetts. Suffolk. April 18, 1919.) 1. PERPETUITIES CONTRAVENTION OF RULE. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Lineal Heirs.] 3. WILLS 629 - CONSTRUCTION - VESTING OF RIGHTS-INTENTION. The general rule that the rights of devisees or legatees are to be taken to vest at the time of testator's death cannot prevail, if contrary to his clearly expressed intention. 4. WILLS 531(2)-CONSTRUCTION-GIFT TO "HEIRS" OR "ISSUE"-CLASS REFERRED TO. It is a general rule, to be followed, unless testator has clearly manifested a contrary intent, that a devise or bequest to "heirs" or "issue" refers to class of beneficiaries who would be entitled to take under law of intestate succession, if designated ancestor had died at time fixed for ascertaining the class, and also indicates members of class so determined are to share as such persons would share under statute relating to distribution of intestate estates, so that distribution is not to be per stirpes. [Ed. Note.-For other definitions, see Words and Phrases, First and Seond Series, Heirs; Issue.] 5. WILLS 498, 506(1)-GIFT TO HEIRS OR ISSUE-COMPETITION BETWEEN GRANDCHILDREN AND PARENTS. Where a gift is made to members of a class 4(15) - TRUST NOT IN described as "heirs" or "issue," grandchildren and their descendants will not be allowed to compete with their parents, unless such was testator's intention. Will of life tenant of trust, bequeathing part to sister for life, rest to trustees to pay income For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Case Reserved from Supreme Judicial | grandchildren of Lydia Smith Russell, nameCourt, Suffolk County. Bill for instructions by Roger Ernst, trustee, against Robert Wheaton Rivers and others. On reservation on the amended bill and answers for consideration of the full court. Decree ordered to be entered directing the petitioner. Clifford H. Walker, of Boston, guardian ad litem (Roland Gray, of Boston, of counsel), for defendants George R. R. Rivers and others. Walter L. Van Kleeck and Edwin A. Howes, Jr., both of Boston, for defendants Shields and others. Channing, Corneau & Frothingham, of Boston, for defendant Robert Wheaton Rivers. CROSBY, J. This is a bill for instructions by the surviving trustee under the will of Jonathan Russell. The trust fund respecting which the trustee desires instructions has been held heretofore for the benefit of one Mary Rivers, a niece of the testator, who died on August 7, 1918, thereby ending the trust except for the purposes of distribution. By her will as modified by the first and third codicils, Lydia Smith Russell, mother of Jonathan Russell, disposed of her, estate (so far as material to the questions involved in this case) as follows: She devised and bequeathed one-fourth of her estate (increased to one-third by the death of her daughter Ida before the testatrix's death) to her son Jonathan, to have and to hold for and during his natural life with the power of appointment by will, which in its final form as expressed in the third codicil is as follows: "It is my will that my daughters and son shall have power of disposing of their respective shares of my estate among my lineal heirs, to have and enjoy the same upon such terms and provisions as may be prescribed by my children. The foregoing provisions are made for appoint ments to take effect in case of the death of any of my children without issue then living." The testatrix, Lydia Smith Russell, was survived by three children, namely, Jonathan Russell, who died in 1875 without issue, Geraldine I. (Rivers) Upton, who died in 1885 leaving three children, and Rosalie G. Russell, who died in 1897 without issue. ly, the surviving son of George R. R. ters of Rosalie G. Sheffield; and no issue of Rivers and eight surviving sons and daughany deceased great-grandchildren. The son One of the sons of Rosalie G. Sheffield has of George R. R. Rivers has three children. two children; one of her daughters had four children at the date of Mary Rivers' death, one of whom has since died. The descendants of Lydia Smith Russell living at the date of Mary Rivers' death therefore were nine great-grandchildren and nine children of three of these same great-grandchildren. Under the will of Lydia Smith Russell as modified by the first and third codicil thereto, Jonathan Russell received one-third of his mother's estate in trust for his benefit for life with power (in the event of his death without issue then living) to appoint by will the principal among the "lineal heirs" of his mother at his decease. Under the third article of Jonathan Russell's will as modified by the first codicil, he devised and bequeathed the fund as follows: To his sister Rosalie G. Russell he gave a life estate