Testator bequeathed the residue of his estate to trustees, to pay one-half of the remainder of the net income to his wife for life, onefourth to his daughter for life, and the remainder to the payment of certain incumbrances. Other paragraphs declared that after the wife's death, one-half of the principal of the trust should be paid to the wife's appointees, but that it was testator's "wish and desire" that, if the wife received from testator's daughter and her family the affection and respect to which she was entitled, she should appoint such share of the trust to such daughter and her children in such proportions as the wife deemed best, and in default of appointment the wife's share should be added to the share held in trust for testator's daughter and her children on the same trust, and that after the decease of testator's daughter the remainder should be divided among the daughter's children, etc. Held, that it was testator's intention to keep the trust fund together, and that the trusteees were bound to pay over to the widow one-half of the net income for life and to her appointee after her death. 2. TRUSTS WILL.

CREATION CONSTRUCTION OF

Testator created a trust of the residue of his estate, and provided that after the death of his wife one-half of the principal of the trust fund should be paid to her appointee, but that it was testator's wish and desire that she should appoint the share to testator's daughter and her children in case the wife received love and respect from them. Held, that the words "wish and desire" did not constitute a trust for the benefit of testator's daughter and her children, but that such clause was a mere expression of a hope by testator.

Case Reserved from Supreme Judicial Court, Suffolk County.

Bill by one Holmes, as executor and trustee of the estate of Angie N. Allen, deceasesd, against Evelyn Maynard Dalley, as sole trustee of the estate of Aaron Hall Allen and others, on reserved case. Decree for plaintiff.

W. W. Vaughan and S. F. Batchelder, for complainant. J. L. Thorndike and E. R. Thayer, for defendants.

LATHROP, J. This is a bill in equity by the sole executor of and trustee under the will of Angie N. Allen, against Evelyn Maynard Dalley, wife of Henry Dalley, as she is the sole trustee under the will of Aaron Hall Allen, and against her children, and against Evelyn Maynard Dalley in her own right. The bill prays for a decree against Mrs. Dalley as trustee that she be ordered to pay over one-half of the trust fund under the will of Aaron Hall Allen.

Aaron Hall Allen died on June 23, 1889, leaving his wife, Angie N. Allen, surviving him. By the first article of his will, which was duly admitted to probate in Suffolk county in September, 1889, he first devises to his wife, Angie N. Allen, in fee, his residence in Boston. By the second article he devises 78 N.E.-33

to his daughter Evelyn Maynard Dalley an estate in Brooklyn, New York, for life, with remainder to her children. By the third article he bequeaths to trustees all the residue of his estate real and personal for the following uses and purposes:

1. To apply the proceeds of the sale of the personal property to the payment of the mortgage on the estate devised to his wife; and if there should be any of the proceeds of the personal property remaining, after the payment of the above-mentioned mortgage, the to apply the remainder to the payment of the mortgage, "as far as may be," to the payment of the mortgage on the house bequeathed to the daughter, and if any of the proceeds remaining of the personal property is left then to apply the same to the payment of any of the mortgages on the testator's other real estate.

The trustees are then directed to receive and collect the rents, profits and income of his real estate, and the proceeds, if any, of the real estate which the trustees might sell, and after deducting expenses, etc., to pay certain annuities. Then follow these clauses:

"(3) To pay one half the remainder of the net income of said trust estate, to my wife Angie N. Allen, during her natural lifeand to pay one fourth thereof to my daughter Evelyn Maynard Dalley, during her natural life The remaining one fourth part of said net income, is to be applied to my said trustees, to the payment, of the mortgages and incumbrances on the real estate held by them in trust, in such manner as they think best, until all said mortgages and incumbrances are paid off and satisfied, and the said trust estate is free and clear therefrom-and then said one fourth is to be paid to my daughter during her life.

"(4) Fourth-After the decease of my said wife, one half of the principal of said trust estate is to be paid over and conveyed to such person or persons, and in such proportions as my said wife shall by will appoint, but it is my wish and desire that if my wife has received from my daughter and her family the affection and respect, to which she is entitled, that she then will appoint said share of said trust estate to my daughter and her children, in such a way and manner, and in such proportions, as to her may seem bestbut in case my said wife shall die without making any appointment of her share of said trust estate, then the same shall be added to the share held in trust for my daughter and her children and be held upon the same trusts.

"(5) Fifth-After the decease of my daughter, the remaining one half of said trust estate, and in case of the death of my wife without making any appointment as provided in the preceding paragraph, then the whole of the principal of said trust estate, shall be divided equally among the children of my said daughter, the issue of any deceased child

to take its parents share by right of representation."

Angie N. Allen died on March 14, 1904, leaving a will and codicil, which were duly admitted to probate. The tenth article of her will reads as follows: "All the rest, residue and remainder of my estate, both real and personal, including my share of the principal of the trust fund established by the will of my late husband, Aaron Hall Allen, proved and allowed in the Probate Court for Suffolk County, September, 1889, over which by the provisions of said will I have the right and power of appointment, I do hereby give, devise and bequeath and in exercise of said power of appointment hereby appoint to my executors and trustees hereinafter named and the survivor of them and their successor or successors, in trust for the following uses and purposes." Then follow various legacies.

In the fifteenth article of her will she disposes of the rest and residue of her property to the plaintiff, who was her son-in-law, and of the trust property left her under her husband's will. She also asserts that she has not received from her husband's daughter and her family the affection and respect to which she was entitled, and has therefore exercised her power of appointment.

The eighth paragraph of each of the answers alleges that Angie N. Allen at all times received the affection and respect to which she was entitled. It also charges collusion between the plaintiff and Angie N. Allen, in drawing the will so as to make it appear that she was acting in accordance with the power. The case was reserved by a single justice of this court for our consideration, "on the terms that if the matters alleged in the eighth paragraph of the answers are competent as a defense to the plaintiff's bill, the plaintiff shall be at liberty to file a replication, and the cause shall stand for trial; otherwise, a decree is to be entered for the . plaintiff."

The real question in the case is whether the words "wish and desire" in the fourth clause of the will of Mr. Allen create what is commonly called a precatory trust, or whether they are merely an expression of the hope and belief of the testator.

We are of opinion that, taking the will as a whole, it was the intention of the testator to keep the trust fund together, paying over to his widow one half of the net income during her life, and that on her death one half of the principal was to be paid as she should appoint. We are further of opinion that the words "wish and desire" do not constitute a trust, but are merely an expression of a hope on the part of the testator. The question of fact sought to be raised by the defendants therefore becomes immaterial; and according to the terms of the report the plaintiff is entitled to judgment. The case in our opinion rests upon Aldrich v. Aldrich, 172 Mass. 101, 51 N. E. 449, and cases cited.

See, also, Lloyd v. Lloyd, 173 Mass. 97, 53 N. E. 148. The case of McCurdy v. McCallum, 186 Mass. 464, 72 N. E. 75, relied on by the defendants, was decided on what was found to be the law of Nova Scotia, and was not based upon the decisions in this commonweath.

Decree for the plaintiff.

(192 Mass. 486)

RAYMOND v. COMMONWEALTH. (Supreme Judicial Court of Massachusetts. Suffolk. June 27, 1906.)

1. EMINENT DOMAIN-FORFEITURE OF CLAIM FOR DAMAGES.

The failure of an owner of land sought to be taken under the right of eminent domain to take advantage of the remedy prescribed for the recovery of damages for the taking works a forfeiture of any claim therefor.

2. SAME-WHAT CONSTITUTES CONSTITUTES A TAKING

STATUTES-LIMITATIONS.

St. 1899, p. 509, c. 457, restricts the height of buildings within a certain area. St 1901, p. 474, c. 525, by amendment extends the restriction to include other lands, and provides that petitions for damages must be brought within one year from the passage of the statute of 1899. St. 1902, p. 471, c. 543, reenacts the restrictions and provides that betterments shall be set off in the assessment of damages, and grants two years within which a petition for damages may be prosecuted. St. 1905, p. 151, c. 224, extends the time for another year. Held, that the statute of 1902 constitutes a fresh taking, and petitions for damages may be brought within three years from its passage.

[Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Eminent Domain, § 785.]

3. SAME-DAMAGES AWARDED-INTEREST.

Since St. 1902, p. 471, c. 543, which reenacts St. 1899, p. 509, c. 457, as amended by St. 1901, p. 474, c. 525, restricting the height of buildings in a certain area, constitutes a fresh taking, a petitioner claiming damages pursuant to the statute is entitled to interest on the damages awarded only from the date of its adoption.

4. SAME-PERSONS ENTITLED TO PAYMENTDEVISEES.

Rev. Laws, c. 135, § 22, provides that in a devise of lands all the estate of the devisor shall pass, unless it is shown that he intended to convey a less estate. A will devised land to a devisee for life, with right to dispose of the same from the time of her death. There was no gift over, except as contained in the residuary clause, directing the executor to dispose of the balance of the estate for a specified purpose. The devisee conveyed the land to a trustee for her benefit, and the trustee reconveyed the same to her. Held, that the devisee became seised of the land and entitled to damages awarded for a taking for a public use without the interference of a trustee, authorized by Rev. Laws, c. 48, §§ 17, 19, relating to the appointment of trustees for claimants having different interests.

Appeal from Superior Court, Suffolk County; Francis A. Gaskill, Judge.

Petition by one Raymond against the commonwealth, brought under St. 1902, p. 471, c. 543, as amended by St. 1905, c. 224, to recover damages sustained in consequence of the limitation on the height of buildings within a certain area. From a judgment for

petitioner, the commonwealth appeals. Judgment modified.

E. R. Thayer and J. L. Motley, for petitioner. Dana Malone, Walter Perley Hall, and Fred T. Field, for the Commonwealth.

BRALEY, J. While private property under the right of eminent domain cannot lawfully be taken by the sovereign power without awarding just compensation to the owner, unless he has assented, yet the public purpose and time of such appropriation as well as the period in which any remedy for the recovery of damages is to be exercised are in its exclusive control, and failure by the landowner to take advantage of the remedy works a forfeiture of any claim for damages. Talbot v. Hudson, 16 Gray, 417, 424; Haskell v. New Bedford, 108 Mass. 208, 214; Burnett v. Com., 169 Mass. 417, 425, 48 N. E. 758.

By St. 1899, p. 509, c. 457, the height of buildings within a small area west of the State House was restricted, and St. 1901, p. 474, c. 525, § 4, by amendment extended the restriction to include certain estates lying easterly of the building and grounds, among which was that of the petitioner. It was provided that petitions for damages should be brought within one year from June 2, 1899, the date of its passage, and this period was subsequently enlarged to three years by St. 1901, p. 329, c. 417, but as the present suit was not begun until February 4, 1905, it cannot be maintained unless subsequent legislation either conferred a similar right, or removed this limitation. Danforth v. Groton Water Co., 176 Mass. 118, 120, 57 N. E. 665. Upon the expiration of this limitation then came St. 1902, p. 471, c. 543, reenacting the restriction as to the height of buildings which might be erected on the petitioner's estate, but this act granted a period of two years from June 28, 1902, when it took effect, within which a petition might be prosecuted. St. 1905, p. 151, c. 224, subsequently extended this time for a further term of one year, and as these two statutes are to be construed together they accordingly make the limitation three years from the date of the first enactment. Danforth Y. Groton Water Co., 178 Mass. 472, 59 N. E. 1033, 86 Am. St. Rep. 495; Dunbar v. Boston & Providence Railroad Corporation, 181 Mass. 383, 63 N. E. 916; Rogers v. Nichols, 186 Mass. 440, 443, 71 N. E. 950. It is manifest from the entire series of amendatory statutes so far as they relate to the remedy, that at least the petitioner and probably other owners of the estates which had been injuriously affected by the primary act as amended, inadvertently failed to taken advantage of its provisions, and thus had lost their right to recover compensation. Geraghty v. Boston, 120 Mass. 416. To remedy what may have been deemed an injustice, and to enlarge and more specifically define the restricted area,

instead of a separate act granting a further extension of time under the original condemnation, the Legislature by St. 1902, p. 471, c. 543, § 1, again proceeded explicitly to condemn these estates, but with a provision not before found, that any betterment which had accrued by reason of the general improvement should be set off in the assessment of damages. That this was intended as a fresh taking is shown not only by the different provisions concerning the ascertainment of damages, but by the inclusion of other estates in the vicinity. St. 1902, p. 471, c. 543, § 2. If the original taking for any reason had been considered of doubtful validity, or the provision for the payment of damages was considered as not being sufficiently favorable to the respondent, there can be no serious question that the commonwealth could proceed independently under the subsequent statute without such action being treated as reviving the petitioner's right to recover under a former taking which had been barred by the lapse of time, as a second condemnation without a proviso to that effect did not revive the former right of action. See Crompton Carpet Co. v. Worcester, 123 Mass. 498, 504. But it is obvious there can be no entry upon the premises in the sense that when land is taken for the use of the public, physical possession at some period in the proceedings becomes requisite as in the laying out of public ways, and where interest on the damages awarded, or recovered by suit is to be computed only from the date of entry. Edmands v. Boston, 108 Mass. 535; Pegler v. Hyde Park, 176 Mass. 101, 57 N. E. 327. And to compensate the petitioner interest must be allowed from June 28, 1902, which is the date of the only taking under which the petition can be maintained. Old Colony Railroad Co. v. Miller, 125 Mass. 1, 28 Am. Rep. 194; Imbescheid v. Old Colony Railroad Co., 171 Mass. 209, 50 N. E. 609; Hay v. Com., 183 Mass. 294, 295, 67 N. E. 334, and cases cited.

If the question of the measure of damages is thus determined, the remaining inquiry concerns the title, and while the respondent makes no contention that she is not entitled to the entire sum absolutely, the judgment from which the appeal is taken provides for the appointment of a trustee under Rev. Laws, c. 48, §§ 17, 19, because the petitioner was held to be only a tenant for life. By the first clause of the will of Matthias P. Sawyer he devised to her the mansion house and land, which are the premises described in the petition, "for and during her natural life with the right to dispose of the same as she shall think proper from the time of her death." When this will was admitted to probate Rev. St. c. 62, § 4, now Rev. Laws, c. 135, § 22, provided that in a devise of lands all the estate of the devisor therein should pass, unless by his will it clearly ap peared that he intended to convey a less

estate. After this gift there is no devise over, and the language of the residuary clause, that within two years after the testator's death his executor should dispose of the "balance" of the estate to the "Massachusetts General Hospital," is inconsistent with a construction that he intended to include this property which previously had been given to his daughter. Baker v. Bridge, 12 Pick. 27, 31; Joslin v. Rhoades, 150 Mass. 301, 23 N. E. 42; Bassett v. Nickerson, 184 Mass. 169, 68 N. E. 25. But it is unnecessary to decide if a fee passed for in any event she took a life estate with a power of disposal by deed or by will. Kimball v. Sullivan, 113 Mass. 345; Kent v. Morrison, 153 Mass. 137, 139, 26 N. E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616; Dana v. Dana, 185 Mass. 156, 70 N. E. 49. The phrases "during her natural life" and "from the time of her death," which were used to express his purpose have no larger signification than if the testator had said that the estate was "to be kept and retained by her as long as she shall live," and this language was held in Todd v. Sawyer, 147 Mass. 570, 17 N. E. 527, where a similar devise was made to be insufficient to prevent the devisee from conveying an absolute title in fee. The power given being unrestricted the devisee could sell the property to whomsoever she pleased, and when received the proceeds became her individual property. Kent v. Morrison, supra. That she chose to convey to an intermediary upon a trust, for her benefit, and who reconveyed to her was a valid execution of the power, for being the donee she could convey directly to herself in fee. By either form of conveyance she would become seised not as grantee of herself, but as the person designated by her in exercise of the power conferred by the testator from whom upon its execution she would derive title. Hall v. Bliss, 118 Mass. 554, 559, 19 Am. Rep. 476, and authorities there cited; Look v. Kenney, 128 Mass. 284.

The judgment awarded by the superior court having included interest from June 19, 1901, the date of the passage of St. 1901, p. 473, c. 525, must be reversed, and judgment, without the appointment of a trustee, is to be entered for the petitioner in the sum of $32,500, with interest at the legal rate from June 28, 1902.

So ordered.

(74 Oh. St. 389)

of

ELDRIDGE & HIGGINS CO. et al. v. BARRERE.

(Supreme Court of Ohio. June 26, 1906.) 1. JUDGMENT-ENTRY-NEW TRIAL.

Where a journal entry confessedly made and entered on the 4th day of November, 1904, begins with the recital, "This day this cause came on to be heard on the pleadings and the evidence and was argued by counsel; on consideration whereof the court does find on the issues joined in favor of the plaintiff and against the defendants," etc., but thereafter the same entry, in fixing the time within which

the decree it records is to be performed, uses the following language, "within thirty days from the rendering of this decree. to wit, the 24th day of October, 1904," the latter recital will not be held so far controlling as to give to such entry the effect of an entry nunc pro tunc, nor does it operate to give said decree force and validity from October 24, 1904. But such decree is valid and operative only from November 4, 1904, the date of its entry, and a motion for new trial filed within three days thereafter is in time.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 985.]

2. ERROR, WRIT OF - REVIEW — MOTION FOR NEW TRIAL.

An order of the court dismissing and striking from the files a motion for new trial without considering or determining such motion on its merits is a final order reviewable on error. Young v. Shallenberger, 41 N. E. 518, 53 Ohio St. 291, distinguished.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 477, 522, 740.]

(Syllabus by the Court.)

Error to Circuit Court, Franklin County.

Action by Carlisle Barrere against the Eldridge & Higgins Company and others. Judg. ment for plaintiff was affirmed in the circuit court, and defendants bring error. Reversed and remanded.

The original action, out of which the present proceeding in error arises, was commenced by the defendant in error, Carlisle Barrere, against plaintiffs in error, the Eldridge & Higgins Company and others, in the court of common pleas of Franklin county, Ohio, on March 30, 1903. Judgment having gone against them in the court of common pleas. plaintiffs in error on December 31, 1903, appealed said cause to the circuit court. The cause was again tried in the circuit court, and, the judgment being again adverse to the plaintiffs in error (defendants in the courts below), they, on November 4, 1904, filed their motion for a new trial, which motion was as follows: "Now come the said defendants by their attorneys and move the court here to vacate the judgment herein rendered and to grant a new trial of this case for the following reasons substantially affecting the rights of the said defendants: (1) Said judgment is contrary to the evidence in the case and against the manifest weight thereof. (2) Said judgment is contrary to law. (3) Said judgment was given for the plaintiff when it ought to have been given for said defendants. (4) The defendants were entitled to a judgment in the case upon the uncontradicted evidence and the pleadings. (5) Other errors apparent upon the record. Wherefore the defendants pray the court to vacate and set aside said judgment and for a new trial of this action." Thereafter, on March 6, 1905, the defendant in error, Carlisle Barrere (plaintiff below), filed in said cause the following motion: "The plaintiff moves the court to strike from the files of this court the motion for a new trial filed by defendant herein on the 4th day of Novem

ber, 1904, for the following reasons to wit: (1) Said motion was not filed within the time required by law. (2) No motion for a new trial in this case was or is necessary." On April 1, 1904, this motion was sustained by by the circuit court for the cause alleged in the first paragraph thereof, and the motion for a new trial filed by plaintiffs in error was ordered to be stricken from the files. Additional facts are stated in the opinion herein. Thomas E. Powell, for plaintiffs in error. Huggins, Huggins & Johnson, for defendant in error.

CREW, J. (after stating the facts). This proceeding is prosecuted by plaintiffs in error to obtain the reversal of an order made by the circuit court of Franklin county, Ohio, dismissing and striking from the filles, for the alleged reason that the same was not filed within the time required by law, the motion of plaintiffs in error for a new trial, without considering or determining said motion on its merits. Section 5307, Rev. St. 1906, provides: "The application for a new trial must be made at the term the verdict, report, or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered, and produced at the trial, shall be made within three days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time." It is not disputed in this case that the motion for a new trial filed by the plaintiffs in error was filed at the term of the circuit court at which the final decision was rendered, but it is the contention of counsel for defendant in error that said motion, which was filed on November 4, 1904, was not filed within three days after such decision was made, and it is their claim that th's fact is affirmatively shown by the following entry in said cause made and entered upon the journal of the circuit court on November 4, 1904: "November 4, 1904. This day this cause came on to be heard on the pleadings and the evidence and was argued by counsel. On consideration whereof the court does find on the issues joined in favor of the plaintiff and against the defendants that the defendants have abandoned all defense as to the second cause of action in plaintiff's petition contained, and concede plaintiff's right thereto; that the plaintiff is in law and equity the rightful holder of the certificates of stock Nos. 29 and 37, as described in plaintiff's petition, as pledgee, for value as for a present consideration; and that he is entitled to have the same transferred upon the books of the defendant company as prayed for in his petition herein. It is therefore ordered, adjudged, and decreed that, unless said John E. McIntosh redeem said certificate of stock No. 29 within 30 days from the rendering of this decree, to wit, the 24th day of October, 1904, by paying the amount loan

ed by plaintiff thereon, with interest from the time said loans were made, the defendants, the Eldridge & Higgins Company, Charles G. Higgins, as president thereof, T. W. Bulford, as secretary thereof, David S. Gray, J. M. Parker, J. H. Cartzdafner, J. E. McIntosh, Charles C. Higgins, and Frank Jones, as directors of said defendant company, and each of them, transfer said certificate of stock on the books of the defendant, the Eldridge & Higgins Company, from the name of said John E. McIntosh to the name of plaintiff, and that the president and secretary of said company cancel said certificate of stock No. 29 and issue a new certificate of stock for said certificate No. 29 to plaintiff and in plaintiff's name, and that said defendants enter upon the books of said company, among the stockholders thereof, the plaintiff as the owner of said shares of capital stock of said corporation, and that said corporation pay all dividends declared by said company upon said stock since the 12th day of May, 1902, to plaintiff, with interest. To all of which judgments, rulings, orders, and decrees of the court, the said defendants, by their counsel except.

**

It is admitted that this entry was made at the time it bears date (November 4, 1904), and that no entry of any judgment or decree by the circuit court in this case had been previously made. The question therefore is whether, in computing and determining the time within which plaintiffs in error were required to file their motion for new trial, the judgment and decree of the circuit court, as evidenced by this entry, is to be given effect as a judgment and decree of October 24, 1904, or whether the same shall be considered and given effect as a judgment and decree of November 4, 1904, the time of its entry upon the journal of said court.

It will be noticed that, in fixing the time within which defendants were to perform the duty enjoined upon them by the decree rendered, the language used in the entry is, "within 30 days from the rendering of this decree to wit: the 24th day of October, 1904," and it is claimed for this language, thus used, that it affirmatively and conclusively establishes the fact that the decree in this case was rendered on October 24, 1904, and to

all intents and purposes gives to said decree the same force and effect as if made and entered on that day. To give effect to such claim in this case is not only to ignore the earlier recitals in said entry that the cause came on to be heard on the pleadings and evidence and was argued and submitted on November 4, 1904, but it would be to invest this entry, because of this language, with the attribute and office of an entry nunc pro tunc, and at the same time give to it a force and effect different from that the law would give it as such entry. But this entry is not, neither does it purport to