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submitted to them plans of the extension and of the mode in which the work was to be performed. The commissioners approved, and the defendant has built in accordance with the plans thus presented and approved. Whether, therefore, the commissioners had power to require the defendant to give them written notice and submit plans to them, and whether they had the power to prescribe the direction, mode, and limits of building, would seem, under the circumstances of the present case, to be a mere moot question. The only matter really affecting the defendant's rights is the claim that is made upon him for compensation for the tide water displaced. That demand, we think, is clearly in derogation of the grant formerly made, and cannot be sustained. Confining ourselves to the precise point before us, namely, whether, in view of the statute of 1851, the commonwealth can require the defendant to make compensation for tide water displaced by a filling made under the grant therein contained, we are of opinion that the ruling of the superior court was right.

The defendant also contends that he had authority, under a license granted by the secretary of war of the United States in June, 1897, to do what he has done, and that the work had already been begun, within the meaning of those words as used in St. 1866, c. 149, and Pub. St. c. 19, § 8, so that the provisions of those statutes are inapplicable. But, in view of the conclusions to which we have come on the questions already considered, It is not necessary to pass upon the questions thus presented.

Judgment for defendant.

(182 Mass. 12)

NASH v. COMMONWEALTH et al. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 2, 1902.) STATES-CONSTRUCTION OF PUBLIC WORKSPROTECTION OF MATERIALMEN-CONDITIONS PRECEDENT-NOTICE CONTRACT REQUIREMENTS-ACTION-DEFENSES-LACHES SALE OF MATERIAL BY SUBCONTRACTOR.

1. Pub. St. c. 16, § 64, providing that when public works are to be constructed, on which liens may attach for materials, the state shall obtain security for the payment by the contractors for all materials used in the construction, which, as it originally appeared (St. 1878, c. 209) was entitled "An act to insure payment for material used in constructing public buildings," etc., and provided that the officers contracting in behalf of the state should provide for the security of those furnishing material for the construction of public buildings and other public works upon which liens might attach if they belonged to private persons, was not intended to protect the state, but the materialmen, and the notice of intention to furnish material, and the other formalities required by Pub. St. c. 191, §§ 3, 15, et seq., in order to perfect and enforce liens against private property. are not required in the case of public works, but when the time arrives when a materialman could, by complying with Pub. St. c. 191, perfect his lien if the works were private property, he at that moment becomes entitled to the protection of the statute.

2. Pub. St. c. 16, § 64, requires the state to obtain security for the payment by public contractors for all materials which may constitute

liens on public works for which they are furnished. Defendant made two separate contracts with the state to construct sections 5 and 6 of certain public works, which contracts, by section 19, provided that the state might retain the money payable to the contractor, and apply it to claims for materials, of which notice was given to the officers in charge. Plaintiff's notice described materials furnished by him as being of a certain value, which was the price of the total amount furnished, and stated that it was furnished to subcontractors, to whom the work had been sublet, for the construction of the works covered by the contracts, and especially section 5. The notice then claimed payment from the state for the price of all the materials, "by virtue of section 19 of the contract for the construction of section 5, and by virtue of all other sections thereof, and all other laws, acts, contracts, and agreements" pertaining to such works and material to his said claim. Held, that the notice was sufficient to cover all the material furnished by plaintiff.

3. A contract for the construction of public works provided that the state might retain the money payable thereunder, and apply it to claims for materials furnished. The contractor sublet the contract, and plaintiff furnished material to the subcontractors, who failed without paying therefor, and the contractor settled with them in full, although by reasonable diligence he might have discovered that they owed plaintiff, for the material. Held, that the settlement was at the contractor's own risk, and plaintiff's failure to bring suit until after such failure and settlement was not such laches as would debar him from claiming payment out of the funds reserved by the commonwealth.

4. A contract with the state provided that the state might retain the money payable thereunder and apply it to claims for materials furnished for the construction. The contractor sublet the work, reserving the right, in case of default by the subcontractors, to complete it at their expense, and to use such of their materials, etc., as might be found on the line of the work. Plaintiff furnished material to the subcontractors, which was approved by the state, and partly used by the subcontractors, who then failed, and transferred the balance of such material by bill of sale to the contractor, who in turn transferred it in the same manner to other subcontractors, who used it in completing the work. The material was on the line of the work when each of the transfers was made, and was never intended for anything except the public works. Held, that there was no such independent sale of the balance of the material as would prevent plaintiff from claim ing payment therefor out of funds retained by the state.

Appeal from superior court, Suffolk county. Action by Willard G. Nash against the commonwealth and others. From a decree in favor of plaintiff, defendant S. Casparis appeals. Affirmed.

Pub. St. c. 16, § 64, provides that when public works are to be constructed, on which liens may attach for materials, the state shall obtain security for the payment by the contractors for all materials used in the construction; and section 19 of the contracts involved in the suit provided, pursuant to the requirement of the statute, that the state might retain the money payable under the contracts, and apply it to claims for materials, of which notice was given to the officers in charge of the work.

A. E. Pillsbury and G. M. Palmer, for appellant. F. C. Nash, for appellee.

HAMMOND, J. After a rescript from this court overruling certain demurrers (174 Mass. 335, 54 N. E. 865), this case was heard upon its merits by three justices of the superior court, who found for the plaintiff in the sum of $4,254.68, and on April 9, 1901, a final decree was there entered for the plaintiff for that amount and costs. The case is now before us upon appeals by the defendant Casparis from this finding and from the de

cree.

The first objection made by the appellant | is that the plaintiff, before selling the cement to Smith & Burden, gave no notice that he intended to claim a lien. In support of this objection, the appellant argues that the statute was passed for the protection and convenience of the commonwealth; that it is a part of the laws relating to finance; that in 1878, when the statute was first passed, it was probably thought that possibly public | liens might be maintained against public works, or at least that claims of such a nature might be made; that the purpose of the statute was to protect the commonwealth against such claims and to provide it with security against possible loss; and that there is no indication in the statute or in the context that it was intended to furnish an absolute guaranty of payment for all material used in public works. The appellant insists that from this view of the statute it follows that in order to prevail the plaintiff must show that he gave notice, as would have been necessary if the aqueduct had belonged to a private person.

We cannot assent to this general view of the purpose of the statute. It first appeared as St. 1878, c. 209, entitled "An act to insure payment of wages earned and for materials used in constructing public buildings and public works." It speaks of "public buildings or other public works

upon

which liens might attach for labor or materials if they belonged to private persons," and it provides that it shall be the duty of the officers contracting in behalf of the commonwealth to provide security for the payment of certain laborers and materialmen. The title would seem to indicate that the purpose of the act was not to protect the commonwealth as a property owner against lienors, but to provide a way in which laborers and materialmen in certain cases could be made more secure as to their pay, and the language of the act implies that the lien laws as then existing were not applicable to public works, and hence the remedy therein provided.

Even if it be assumed that the statute provides only for the payment of such claims as could have been enforced against the property of a private person, it by no means follows that the lienor should have taken the steps required by Pub. St. c. 191, to fix the lien, as in the case of private ownership. If this had been a proceeding to enforce a lien against the property of a private person,

it would have been necessary for the plaintiff, before furnishing the materials, to give notice to the owner of the structure that he intended to claim a lien (Pub. St. c. 191, § 3); and, within 30 days from the time he ceased to furnish the cement, to file the certificate required by section 16 of the same statute, and within 90 days to begin a suit for enforcing the lien. The mere recital of these steps is sufficient to show that it was not intended that they all should apply. Indeed, none of them applies. By virtue of the contract with Smith & Burden the plaintiff was bound to furnish cement for the work, and if the property had been that of a private owner he stood in a position to make his lien complete. It was possible for him to take steps, namely, to give the notice before furnishing the cement, to file the certificate, and to begin the suit within the required time. A lien might therefore have attached. When the contract to furnish the cement was made, the time had come when the plaintiff had it in his power by his own act to take the necessary steps, if the property was that of a private owner, to attach a lien. He was no more required to take the first step than the second or third. By vir tue of his contract he was placed where the lien might attach for materials furnished, and the public work was of such a kind that if the owner had been a private person a lien might attach; and, even if the statute covers only those claims which by the act of the lienor may as against the property of a private person finally ripen into a lien, it is plain that the claim of the plaintiff is within that class. There was no need for notice before the materials were furnished that he intended to claim a lien.

The notice filed in the office of the water board, in compliance with article 19 of the contracts, was sufficient to cover all the cement furnished by the plaintiff. Casparis had contracted to build sections 5 and 6 by two separate contracts, both of which he had sublet to Smith & Burden, to whom, while engaged upon the work under their contracts with Casparis, the plaintiff sold the cement. The notice describes the cement furnished to Smith & Burden as of the value of $3,374.06 (which in fact was the price for the whole amount furnished), to be used in the construction of the aqueduct and waterworks of the commonwealth under the direction of said board, and especially for section 5 thereof, and it sets forth a claim upon the commonwealth for the payment of the whole sum by virtue of section 19 of the contract for building section 5 of the aqueduct entered into by Casparis, and by virtue of all other sections thereof, "and all other laws, acts, contracts, and agreements pertaining to said aqueduct and waterworks, and material to his said claim." In fine, it is a claim to be paid for all the cement furnished upon the aqueduct by virtue of any contract, law, or agreement material thereto.

It is strongly urged by the appellant that the plaintiff has been guilty of laches. We think, however, that there has been no delay which, as a matter of law, should bar the plaintiff. Casparis knew the nature of the contracts between himself and the commonwealth, and between himself and Smith & Burden, and in the exercise of reasonable diligence might have known that the latter had bought cement from the plaintiff which had been delivered at the site of the work and had not been paid for. He must be held to have known that whoever had furnished to Smith & Burden materials for which payment had not been made might make a claim to be paid out of the fund reserved by the commonwealth for the laborers and materialmen under the contracts. If, under the circumstances disclosed in this case, he chose to settle in full with Smith & Burden, he must be held to have done it at his own risk.

The only remaining question relates to the amount for which judgment should be entered. All of the cement was sold to Smith & Burden, and delivered to them at the site of the work, and it was all accepted by the commonwealth, and subsequently was used in the work. Only a part of it, however, was used by them. They failed in December, 1896, and abandoned their contract. At that time more than one-half of the cement was still unused. Upon this failure, Casparis, under his contract with Smith & Burden, had the right, "by contract or otherwise," as he might determine, to complete the work covered by the contract, and charge the expense thereof to them, and to use therefor such of their "materials, animals, machinery, implements, and tools of every description as might be found upon the line of the work." He chose to settle with them, and to make a contract with the Standard Construction Company to complete the work. As to the cement and other materials left upon the line of the work, Casparis testified that he bought them of Smith & Burden, and received from them a bill of sale, and that, upon purchasing the material, "I merely took and wrote a check from the Standard Construction Company, and gave Mr. Badger my own check." (Mr. Badger seems to have been the attorney either of Smith & Burden or of their assignees.) Casparis further testifies that he immediately transferred the property to the construction company, and passed over to it the bills of sale. While the transfer of this cement thus took the form of a sale from Smith & Burden to Casparis, and from Casparis to the Standard Construction Company, it is apparent that in substance the transaction was a taking possession of the cement under the contract and a use of it thereunder. The cement was on the line of the work. Casparis had the right to take possession of it and to use it, giving Smith & Burden credit for it, and he had the right to complete the work, by contract or otherwise, at their expense. It is argued by

him that he settled with Smith & Burden in November, 1896. The court, however, may well have found upon this record that the payment of November 20, 1896, was not a full settlement of all contractual rights existing between the parties, but, at most, was only a payment in full for all demands held by Smith & Burden against Casparis at that time; that the right of Casparis under the contract to take the materials, implements, and tools of every description then upon the line of the work, giving due credit for them to Smith & Burden, still existed; and that, instead of going on and leaving this matter open, he, in February, 1897, made a contract with the construction company to complete the work, and, in the exercise of his rights in this respect under the contract with Smith & Burden, agreed with them as to the price of the cement and tools upon the line of the work, and received the bill of sale. The cement was bought by Smith & Burden for the aqueduct, it was sold for that purpose, and it had been delivered upon the line of the work, and had been accepted by the commonwealth as suitable. It then came into the hands of Casparis, in substance, under the right reserved in the very contract by virtue of which Smith & Burden designated it for the aqueduct, and it I went to the Standard Construction Company, through whom, by virtue of the Smith & Burden contract, Casparis had the right to complete the work by contract, and it was finally used in the work. At no time after the delivery was the cement designated for any other purpose, but during the whole time between the delivery and its use it was in the possession of persons whose rights to use it came substantially from Smith & Burden, and were based upon their relation to the work which existed at the time the cement was delivered. The case differs, therefore, from that of an independent sale. der the circumstances, we think that the plaintiff is entitled to the whole of his claim. Decree affirmed.

Un

(182 Mass. 72)

PIERCE et al. v. KNIGHT et al. NICHOLS v. PIERCE et al. (Supreme Judicial Court of Massachusetts. Norfolk. Sept. 2, 1902.) WILLS-CONSTRUCTION-BENEFICIARIESDISTRIBUTION BY TRUSTEES.

1. Testator's heirs at his death, as well as his presumptive heirs when he made his will, were six married brothers and sisters and two nieces. To all of these except a brother and sister and to more distant relatives he gave annuities payable, if necessary, from the prin cipal, for life, not to exceed 30 years, when the principal was to be divided, a certain amount to three nephews, and the residue equally among his heirs at law. The will disclosed no hostility to any heirs, but showed annuities were not given the brother and sister because they had means of their own, and to their children legacies were given as a token of remembrance. Six days before testator's death he

executed a codicil providing that when the income exceeded the annuities to be paid in any year the surplus should be divided among his heirs at law in such way and proportion as might seem to his trustees most in accordance with his wishes, devoting the sums in preference to purchase of homesteads for the young married persons among his heirs. None of his eight presumptive heirs were young married persons, but they had children who were, and other children of marriageable age. Held, that as it could not be said with certainty that when he executed the codicil he did not expect to survive his brothers and sisters, and leave their descendants as his heirs, it did not appear with reasonable certainty that it was intended the division of surplus income should be among those who would have been his heirs had he died when the division was to be made, so that the division should be among those who were his heirs at his death.

2. Under provision of a will that the trustees shall divide any income in excess of annuities among testator's heirs in such way and proportion as may seem to the trustees most in accordance with his wishes, the trustees need not make the division according to the statute of distribution.

3. Persons born after death of testator do not take under a bequest of a certain sum to each of the children of his nephews and nieces.

Case reported from superior court, Suffolk county; Franklin G. Fessenden, Judge. Case reserved from supreme judicial court, Norfolk county; James M. Barker, Judge.

Two cases, one a petition by J. Homer Pierce and others against Rebecca Knight and others, for instructions; the other, an action by Rose S. Nichols against said Pierce and others. First case reserved on amended bill and answers for consideration of the full court; in the second case from judgment for defendants, and case reserved for full bench. Instructions given in first case. Judgment affirmed in second case.

William D. Whitmore, for plaintiff Rose S. Nichols. James R. Garret, for defendants J. Homer Pierce and others. Frank Brewster, for defendant Wm. Emerson. Chas. K. Cobb, for defendants Rebecca Knight and others. Chas. K. Cobb, R. D. Weston-Smith, and Howard W. Brown, for certain defendants. Thos. J. Homer, pro se.

BARKER, J. These two cases involve the construction of the same will. The first is a petition on the part of trustees for instructions. The principal question in that case is whether a sum of money, the excess of the income of the trust fund for the year ending December 20, 1899, over the annuities payable during that year which the trustees are to divide among the testator's heirs at law, shall go to those persons who answered that description on December 20, 1869, the date of his death, or to those who would have been his heirs at law if he had died on December 20, 1899, the date as of which the trustees are required to make the division. The general rule is well settled. Whall v. Converse, 146 Mass. 345, 348, 15 N. E. 660, and cases cited. But it "is not a rule of substantive law, but a rule of interpretation which has been adopted by the courts as one

means of ascertaining the intention of the testator as expressed in his will, and it never should be used to defeat what from the whole will appears with reasonable certainty to have been his intention." Heard v. Read, 169 Mass. 216, 223, 47 N. E. 778, 781.

In the first place, the application of the general rule to this instance works no inconsistency with the general plan of the testator. When the will and the codicils were executed the persons who were at his death his heirs at law were his presumptive heirs. They were eight in number,-three sisters, three brothers, and two nieces, daughters of a deceased sister. The will discloses no hostility to any of these persons. Two of them -one brother and one sister-were amply provided for, and not in need of assistance from him. The other six were not so situated. One of the six was a sister 61 years old and unmarried. The other five were all married, and three of them at least had children, and some of them had grandchildren. The brother and sister who had means of their own each had children.

While the testator gave no pecuniary legacy to this brother or sister, it appears from the will that this was because they had means of their own, and he did give to each of their children $1,000 as a token of remembrance. His ultimate residuary bequest was to his heirs at law, and whether that meant his heirs at his death or those who should be

his heirs when the residuum should be distributed, each of his eight presumptive heirs had the same chance to share in the residuum by themselves or their issue. None of them was discriminated against save only so far as was necessary to carry out the general scheme of the testator. He gave his estate to trustees, who were to pay out of the principal some 30 legacies, mostly of $1,000 each, some to relatives and friends and others to charities. The trustees were to pay also some 30 or more annuities, beginning with the testator's death, and making the payments quarterly during the lives of the annuitants, with a provision that all annuities should cease on January 1, 1920, if not otherwise terminated before that time. The annuitants included all his brothers and sisters except the two who had means of their own, and the children of all his brothers and sisters except those two, and a few more distant relatives. The annuities to his brothers and sisters were of $2,000 each, and those to the children of his brothers and sisters of $500 each. The annuities which began at his death would require to meet them, so long as all the annuitants should live, about $18,000 a year. His estate, after the payment of legacies from the principal, amounted to no more than $250,000, and he provided that if there was not sufficient income to pay the annuities the deficiency should be paid out of capital. This shows that his ruling thought was to insure the comfort of his annuitants for their lives. His disposition of

the capital was to direct the payment of $150,000 to three of his nephews, $50,000 to each when the annuities should have terminated, and that the residue should be divided equally among his heirs at law, but not before the expiration of 30 years from the day of his death. To give the surplus of the income for any year to those who were his heirs at his death can in no way interfere with the working of this general scheme.

The contention that the surplus income is given to those who would be the heirs if the testator had died when it was to be divided has its chief support in the language of the clause in the first codicil directing it to be divided among the testator's heirs at law. The language of the testator is this: "Whenever the income of the estate exceeds the annuities to be paid in any one year, then the surplus income is to be divided by my executors and trustees among my heirs at law in such way and in such proportion as may seem to them most in accordance with my wishes, devoting the sum or sums in preference to the purchase of land and homestead for the young married persons among my heirs." It is true that there were among the eight persons who were the testator's presumptive heirs when he used this language, and who became his heirs at his death, none who could be called young married persons. This, however, does not make it reasonably certain that the testator did not use the phrases "my heirs at law" and "my heirs" in their usual sense. When the provision was written he had a nephew of 29, who had been married but a few months, and a niece of 29, who had been married but a few days, and another niece of 29, who had been married five years. One sister, who was 70 years old, had an unmarried daughter of 27. One of his brothers, who was 58, had an unmarried daughter of 29, and another brother of 56 had four marriageable children. The death of a brother or sister before that of the testator would place among his heirs the children of the brother or sister, so that the testator at his death well might have young married persons among his heirs. While the codicil in which the clause is found was written but six days before the testator's death, it cannot be said with any cer tainty that when he executed it he did not expect to survive his brothers and sisters, and to leave their descendants as his heirs.

That part of the clause which directs the division of surplus income among the testator's heirs at law by his trustees in such way and in such proportion as may seem to them most in accordance with his wishes might wen De of use if the eight presumptive heirs should become the testator's heirs at law. The death of a brother or of a sister putting an end to the annuity of $2,000 which he or she had enjoyed might cause a surplus of income, and yet leave the family of the decedent in comparative want, which

under that provision might be mitigated by the trustees.

The appointment of three persons as arbitrators in case of any doubts or misunderstandings in reference to the original will or to the codicil in which the provision as to the division of surplus income is contained seems to us to have no decisive bearing upon the present question. If such a board was thought by the testator to be advisable because he meant by the words "my heirs at law" a body of persons changing as the trust continued, it would have been evident to him that the board might have more to do as the body increased in numbers with the lapse of time. But the youngest of the arbitrators when appointed was of the age of 51. They well might live to settle any doubts or misunderstandings arising upon the death of the testator's brothers and sisters, but not more.

While with such a trust there might be in any year a surplus of income, larger and increasing surpluses would be natural in the later years, and it is urged that the testator would not have directed his trustees to divide them among persons who in the ordinary course of nature would have died long before the division. But, even if we should assume that the division intended must have been only among the eight persons who were the presumptive heirs, it was not directed to be an equal or a per stirpes division, but was to be made in such way and in such proportion as might seem to the trustees most in accordance with the testator's wishes. The will shows that his prevailing wish was to provide for the decent support of the families of those of his brothers and sisters who were not amply otherwise provided for. There is no reason to suppose that the testator anticipated that any of his presumptive or possible heirs at law would leave unreasonable wills or die insolvent. It cannot be said that a direction to divide surplus income from time to time among the testator's actual heirs in such way and in such proportion as may seem to trustees most in accordance with the testator's wishes would not seem to him as well calculated to carry out his chief wish as a direction to distribute it directly among those who would have been his heirs at law had he died when the division was to be made.

We are of opinion that it does not appear with reasonable certainty to have been the intention of the testator to direct that the surplus income should be divided among those persons who would have been his heirs at law if he had died when the division was to be made. The petitioners are to be instructed that the testator, by the terms "my heirs at law" and "my heirs" as used in his first codicil, meant those persons who were his heirs at law at the time of his death.

This conclusion renders immaterial all of the petitioners' other requests but one, namely, whether it is their duty to divide the

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