in certain real estate in Milton; and the rest of his estate to trustees to pay the income in equal shares to his two sisters, Geraldine I. Upton (formerly Rivers) and Rosalie G. Russell, during their respective lives-Geraldine to receive the entire income if Rosalie should die first. If (as happened) Geraldine should die first, the trust fund should then be divided into two equal parts, one of which the trustees should continue to hold for the benefit of his (the testator's) sister Rosalie during her life; the other half was to be divided into three equal parts, one of which was to go to Geraldine's son George R. R. Rivers absolutely, and the other two thirds were to be held in trust for the benefit of Geraldine's two daughters, Mary Rivers and Rosalie G. Sheffield, equally during their respective lives; it being provided that on the death of each of these two daughters the trustees "shall convey in fee simple and transfer" the principal of the share so held in trust for her benefit to her children then living and the lawful issue of any deceased child of such daughter; and in the event that either daughter should leave no lawful issue surviving at her death, then they (the trustees) shall under the first codicil "convey in fee simple and transfer" such The children of Geraldine who survived share "to the lineal heirs of my mother, her were George R. R. Rivers, who died in Mrs. Lydia Smith Russell" and if there be no 1900 and is survived by one child, Robert such "lineal heirs" then living to my cousins Wheaton Rivers; Rosalie G. Sheffield who Mrs. Lucinda Jameson and Mrs. Sarah Ernst, died in 1909 leaving nine children, one of in equal shares, “or if either of them be then whom has since deceased without issue; and dead, to convey in fee simple, transfer and Mary Rivers who died in 1918 without issue. pay over her said share to her lawful issue She was the last of the grandchildren. It then living." The provision so made under thus appears that at the time of the death of the first codicil was in substitution for a Mary Rivers there were living nine great- provision in the original will which directed the trustees upon the contingency above all the circumstances it could not reasonably referred to "to convey and transfer the same to the persons who shall then be the heirs at law of my said sister Geraldine." The will and codicil provide for the same disposition of Rosalie G. Russell's share after her death, including the real estate in Milton. This real estate has been sold and one-third of each half of the principal of the fund, and of the proceeds of the real estate has been distributed to George R. R. Rivers. That part of the remainder which was held in trust for Mrs. Sheffield (Geraldine's daughter) and one-third of the proceeds of the real estate in Milton have been distributed to her surviving heirs under the terms of the will. Leverett v. Rivers, 208 Mass. 241, 94 N. E. 470. As previously stated this bill for instructions relates to the final distribution of the portion.of the trust fund held for the benefit of Mary Rivers, Geraldine Upton's unmarried daughter who died August 7, 1918, without issue. The trustees are directed by the testator upon the happening of this contingency to "convey in fee simple and transfer" the fund so held in trust for Mary Rivers to the "lineal heirs of my mother, Mrs. Lydia Smith Russell," and the questions are what persons are entitled thereto, and in what proportions? The trust fund so to be distributed consists of one-third of the trust estate created by the testator's will-being one-third of the one-half which was partially distributed on the death of Geraldine, and one-third of the one-half which was thereafter held for the use and benefit of Rosalie G. Russell, and was partially distributed after her death, and also one-third of the proceeds of the real estate in Milton. [1] The trust created by the will of Jonathan Russell is not contrary to the rule against perpetuities, as it appears that the three children of Geraldine I. Upton were all in being before the death of Lydia Smith Russell. Leverett v. Rivers, supra. In exercising the power of appointment given to him by his mother's will, the testator followed closely the language used by her in her will; and it is a reasonable inference that in making his appointment he used the words "lineal heirs" in the same sense in which he believed them to have been used in her will, and intended them to have the samemeaning. be found that he intended to include himself and his two sisters as the only members of a class who should take upon the final distribution of the fund. Having provided an equitable life estate for each of the daughters of Geraldine who should survive her mother, this sister would not have been living when the contingency happened upon which "lineal heirs" would become entitled: besides, he expressly provided in the first codicil that his trustee should convey to his two cousins "if there shall be no such 'lineal heirs' then living." In view of these considerations and the other provisions of his will, it is manifest that he did not intend to make a gift to a class the members of which were to be determined as of the date of his mother's death, but that such heirs should be ascertained on the happening of a future event, at which time the trustees were to transfer and convey the fund. [3, 4] The general rule of construction that the rights of devisees or legatees are to be taken to vest at the time of the testator's death cannot prevail if contrary to the clearly expressed intention of the testator. Heard v. Read, 169 Mass. 216, 47 N. E. 778; Bosworth v. Stockbridge, 189 Mass. 266, 75 N. E. 712; Crapo v. Price, 190 Mass. 319, 76 N. E. 1043; White v. Underwood, 215 Mass. 299, 102 N. E. 426. The time when the trustees are directed to transfer and convey the fund to the "lineal heirs" of the testator's mother must be held to have referred to the time when Mary Rivers died, without issue. It is a general rule of construction to be followed unless the testator has clearly manifested a contrary intention that a devise or bequest to "heirs" or "issue" refers to that class of beneficiaries who would be entitled to take under the law of intestate succession if the designated ancestor had died at the time fixed for ascertaining the class, and also indicates that the members of the class so determined are to share in the same manner and proportions as such persons would share under the statute relating to the distribution of intestate estates. Houghton v. Kendall, 7 Allen, 72; Rand v. Sanger, 115 Mass. 124; Allen v. Boardman, 193 Mass. 284, 286, 79 N. E. 260, 118 Am. St. Rep. 497. [5] Where a gift is made to members of a class described as "heirs" or "issue" in accordance with the rule last above stated it [2] It is plain that "lineal heirs" means is held that grandchildren and their descenddescendants. While the testator's mother died in 1859, his death did not occur until ants will not be allowed to compete with 1875, and it would seem certain that he did their parents unless such was the intention not intend to use the word "heirs" in the of the testator. We find no such intention strict legal sense of heirs as they existed on the part of the testator in the case at at the time of his mother's death. At that bar. In Manning v. Manning, 229 Mass. 527, time they were his two sisters and himself. at page 529, 118 N. E. 676, at page 677, it was said: If he had meant them the use of the word "lineal" would have been unnecessary. When "By allowing the grandchildren and greatthe will is construed as a whole, in view of grandchildren to take simultaneously it admits children to compete with their living parents- the lineal heirs [which in this case as matter a construction to be avoided unless such plain- of construction means descendants] of the ly was the testator's intention." Jackson v. testator * *" meant that "lineal heirs" Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. were direct descendants as distinguished R. A. 305, 25 Am. St. Rep. 643; Coates v. from collateral heirs. The court did not Burton, 191 Mass. 180, 77 N. E. 311; Dexter undertake to define in that case the limits of v. Inches, 147 Mass. 324, 17 N. E. 551. the class who would be entitled to take on It follows that the "lineal heirs" of Lydia | final distribution upon the contingency which Smith Russell at the date of Mary Rivers' has happened in the case at bar. death are her nine great-grandchildren; and We cannot agree with the contention of that their children, although descendants of Robert Wheaton Rivers that he is entitled to Mrs. Russell, are not members of the class one half of the estate, and that the other half described in the will of the testator because, should be divided between the eight survivtheir parents being alive, they would not be ing children of Rosalie G. Sheffield. There entitled to inherit from Mrs. Russell under is nothing to show that the testator intended the statute of distribution. R. L. c. 133, § 1. that the distribution should be per stirpes; And as all of the nine members of the class such a division would not be in accordance are of the same degree of kindred to Mrs. with the rule of the statute of distribution, Russell they are entitled to share equally. and would be contrary to the rule of conWhile it is agreed by counsel for the great-struction applied in cases hereinbefore regreat-grandchildren that the "lineal heirs" ferred to where the word "heirs" and the are those living at the time of the death of Mary Rivers, and that when she died the time for distribution had arrived, he contends that the words "my lineal heirs" as used in the third codicil of Mrs. Russell's will which gave to her son Jonathan the power of disposing of his share of her estate "among my lineal heirs," mean all the descendants of Mrs. Russell however remote, and that those words were so construed by this court in the case of Leverett v. Rivers, supra. In that case the question for decision was whether the appointment, to children of Mrs. Sheffield born after Jonathan Russell's death was valid. The statement in the opinion that "when a power is given to appoint among word "issue" have been used in description of a class. A decree is to be entered directing the petitioner to transfer and convey one-ninth part of the trust fund with accumulations of income since the death of Mary Rivers, to each one of the eight surviving children of Rosalie G. Sheffield, and the remaining oneninth part to Robert Wheaton Rivers, the only surviving child of George R. R. Rivers. Costs and counsel fees are to be allowed to be paid out of the fund to the guardian ad litem of the great-great-grandchildren for his services, the amount to be determined by a single justice. So ordered. (233 Mass. 29) LEVY V. RADKAY. (Supreme Judicial Court of Massachusetts. Suffolk. April 23, 1919.) the goods were to be delivered to the defendant at his store in Hyde Park. Nor was he required to rule that the order sent by the salesman, "Send to I. Radkay, Hyde Park Ave., * * constituted a special or DISBELIEF OF TESTI- implied contract that the title to the goods should not pass until delivery to the buyer at Hyde Park. St. 1908, c. 237, pt. 2, § 19, rule 5; St. 1908, c. 237, pt. 3, § 43. The evidence warranted a finding that the plaintiff selected and packed the goods as ordered, and delivered them for transmission to the defendant to Mahoney's Express, the carrier or bailee named by the defendant for that purpose. St. 1908, c. 237, pt. 2, § 19, rule 4 (2). The goods were destroyed by fire while in the possession of Mahoney's Express. In seller's action for price of goods ordered from sample, trial court was not bound to believe the buyer's testimony that the goods were to be delivered to him at his store. 2. SALES 201(2) PASSAGE OF TITLE ON DELIVERY-SPECIAL CONTRACT-STATUTE. In action by seller of goods for the price, the trial court, under St. 1908, c. 237 (Sales Act) pt. 2, § 19, rule 5, and part 3, § 43, was not required to rule that the order sent by the seller's salesman, "Send to [the buyer] Hyde Park avenue," constituted a special or implied contract that title should not pass until de livery to buyer at Hyde Park. whole evidence plaintiff cannot recover" [3] The request to rule that "upon the could not have been given rightly. The judge by his refusal to rule as requested must be 3. SALES 201(4)-REFUSAL TO RULE-IM- taken to have found that there was no agreePLICATION OF FINDING. Under St. 1908, c. 237, pt. 2, § 19, rule 4 (2), title passed to the buyer on delivery by the seller to the expressman designated by the buyer for delivery to him. ment that the title should not pass until delivery at the place of business of the defendant, and to have ruled as he did rule "that the title to the merchandise passed to defendant upon delivery to Mahoney." TwitchIN-ell-Champlin Co. v. Radovsky, 207 Mass. 72, 92 N. E. 1038; Garvan v. N. Y. C. & H. R. R., 210 Mass. 275, 96 N. E. 717. 4. SALES 168(5) SALE BY SAMPLE Appeal from Municipal Court of Boston, Appellate Division; Thomas H. Dowd, Judge. Action of contract by Albert J. Levy against Irving C. Radkay, resulting in a finding for plaintiff. The case was reported to the appellate division of the municipal court of the city of Boston, which dismissed the re port, and defendant appeals. Order of appel late division affirmed. James E. Kelley, of Boston, for appellant. PIERCE, J. This is an action of contract brought by the seller to recover from the buyer the price of goods ordered from samples shown at the buyer's store. [1, 2] The evidence warranted the finding of the presiding judge "that defendant directed the plaintiff to ship the merchandise in suit by Mahoney's Express, and that the defendant was to pay the express charges for transportation." The judge was not bound to believe the testimony of the defendant that I The finding of fact necessarily made by the judge in refusing the first request also necessitated a refusal to give rulings numbered 2, 3, 4 and 5. [4] The sixth request: "The goods were For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |