Day v. Lamb, 6 Gray, 523. The plaintiff, not having pursued the course provided by law, must abide her election, and cannot now prove her claim for the balance against the insolvent estate. The proof presented by her to the court of insolvency was not a correct statement of her claim. It is the form prescribed by Pub. St. c. 157, § 29; and the creditor offering the same must either be an unsecured creditor, or, if secured, must have disposed of the security as required by law. "No claim shall be allowed unless all the statements set forth in the oath are true." It follows that, in either view of the case, the claim should be disallowed.

Reed & Dean, for plaintiff.

It is claimed that the plaintiff is barred from proving her claim by Pub. St. c. 157, §§ 26, 28, as a secured creditor. The bank, first mortgagee, never submitted itself to the jurisdiction of the court of insolvency, but, proceeding under its power of sale, sold the property for more than enough to pay its claim and expenses of sale. The balance the bank was bound by its mortgage to pay "the grantor, his heirs, executors, administrators, or assigns." The plaintiff was his assign; and, as such,-there being no question as to the validity of her mortgage, had an absolute right to such balance. Smith v. Warner, 133 Mass. 71, does not apply; the facts materially differing. If there was any power in the court of insolvency to restrain such sale,-which it is believed does not exist,-it was the duty of the assignee, if the interests of the estate required it, to intervene. But he did nothing. Franklin Co. Bank v. Greenfield Bank, 138 Mass. 515. It presented a case to which the statute had no application. In Wilson v Bryant, 134 Mass. 291, 296, it is said: "If, therefore, the condition of the statute cannot be complied with in any particular case, that is a reason for believing that the statute was not intended to include such case." When the reason of the law ceases, the law ceases. By Pub. St. c. 157, § 26, creditors may prove their claims at any meeting, making no exception in the case of those holding security. Perfectly legitimate considerations may deter a creditor from presenting his claim until the final meeting. Meantime, if he holds a junior mortgage, the creditor holding the first mortgage may, without coming into court, sell the mortgaged property, and thus change entirely the rights and security of the junior mortgagee. It is easy to suppose cases where, by no possible promptitude by a junfor mortgagee in the court of insolvency, could he forestall a sale by the first mortgagee. Is he, therefore, to lose his right to prove his claim? Many of the cases not coming within the strict terms of the statute have been decided upon equitable considerations. Amory v. Francis, 16 Mass. 308; Hunnewell v. Goodrich, 3 Cush. 469; Richardson v. Wyman, 4 Gray, 553; Wilson v. Bryant, 134 Mass. 291; Franklin Co. Bank v. Greenfield Bank, 138 Mass. 515; Bristol Co. Bank v. Woodward, 137 Mass. 412. The equities of this case are all in favor of the plaintiff.

FIELD, J. The first mortgagee rightfully sold the mortgaged land, and conveyed it to the purchaser. The petitioner's second mortgage was thereby converted into an equitable lien upon the proceeds of the sale, after the payment of the amount due under the first mortgage. The surplus, which amounted to $337.42, was rightfully paid the petitioner. While she held a mortgage upon the property of the insolvent debtor, she must proceed in accordance with Pub. St. c. 157, § 28; but her equitable lien upon the surplus of the proceeds of the sale, while it was in the hands of the first mortgagee, was not, we think, such a lien as is described in that section, and the provisions in the section for a sale of the property held as security, or the delivery of it to the assignee, are not applicable to an equitable right to receive or to recover this surplus. She has not disposed of any property of the debtor on which she held security, or of her security, in violation of that section, and her case is thus distinguishable from Smith v. Warner, 133 Mass.

71. She could not prevent the first mortgagee from selling the land, except by redeeming it from the first mortgage, and it was not her duty to do this. She was not required to prove her claim at the first meeting, or before she offered it for proof, and then she held no security. Her right must be determined by those equitable considerations which have been acted upon in cases not within the statute, and we think that these require that she should be allowed to prove her debt after deducting what she has received. Wilson v. Bryant, 134 Mass. 291; Franklin Co. Bank v. Greenfield Bank, 138 Mass. 515.

Exceptions sustained.

(143 Mass. 409)

BASCOM . DEMPSEY.

(Supreme Judicial Court of Massachusetts. Middlesex. January 10, 1887.)

TRESPASS TO LAND-DECLARATION-POSSESSION.

In an action of trespass quare clausum, it is not sufficient for the plaintiff to show that his tenants were in possession. He must show possession in himself, unless his declaration alleges an injury to the reversion.

Trespass quare clausum fregit. The declaration alleged that the defendant forcibly entered the plaintiff's close, in Lowell, and carried away the soil thereof, built a building thereon, and broke down and injured a privy-vault thereon. The trespass complained of was committed in June, 1885. The evidence as to the trespass tended to prove that the defendant dug holes, and built a part of a building, on the premises; and, in excavating for the foundation of the building, he took away the soil from one side of, and undermined, a large privy-vault, built of brick and cement, and some six feet deep, and situated on the plaintiff's premises, near the line of the defendant's premises, and cracked the walls of the same, and caused the contents to leak out, and necessitated its repair by the plaintiff, by lining the outside with brick and cement; that in consequence of such breaking of the vault, and its leaking, the plaintiff, before repairing it, had been complained of in the Lowell police court for maintaining it in a leaky condition, had been found guilty, and sentenced to pay a fine and costs. The premises consisted of a block of stores, fronting on Merrimack street; and in the rear of the stores was an open yard, on a part of which the holes were dug, and the building complained of built, and in which was the privy-vault before described. The yard and privy were used in common by the occupants of the stores. At the time of the trespass, the stores were rented to different tenants by the plaintiff, and the tenants were then in actual possession. At the trial in the superior court, before MASON, J., the plaintiff testified that he had no possession of the premises, except through his tenants. There was no evidence as to the character of the tenancy. After the evidence was in, the court, at the request of the defendant, ruled that the action could not be maintained, on the ground that the plaintiff had introduced no sufficient evidence of possession, and ordered a verdict for the defendant, and the plaintiff alleged exceptions. W. H. Anderson, for plaintiff.

The plaintiff could not well maintain the action for the injuries to his reversionary interest, although the premises were in the possession of the tenants. Starr v. Jackson, 11 Mass. 519; French v. Fuller, 23 Pick. 106; Hastings v. Livermore, 7 Gray, 194. See Sumner v. Tileston, 7 Pick. 198. The case should have gone to the jury, and they should have determined by their verdict, under proper instructions from the court, as to the distinction between injuries to the possession and the reversion,-whether there was any injury to the reversion, and, if so, how much. Hastings v. Livermore, 7 Gray, 194; Baker v. Sanderson, 3 Pick. 348.

Pratt & Quinn and John Marren, for defendant.

The gist of the action-trespass quare clausum-is the violation of the plaintiff's possession. Whatever allegations there may be in the declaration of wrongful acts of such character as would give a cause of action to a reversioner, are alleged merely as aggravation, and not in such manner as to render them the foundation of the suit. Knapp v. Slocomb, 9 Gray, 73, 75; Phelps v. Morse, Id. 207; Gilbert v. Thompson, 9 Cush. 348, 350. The case is even stronger than those below cited, and comes fairly within the rule there laid down. Woodman v. Francis, 14 Allen, 198; Gooding v. Shea, 103 Mass. 360, 362; Dearborn v. Wellman, 130 Mass. 238.

FIELD, J. The ruling of the court was correct. If the plaintiff was not in possession, "except through his tenants," who "were then in actual possession," and the acts of the defendant were an injury to the reversion, the declaration should have so alleged the fact. Woodman v. Francis, 14 Allen, 198; Gooding v. Shea, 103 Mass. 360; Dearborn v. Wellman, 130 Mass. 238. Exceptions overruled.

(Supreme Judicial Court of Massachusetts. Suffolk. January 8, 1887.) WILL-PROBATE CONTEST-CODICIL-UNDUE INFLUENCE-ERRONEOUS CHARGE-VERDICT. In a contest as to the validity of a codicil to a will, where it is attacked as procured by undue influence, a charge which fails to instruct the jury that they may find that a part was procured by undue influence, and a part not so procured, is not subject to exception where the jury, by a verdict in favor of the codicil, have found that no part of it was so procured.

Appeal from the probate of the will of Eliza Appleton and two codicils thereto. At the trial in the supreme court before GARDNER, J. the jury rendered a verdict sustaining the will and both codicils, and the appellant appealed. The facts are stated in the opinion.

Augustus Russ and Dudley A. Dorr, for appellant.

No exception to the refusal to allow the amendment of the issue can be sustained. Davis v. Davis, 123 Mass. 590; Dorr v. Tremont Nat. Bank, 128 Mass. 349, 356. The appellant contends that where a portion of a will has been introduced by fraud or undue influence, that portion may be rejected, and probate granted of the remainder, if the clauses are severally without injury to the sense. Rhodes v. Rhodes, 7 App. Cas. 192; S. C. 35 Moak, 134, 139; Morris v. Stokes, 21 Ga. 552; Hegarty v. King, 7 Ir. Ch. Div. 18; Smith v. Fenner, 1 Gall. 170; Florey v. Florey, 24 Ala. 241, 247, 248; Harrison's Appeal, 48 Conn. 202; Trimlestown v. D'Alton, 1 Dow & C. 85, 95; 1 Redf. Wills, 519; In re Welsh, 1 Redf. 238; Billinghurst v. Vickers, 1 Phillim. 187. Partial probates are common both in this commonwealth and elsewhere. Dean v. Littlefield, 1 Pick. 239; Holman v. Perry, 4 Metc. 492; Heath v. Withington, 6 Cush. 497; Beard v. Beard, 3 Atk. 72; Bigelow v. Gillott, 123 Mass. 102, 105; Linnard's Appeal, 93 Pa. St. 313; Smith v. Fenner, 1 Gall. 170. The petitioner did not make out a prima facie case. Marx v. McGlynn, 88 N. Y. 357, 370, 371; Riddell v. Johnson, 26 Grat. 152; Daniel v. Hill, 52 Ala. 430; Post v. Mason, 91 N. Y. 539; Lake v. Ranney, 33 Barb. 49; Swenarton v. Hancock, 22 Hun, 38; Terhune v. Brookfield, 1 Redf. 220; Limburger y. Rauch, 2 Abb. Pr. (N. S.) 279; Yardley v. Cuthbertson, 15 Phila. 77; Hegarty v. King, 7 Ir. Ch. Div. 18; Woodbury v. Woodbury, 141 Mass. 329; S. C.5 N. E. Rep. 275; Gibson v. Russell, 2 Younge & C. 104; Cooke v. Lamotte, 15 Beav. 234; Hoghton v. Hoghton, Id. 278; Blackie v. Clark, Id. 595; Ashwell v. Lomi, 4 Moak, 700; Crispell v. Dubois, 4 Barb. 393; Lansing v. Russell, 13 Barb. 510. The testimony of the executor to the conduct of the petitioner was competent, and should have been admitted. Fairchild v.

Bascomb, 35 Vt. 398; Crocker v. Chase, 57 Vt. 413; Lewis v. Mason, 109 Mass. 169, 174; Morris v. Stokes, 21 Ga. 552, 569; Beall v. Cunningham, 1 B. Mon. 399; Rogers v. Rogers, 2 B. Mon. 324; Brown v. Moore, 6 Yerg. 272. D. C. Linscott, for petitioner.

The refusal of a justice of this court to submit a particular issue of fact to a jury cannot be revised by bill of exceptions, but only by appeal. Davis v. Davis, 123 Mass. 590, 594; Stockbridge v. Hudson, 102 Mass. 45; Brooks v. Tarbell, 103 Mass. 496; Ross v. New England M. Ins. Co., 120 Mass. 113; Newell v. Homer, Id. 277, 281. The refusal of the judge to instruct as to the separate part of the codicil was correct. Davis v. Davis, supra; Barker v. Comins, 110 Mass. 477; Shailer v. Bumstead, 99 Mass. 112, 131; Stockbridge v. Hudson, 102 Mass. 45. By electing to proceed, the respondent waived all right to except. Wetherbee v. Potter, 99 Mass. 354; Bradley v. Poole, 98 Mass. 179; Manning v. Albee, 14 Allen, 8; Barrett v. Malden & M. R. R., 3 Allen, 101; Morgan v. Ide, 8 Cush. 420; Bassett v. Porter, 4 Cush. 487; Hurley v. O'Sullivan, 137 Mass. 86, and cases.

The testimony of the witness Greenleaf was properly excluded. The devisees under a will have a community of interest, but not a joint interest. Shailer v. Bumstead, 99 Mass. 112, 127; Phelps v. Hartwell, 1 Mass. 72; Greenl. Ev. § 176; Clark v. Morrison, 25 Pa. St. 453; Titlow v. Titlow, 54 Pa St. 222; Osgood v. Manhattan Co., 3 Cow. 612; Dan v. Brown, 4 Cow. 492; Hauberger v. Root, 6 Watts & S. 431; Thompson v. Thompson, 13 Ohio St. 358; Blakey v. Blakey, 33 Ala. 616; Bovard v. Wallace, 4 Serg. & R. 499; Nussear v. Arnold, 13 Serg. & R. 328; Gray v. Palmers, 1 Esp. 135; Hackley v. Patrick, 3 Johns. 536; Smith v. Ludlow, 6 Johns. 267, 269; Whitney v. Ferris, 10 Johns. 66.

DEVENS, J. After withdrawing any opposition to the will and first codicil, the contestant moved to have the issue as to alleged influence of the petitioner amended, by adding the words "or any part thereof" to the inquiry whether the testatrix was "induced by the fraud or undue influence of William M. Ogden to execute said second codicil." This motion was refused. If such refusal was erroneous, any remedy that exists is by appeal only. Davis v. Davis, 123 Mass. 590, 594; Dorr v. Tremont Nat. Bank, 128 Mass. 349, 356. This proposed amendment to the issue is not important, and the appellant concedes it to be immaterial, unless he was entitled to the instruction to the jury requested, which was that, under the issue as framed, "so much of said codicil as contained a bequest to said William M. Ogden might be stricken out, and the remainder of the codicil established, if, upon the evidence, they should so find." This request was refused. Upon the issue as to the procurement of the second codicil by fraud or undue influence of Ogden, the judge did not instruct the jury that they must find that it was not, unless they were satisfied that all the bequests were obtained by fraud or undue influence. The jury are to be satisfied, he states in his charge, that "Dr. Ogden exercised this fraud and this undue influence upon Mrs. Appleton to bring about this bequest to him,-to bring about the execution of the codicil as it is drawn." He explains fully, and in a manner not objected to, to the jury the meaning of fraud and undue influence, and concludes by saying. that, if the jury find the disputed codicil was executed according to the forms of law, they are to determine "whether she [the testatrix] was influenced,whether she was induced to make it by the fraud and undue influence of Dr. Ogden."

The refusal of the judge to give the instruction requested by the contestant cannot have prejudiced him. If the contestant's view of the law is correct, had the conduct of Ogden been fraudulent, or had he been guilty of undue influence, the codicil would have been partially set aside only. The ruling of the judge upon the issue presented, fairly interpreted, required a verdict in

the contestant's favor if there had been any fraud or undue influence on the part of Ogden, although it affected Ogden's legacy only. Had the verdict been otherwise than as it was, it may be that the executor, or the other legatees under the codicil, as their interests are undivided and distinct, would have ground for complaint if they had brought the matter to the attention of the judge. That, under certain circumstances, there may be a partial probate of a will,—as where certain property of which it disposes is properly subject to it, while other property of which it assumes to dispose is not,-cannot be controverted. Deane v. Littlefield, 1 Pick. 239; Holman v. Perry, 4 Metc. 492; 1 Redf. 519. But we have no occasion here to discuss the question whether, or under what circumstances, a part of a will or codicil could be rejected, and the remainder established, as in the case at bar the jury must have found that there was no fraud or undue influence in regard to the second codicil.

The other questions presented by the appellant's exceptions were not insisted upon at the argument, and are not considered. Exceptions overruled.

(143 Mass. 389)

LAVERY and another v. EGAN.

(Supreme Judicial Court of Massachusetts. Suffolk. January 10, 1887.) DESCENT AND DISTRIBUTION HUSBAND OF LIFE-TENANT WITH CONTINGENT REMAINDER IN FEE-STATUTORY HEIR-PUB. ST. MASS. CH. 124, 1, AMENDED BY ST. 1881, CH. 112, 1.

Under a devise "to A., B., C., and D., (grandchildren of the testatrix) of the use, income, and improvements of all my real estate of which I shall die seized, for their respective lives, in equal shares, and, when they shall respectively decease, to their respective heirs," etc., A., B., C., and D. take, as tenants in common, life-estates, with contingent remainders to their heirs; and, on the death of A., her husband is entitled, as heir, by Pub. St. Mass. c. 124, 31, as amended by St. Mass. 1881, c. 112, ? 1, to her joint interest in fee, she leaving no issue, and her interest being less than $5,000 in value.

Writ of entry. The tenant claimed title under the seventh clause of the will of Ann Lavery, which was as follows: "(7) I give, devise, and bequeath to my said four grandchildren, Susan M. Lavery, John W. Lavery, Francis J. Lavery, and Alphonso L. Lavery, the survivor or survivors of them, the use, income, and improvement of all the rest and residue of my estate and property, whether real, personal, or mixed, of which I shall die seized or possessed, for and during their respective lives, in equal shares, and, when they shall respectively decease, to their respective heirs, executors, administrators, and assigns, forever." After a hearing in the superior court upon facts, the nature of which appear in the opinion, the court ordered judgment to be entered for the tenant for three undivided fourth parts of the demanded premises, and for the demandant for one undivided fourth part; and the tenant appealed to the supreme judicial court.

H. J. Boardman and S. H. Tyng, for tenant.

The tenant contends that the devise is void. "It is a well-settled rule of real property that a limitation to an heir in a devise is void, and that the heir cannot be a purchaser." Co. Litt. 226; Powell, Dev. 427, 430; 6 Cruise, Dig. (Greenl. Ed.) 151; 1 Jarm. Wills, 67; Ellis v. Page, 7 Cush. 161, 163; Sears v. Russell, 8 Gray, 86, 93; Sedgwick v. Minot, 6 Allen, 171; Pierce v. Smith, 13 Allen, 42; 2 Washb. Real Prop. (3d Ed.) 526, 558, 562. That if the devise be not void for the reasons stated, the devisee took the fee because of the use of the words "heirs and assigns" in the devise. Bacon v. Woodward, 12 Gray, 376, 381, 382; Brown v. Merrill, 131 Mass. 324, 325; Kelley v. Meins, 135 Mass. 231, 234. It is true the words "for and during their respective lives" are used, but this being repugnant to the subsequent words, "heirs and assigns," the latter should prevail. Dawes v. Swan, 4 Mass. 208, 215. This construction is also in accordance with the principle