"Be determined at common law." See Waters v. Randall, 8 Met. 132.

SECT. 11. Arbitrators appointed under this section have no power to award that the claimant is in fact indebted to the estate. Gilmore v. Hubbard, 12 Cush. 220.

SECT. 13. "For other cause than his own neglect." See Cross v. Cross, 7 Met. 211.

SECT. 17. Dividends may be ordered whenever the court deems it proper, &c. St. 1868, c. 327, s. 2.

SECT. 18. Before the General Statutes, no distinction was made between partnership and individual creditors, in the settlement of the estate of a deceased insolvent. Jewett v. Phillips, 5 Allen 150, 151.- Sparhawk v. Russell, 10 Met. 305.

SECT. 20. "Or the action may be continued without costs until it appears whether the estate is insolvent." See Hunt v. Whitney, 4 Mass. 620, 624.—Blossom v. Goodwin, 1 Mass. 502.

If an administrator suffers judgment to be recovered against him before he represents the estate of his intestate to be insolvent, he must pay the full amount of such judgment. Newcomb v. Goss, 1 Met. 333.

SECT. 21. "Unless further assets," &c. See Ostrom v. Curtis, 1 Cush. 461, 466. — Johnson v. Libby, 15 Mass. 140, 142.

There is no statute of limitation which bars the claim of a creditor by reason of any lapse of time between the closing of the commission of insolvency and the coming to hand of further assets. Ostrom v. Curtis, 1 Cush. 461, 467. But see Johnson v. Libby, 15 Mass. 140, 143.

SECT. 26. An executor or administrator will be liable to an action under this section for neglecting to render his account, even though he has not been cited for that purpose by the judge of probate. Fay v. Haven, 3 Met. 109, 112.

SECT. 27. Provision for distribution of dividends unclaimed for five years. St. 1868, c. 288.

CHAPTER C.

OF TRUSTS.

SECT. 1. This section does not apply to trustees for public and permanent charities. Drury v. Natick, 10 Allen 169, 176. -Lowell, Appellant, 22 Pick. 215.

SECT. 2. "Has so ordered or requested." It seems that it is not necessary that such order or request should be made in express terms, -it is sufficient if it may fairly be inferred from the provisions of the will that the testator intended that no bond should be required. Lowell, Appellant, 22 Pick. 215, 221..

SECT. 5. "A mere abandonment of a trust by one trustee does not divest his legal interest in the trust property and transfer it to the other trustees." Per METCALF, J., in Webster v. Vandeventer, 6 Gray 428, 429.

SECT. 8. As to the power of the supreme court to remove a trustee under its general equity jurisdiction, see Bowditch v. Banuelos, 1 Gray 220, 229.

"Evidently unsuitable." See cases cited under chapter 101, sect. 2, and chapter 109, sect. 24.

SECT. 9. As to the power of the supreme court in the matter of the appointment of new trustees under its general equity jurisdiction, see Bowditch v. Banuelos, 1 Gray 220, 229.

It seems that not only when a sole trustee, but also when one of several dies, &c., it is the duty of the court to appoint a successor, and to keep up the original number of the trustees appointed in the will. Dixon v. Homer, 12 Cush. 41.- Mass. Gen. Hospital v. Amory, 12 Pick. 445. But although the court appoints only one trustee when it ought to have appointed more, this fact will not affect the validity of the appointment and of the acts of the trustee. Greene v. Borland, 4 Met. 336.— Dixon v. Homer, 12 Cush. 41, 43.

"If no adequate provision is made therein." See Shaw v. Paine, 12 Allen 293, 297.

"After notice to all persons interested." Such notice is necessary to the validity of the appointment. Shaw v. Paine, 12 Allen 293, 295.

One who is a devisee or legatee under the same will which creates a trust, but has no interest, direct or indirect, in the trust itself, is not entitled to notice as a 66 person interested." Greene v. Borland, 4 Met. 330, 332.

"The trust estate shall vest in him.” It will so vest without any conveyance. Parker v. Converse, 5 Gray 336, 341. But when a new trustee is appointed, not by the court under this section, but in pursuance of provisions in the will, the trust estate will not vest in him without proper conveyance. Peabody v. Eastern Methodist Soc. in Lynn, 5 Allen 540. — Webster v. Vandeventer, 6 Gray 428, 429.

