been so called, it is enough if the members receive in some form reasonable notice of the mayor's determination. I think the logic of the opinion makes it immaterial whether the notice is given orally or in writing, although it has said that the law "implies that the notice should be either printed or written." It will hardly be contended that more effect should be given to this implication than to the express statement of the statute, that the calling of a special meeting shall be “by causing notice to be left at the usual place of residence of each member," etc. If the statute might be departed from as to the mode of calling special meetings, provided reasonable notice of the time and place of an intended meeting in some way reached every member of the board, I think that doctrine would not apply when the substituted notice failed to reach one or more of the members, as it did in this case. Kynaston v. Shrewsbury, 2 Strange, 1051, and cases supra. It seems to me that a decision in favor of the petitioner must stand upon the ground that a mayor, in calling a special meeting, may wholly disregard the method prescribed by the statute, and may adopt any other method which pleases him, if he gets timely notice of his purpose to most of the members, and if it is shown that those who receive no notice were so situated that they could not have attended the meeting if it had been called as required by the statute. The questions arising under a practice of this kind would necessarily be decided on oral testimony. I do not think such a decision is allowable under the authorities, or that it gives effect to the intention of the legislature. In my opin. ion the meeting of the city council was not legally called, and the petition should be dismissed.

(156 Mass. 454)

TOWNSEND et al. v. ToWNSEND et al. (Supreme Judicial Court of Massachusetts. Norfolk. June 20, 1892.) CONSTRUCTION OF WILL-DESCRIPTION OF DEVI

SEES.

Testator left surviving him a son and a daughter by his first wife, M., neither of whom lived with testator, and of whom the son was married and had two children, who lived with him. Testator also left surviving him his second wife, E., and a son by this wife, who was unmarried, and lived at home. The will provided that the residue of the estate should be "equally divided between the families of" testator's two wives. Held, that the intention of the testator was to divide the residue of the estate equally between the families by his two wives, as constituting two classes of distributees, each family constituting a class, and that the grandchildren did not share in the distribution.

Case reserved from supreme judicial court, Norfolk county; OLIVER WENDELL HOLMES, Jr., Judge.

Bill in equity for the construction of the residuary clause of the will of John Townsend by Charles T. S. Townsend and others against Frank A. Townsend and others. Ordered that the residue of the estate be divided, one half to Frank A. Townsend, one fourth to Henry H. Townsend, and one fourth to Caroline F. Townsend.

F. E. Snow, for John and Gracy Town

send. C. T. Russell, Jr., for F. A. Townsend. Asa French and Geo. E. Cochrane, for H. H. and Caroline F. Townsend.

FIELD, C. J. This is a bill in equity for the construction of the will of John Townsend. The will was executed on November 1, 1890, and the testator must have died soon after this, as the will was proved on July 17, 1891. The testator had been twice married. His first wife, Matilda," died in the year one thousand eight hundred and forty-three," and by her he bad two children who survived him, namely, Henry H. Townsend and Caroline F. Towsend. Henry had married before his father's death, and his wife, Agnes, was living at that time, and they had two chil dren, John and Gracy Townsend, who were living "with their parents as one household, both at the date of the will and at the time of the testator's death." