an action for its recovery is a new trustee, to be appointed by the court, (Dunning v. Ocean Nat. Bank, 6 Lans. 296.) See Jackson v. Phillips, 14 Allen, 539, 584; Ackroyd v. Smithson, 1 Brown, Ch. 503; S. C. 1 White & T. Lead. Cas. Eq. (6th Ed.) 1027; Hopkinson v. Ellis, 10 Beav. 169; Jones v. Mitchell, 1 Sim. & S. 290; Brook v. Badley, L. R. 3 Ch. 672; Robinson v. Taylor, 2 Brown, Ch. 589; Hamilton v. Foot, 6 Ir. Eq. 572. A recovery by the plaintiff in the case at bar would be no bar to a suit brought by a new trustee, or by heirs at law, against the estate of Healy.

The court erred in ruling that the burden was not on the plaintiff to show that Healy had not paid out the sum in charities. The cases of White v. Ditson, 140 Mass. 351, S. C. 4 N. E. Rep. 606, and Choate v. Arrington, 116 Mass. 552, in which it was decided that the burden was upon the sureties on an executor's bond, etc., were governed by Gen. St. c. 101, § 28, and Pub. St. c. 143, § 20. See U. S. v. Hayward, 2 Gall. 485, 498; Williams v. East India Co., 3 East, 192; Hartwell v. Root, 19 Johns. 345; Phelps v. Cutler, 4 Gray, 137; Frontine v. Frost, 3 Bos. & P. 302; Greenl. Ev. § 80; Greenough v. Welles, 10 Cush. 571.

This proceeding is not the proper form of remedy to be pursued for this fund. 3 Williams, Ex'rs, (Perkin's Ed.) 1681, 1684; Clay v. Willis, 1 Barn. & C. 364; Deane v. Caldwell, 127 Mass. 242, 246; Pub. St. c. 137, §§ 11, 13. This excludes all equitable claims from appeal, and from the jurisdiction of the commissioners.

E. M. Johnson, for appellee, Norcross, Adm'r.

DEVENS, J. In White v. Ditson, 140 Mass. 351, S. C. 4 N. E. Rep. 606, it was held that the sureties on the bond of Healy, as executor of Percival, were not responsible, in view of the limited character of the bond given by them, previous to St. 1880, c. 152, (Pub. St. c. 129, § 5,) for the proceeds of the real estate which had been sold under a direction by the testator to this executor named, "or to whom should execute" the will, to convert his real estate into money. When real estate had been changed into money by virtue of a power in the will, it was not, in our view, that personal property for the administration of which the sureties became responsible. So far as the real estate was concerned, their obligation was definitely limited to "the proceeds of his real estate that may be sold for the payment of his debts and legacies."

By the will of Percival, the whole property (after payment of certain debts and legacies) was bequeathed to Healy, who was also executor, in trust to be disposed of by him for charitable purposes. Healy never settled any account as executor, nor did any definite act in the probate court by which it could be held that he had discharged himself in the capacity of executor, and had accepted the trust imposed on him, and thus thereafter held the property as trustee. But, while the sureties were held not to be responsible for the proceeds of real estate sold by Healy, it by no means follows that he was not responsible therefor as executor, or that the money received from the sale of the real estate was not, as against him, of the goods and chattels, rights and credits, of the estate, which he was bound faithfully to administer in the execution of the will.

That in some form, and to some one, the estate of Healy must respond for the money received by him from the sale of the real estate of Percival, must be conceded. Marvel v. Babbitt, ante, 566. The question before us is whether the administrator de bonis non of Percival may now, as "the goods and estate of the deceased not already administered," prove a claim for the amount received by Healy from the sale of the real estate, before the commissioners of insolvency on his estate. The administrator de bonis non has already recovered, by action upon the executor's bond of Healy, the balance of the personal property, after certain deductions, which Healy had failed to devote to the purposes of the trust. It is urged that, as soon as the sale of the real

estate was made, the proceeds belonged, not to Healy as executor, but as trustee. It was the mode which the testator had provided for the execution of his will that the whole real estate should be turned into money, which sum would be subjected to his debts and legacies, the residue of the whole estate being bequeathed in trust. The power and direction to sell the real estate, and convert it into money, was not a personal trust, but conferred upon whoever might execute the will, who would receive the money to devote to the purposes of the will. If Healy had declined to execute the will, and an administrator with the will annexed had been appointed, he might have sold the real estate, but he would have held the proceeds as the assets of the estate, and not of the legatee in trust, who had no right in the proceeds of the real estate specifically. If Healy had commenced the execution of the will, had sold the real estate under the authority given, and with the proceeds in his possession had then resigned his office, or been removed therefrom, it could not have been necessary to appoint an administrator de bonis non to receive the personal property not administered, and also a trustee to receive the proceeds of the real estate. The whole of it-that which was originally personal, and that which had been lawfully converted from realty to personalty by the authority of the will-was of the goods and estate not already administered. Whether, in the case at bar, after the administrator de bonis non shall have recovered against the estate of Healy, it shall be determined that a new trustee can be appointed to execute the charitable trust upon which the residue was bequeathed, and whether, if he cannot, the next of kin may have a claim against that part of the residue which was originally personalty, or whether, if so, the heirs at law are entitled to assert a right as against the proceeds of the real estate, as well as other questions which have been suggested, need not now be decided. As the matter stands, the funds which were in the hands of Healy were the goods of the testator, subject to administration, even if the money was derived from the sale of land made by him for the purpose of converting it into personal property in accordance with the direction of the will.

The case of Buttrick v. King, 7 Metc. 20, sustains the view we have taken. A husband reserved and created a trust fund, primarily for the benefit of his wife, who was to receive the income, and at her decease the property was to be divided among his children. The wife had power to sell and convey any part of the property, but it was directed that the proceeds of the sale should be subject to be divided among his children as he had previously directed the property to be divided. Under this authority she sold lands; took notes therefor, which, after her death, were paid to her administrator. It was held that the administrator de bonis non of the husband was entitled to recover of the administrator of the wife the money in his hands received by him in payment of the notes. "The admistrator de bonis non of the husband," says Chief Justice SHAW, "is the proper person, we think, to take and administer the fund, because, if there should still be debts due from the testator, as there may be, notwithstanding the lapse of time on covenants of real estate, or the like, the creditors would be entitled to payment before the legatees. Otherwise the administrator de bonis non will be bound to pay over to the legatees according to the will."

We are of opinion that, in the case at bar, the administrator de bonis non was entitled to prove against the estate for the amount received by Healy as the proceeds of real estate.

The inquiry remains whether the burden is upon the plaintiff to show that the sum thus received has not been paid out in charities, in execution of the trust, upon which he was entitled to receive the residue. Although Healy did not settle his account as executor, nor transfer this residue to himself as trustee, yet, as it is found that there were no debts and legacies unpaid, if he distinctly devoted, as trustee, any of the funds to the charitable purposes con

templated by the will, to that extent the damages should be reduced. Of such deduction he has heretofore had the full benefit, apparently. White v. Ditson, supra. He wholly failed to account as executor or trustee. Had he rendered accounts in the proper court, he then would have been required to produce vouchers, receipts, or other proper evidence of payment. It would certainly be a curious anomaly if, by failing to account, he could throw upon one claiming the property the burden of showing that he had not lawfully expended the fund. The administrator de bonis non, who succeeds, can have no knowledge in relation to the dealings of the executor with the property, who has himself a distinct duty to account for it. White v. Ditson, ubi supra; Choate v. Arrington, 116 Mass. 552.

Upon the sum found due by defendant, interest should be allowed from February 26, 1867, for reasons fully stated in White v. Ditson, ubi supra.

The defendant contends that, if the plaintiff has any remedy, it is in equity only, and that equitable claims are not provable before commissioners in insolvency. But such liabilities were made provable by St. 1884, c. 293. Judgment on finding.

(143 Mass. 316)

BARROWS v. SWEET and another.

(Supreme Judicial Court of Massachusetts. Suffolk. January 8, 1887.) ARBITRATION-AWARD-MISTAKE-SETTING ASIDE EVIDENCE.

Where matters in dispute between three parties are submitted, and the arbitrator, by inadvertence, charges one item against one of them, when in fact there was no dispute about it, and it was admitted by the parties as chargeable against another, the award is vitiated by the mistake, and the evidence of the arbitrator is competent to show the fact, and sufficient to avoid the award.

Contract upon an account annexed. The defendants' answer set up an agreement of reference to an arbitrator, signed by plaintiff and defendant, and the award of the arbitrator. At the trial in the superior court, without a jury, before BLODGETT, J., the court ruled and found upon the evidence, the substance of which appears in the opinion, that there was such a mistake on the part of the arbitrator as to avoid his award. The court found for the plaintiff, and the defendants alleged exceptions.

J. A. Bennett and F. I. Babcock, for defendants.

The books are full of decisions adverse to revising the proceedings of arbitrators. Rundell v. La Fleur, 6 Allen, 484; Mickles v. Thayer, 14 Ällen, 114. In the case at bar, the facts do not show such an error as to avoid the award. Davis v. Henry, 121 Mass. 150; Spoor v. Tyzzer, 115 Mass. 40; Carter v. Carter, 109 Mass. 306. Courts will not set aside an award for mistake of the arbitrator, where the facts were placed before him, and he was a competent judge. Boston Water-power Co. v. Gray, 6 Metc. 131. By accepting payment plaintiff ratified the award, and could not repudiate his ratification without restoring the defendants to as good a situation as they were in when the award was made. Culver v. Ashley, 19 Pick. 300; Perkins v. Wing, 10 Johns. 143.

C. G. Keyes, for plaintiff.

The finding of the court that there was such a mistake on the part of the arbitrator as to avoid the award was warranted by the evidence. Boston Water-power Co. v. Gray, 6 Metc. 131; Rundell v. La Fleur, 6 Allen, 484; Ellicott v. Coffin, 106 Mass. 367; Palmer v. Clark, Id. 373; Carter v. Carter, 109 Mass. 306; Rollins v. Townsend, 118 Mass. 224; Davis v. Henry, 121 Mass. 154; Gaylord v. Norton, 130 Mass. 74. The plaintiff was not estopped from bringing this action by receiving and retaining the check of $26.60, under the circumstances. The plaintiff did all that he could reasonably be called upon to do before bringing his action. There was no election or effort on his

part, after discovering the mistake, to abide by the award, or retain its benefits.

W. ALLEN, J. In this commonwealth, an award may be impeached at law for mistake of fact of the arbitrator, not appearing on the face of the award, but proved by extrinsic evidence. Bean v. Farnum, 6 Pick. 269; Boston Water-power Co. v. Gray, 6 Metc. 131; Mickles v. Thayer, 14 Allen, 141. Proof of mistake of fact, which would be sufficient to set aside an award in equity, is competent to impeach it at law.

The plaintiff and the two defendants constituted a copartnership under the firm name of the Home Paper Company. The two defendants constituted a copartnership under the firm name of E. H. Sweet & Co. All claims between the plaintiff and E. H. Sweet & Co. and the members of that firm, and all claims between the parties arising out of the business of the Home Paper Company, were included in the submission. It appears from the award that there were six items submitted to the arbitrators, four of which were disputed. Of the disputed items, one is a claim by the plaintiff against E. H. Sweet & Co., amounting to $1.10, which is allowed, and three claims by E. H. Sweet & Co., against the plaintiff, one of which, for the sum of $12, is disallowed, and two, amounting to $141.76, are allowed. The principal item was the claim of the plaintiff against E. H. Sweet & Co. for the balance due him for services in their employment. This, amounting to $301.09, was admitted by the parties. The next largest item was the one concerning which the question of mistake of the arbitrator arises, and the following is all of the award that relates to it: "E. H. Sweet & Co. have a claim against Charles M. Barrows for goods furnished and work done, amounting to $161.28. Several payments have been made on this bill, amounting to $22.45, leaving a balance of $138.83. There is no dispute about this balance." In stating the account between the parties, the award states the item last mentioned as follows: "The balance of E. H. Sweet & Co.'s bill against Mr. Barrows is admitted to be $138.83."

It was proved at the trial that this item was presented to the arbitrator, at the hearing before him, by the plaintiff, in the form of a bill headed "Home Paper Company, to E. H. Sweet & Co., Dr.;" that the bill was in fact due from the Home Paper Company, and not from the plaintiff; but that nothing was said at the hearing in regard to this, and the arbitrator had no recollection of looking at the heading of the bill, the plaintiff stating that the balance was correct. The testimony of the arbitrator was that if he had apprehended or observed that the bill was against the Home Paper Company, and not against the plaintiff, his award would have been different. This evidence was competent and sufficient to avoid the award. The claim of E. H. Sweet & Co. against the Home Paper Company was within the submission, and it was necessary to find the amount of it, in order that the amount of the proportion chargeable to the plaintiff in favor of his copartners, the defendants, should be computed, and the award made accordingly. What the parties did was to present, as admitted, the bill against the Home Paper Co.; what the arbitrator understood them to do was to present and admit a bill against the plaintiff. No question was made whether the plaintiff should be charged the whole or one-third of the bill, and the arbitrator formed no judgment, and found no conclusion, in regard to it, and no such question was in his mind. By inadvertence, he assumed as a fact, admitted by the parties and not presented to him to decide, that the bill was against the plaintiff. The item was not in dispute. The bill was presented and admitted by the parties as a bill against the Home Paper Company. The arbitrator, by mere mistake and inadvertence, took the fact to be that it was, and was admitted to be, against the plaintiff. It was a mistake of fact so material as to vitiate the award. Boston Water-power Co. v. Gray, ubi supra; Carter v. Carter, 109 Mass.

306; Davis v. Henry, 121 Mass. 150; Rundell v. La Fleur, 6 Allen, 480; 2 Story, Eq. Jur. § 1456.

The offer of the plaintiff to return the money to the defendants, or to give them credit for it, as they might prefer, was all that could reasonably be required of him. By the defendants' own admission, there was more than that amount due to the plaintiff, if the award did not conclude him. Exceptions overruled.

(143 Mass. 307)

LEONARD v. FITCHBURG R. R.

(Supreme Judicial Court of Massachusetts. Suffolk. January 8, 1887.)

1. CARRIERS-INJURIES TO CATTLE-METHOD OF TRANSPORTATION-USAGE.

In an action to recover damages for an alleged injury to cattle in transportation, to quarantine grounds, by the use of improper cars, evidence that the defendant had always used similar cars for this purpose is inadmissible, although the defendant was the only road in the commonwealth engaged in the transportation of cattle to quarantine.

2. SAME-EVIDENCE.

A witness, in testifying to the injury received by cattle at a place which would not be a proper market for them, may express the injury by a statement of what its effect would be upon the value of the animals there, since they must there have a value for the purpose of transportation.

Action to recover damages for alleged injuries sustained by certain cattle delivered to the defendant as a common carrier, to be transported by it from a dock in Boston to the quarantine grounds in Waltham, established by the laws and regulations and under the government of the United States authorities. Trial in the superior court before PITMAN, J., where the verdict was for the plaintiff, and the defendant alleged exceptions. The facts are stated in the opinion.

C. A. Welch, for defendant.

L. S. Dabney, for plaintiff.

If an exception is sustained to the admission of evidence which has reference solely to the question of damages, the new trial should be as to damages only. Townsend v. Hargraves, 118 Mass. 325; Kent v. Whitney, 9 Allen, 62; Negus v. Simpson, 99 Mass. 388; Hunter v. Farren, 127 Mass. 481. The rulings permitting defendant to show what kind of cars were used by other railroads, etc., and rejecting as immaterial defendant's own practice in these respects, was in exact accordance with the authorities. Lewis v. Smith, 107 Mass. 334; Lane v. Boston & A. Ry. Co., 112 Mass. 455; Peverly v. Boston, 136 Mass. 366; Kline v. Baker, 99 Mass. 253; Ely v. James, 123 Mass. 36. The evidence of Cheever and the plaintiff as to the value of the cattle, and the amount of the injury or damage to them, is well supported. Coolidge v. Choate, 11 Metc. 79; Selkirk v. Cobb, 13 Gray, 313; Glaspy v. Cabot, 135 Mass. 435; Bourne v. Ashley, 1 Low. 27. Market value is matter of fact. Swan v. County of Middlesex, 101 Mass. 173; Lawton v. Chase, 108 Mass. 238; Whitney v. Thacher, 117 Mass. 523. The decision of the judge is conclusive as to the requisite knowledge of witness to give an opinion, unless it is shown that there was no competent evidence at the trial upon which he could so decide, or that the decision is founded upon some error of law. Com. v. Sturtivant, 117 Mass. 122; Tucker v. Massachusetts Cent. R. R., 118 Mass. 546; Hills v. Home Ins. Co., 129 Mass. 345; Perkins v. Stickney, 132 Mass. 217; Patton v. Bell, 141 Mass. 197; S. C. 5 N. E. Rep. 300; Dole v. Johnson, 50 N. H. 452; Howard v. Providence, 6 R. I. 514; Sorg v. First German, etc., Cong., 63 Pa. St. 156; Cliquot's Champagne, 3 Wall. 114; Sisson v. Cleveland & T. R. Co., 14 Mich. 489; Shattuck v. Stoneham Br. R. R., 6 Allen, 115; Snow v. Boston & M. Ry., 65 Me. 230; Sexton v. North Bridgewater, 116 Mass. 200.