SECT. 11. "In all cases not otherwise provided for by law trustees appointed by the probate court shall be required to give bond," &c. St. 1869, c. 357.

SECT. 14. "After notice to all other persons interested." Further provision as to notice. St. 1864, c. 168, s. 2. [St. 1863, c. 25.]

SECT. 15. Similar provision for sale of estates encumbered by contingent remainders, executory devises, or powers of appointment. St. 1868, c. 287.

Concurrent jurisdiction over matters relating to sales under this section given to probate courts. St. 1869, c. 331.

SECT. 16. Concurrent jurisdiction of matters relative to sales of trust estates given to probate courts. St. 1869, c. 331.

Supreme court may decree sale of trust estate "upon petition of a trustee or other party interested." St. 1864, c. 168,

s. 1.

Provision for notice, &c., when parties not in being, &c., are interested. St. 1864, c. 168, s. 2. [St. 1863, c. 25.]

For a case in which the court refused to decree a sale, for the reason that it would tend to defeat some of the objects of the trust, see Davis, Petitioner, 14 Allen 24, 29.

SECT. 19. "No trust concerning lands." It seems that a trust concerning a mortgage of real estate is not within this section, and may be created orally, for the reason that the debt secured by the mortgage is considered the principal thing, and the security as merely the accessory. Sturtevant v. Jacques, 14 Allen 523, 527.

"Except such as may arise by implication of law." Such a trust, for the benefit of the partnership creditors, arises when real estate is purchased by partners with partnership funds and for partnership purposes. Fall River Whaling Co. v. Borden, 10 Cush. 458, 471, 475. — Burnside v. Merrick, 4 Met. 537, 541.

Such a trust arises also when a deed is made to one, the consideration being paid by another, the nominal grantee in such case being considered to hold as trustee for the party who pays the consideration. Livermore v. Aldrich, 5 Cush. 431, 435. — Perkins v. Nichols, 11 Allen 542, 545. And it seems that the result will be the same when the grantee named in the deed pays the consideration in his own money, if it be fully and clearly proved by parole that it had been distinctly agreed before the purchase that the money so paid should be considered as a loan from such grantee to a third person. Kendall v. Mann, 11 Allen 15. See also Barnard v. Jewett, 97 Mass. 87.

But the fact that a conveyance is entirely without consideration will not, though aided by a parol agreement, raise an implied trust in the grantee in favor of the grantor. Titcomb v. Morrill, 10 Allen 15.

"Unless by an instrument in writing signed," &c. See Fall River Whaling Co. v. Borden, 10 Cush. 458, 471, 475.

CHAPTER CI.

SPECIAL PROVISIONS RELATING TO ESTATES, TRUSTS, AND
GUARDIANSHIPS.

Executors, administrators, guardians, and trustees required to make annual returns of stocks held by them, &c., to the state tax commissioner. St. 1865, c. 283, s. 2, 14. [St. 1864, s. 4, 13.]

Probate courts may authorize trustees and guardians to mortgage real estate under their control or management, for the purpose of paying sums assessed thereon for betterments or the expense of repairs and improvements thereon made. necessary by such betterments. St. 1869, c. 451.

Administrators and guardians of spendthrifts and insane persons may be authorized to mortgage the real estate of their intestates or wards. St. 1864, c. 212.

Probate courts may authorize executors, administrators, guardians, or trustees to sell and convey or release lots in cemeteries. St. 1869, c. 35.

Probate courts may authorize sale of "wood and timber standing on land held in dower, or on land the use and improvement of which belongs for life or otherwise to any person other than the owner of the fee therein." St.. 1869, c. 249.

Death, Removal, &c., of Executor, &c.

SECT. 1. "To some suitable person." This gives the judge of probate discretionary authority to grant letters of administration to any suitable person, and the next of kin have no right to claim such letters as in the case of an original grant of administration. Russell v. Hoar, 3 Met. 187, 190.

SECT. 2. 66 Evidently unsuitable therefor." As to what constitutes an "evident unsuitableness," see Hussey v. Coffin, 1 Allen 354, 356.- Thayer v. Homer, 11 Met. 104, 110.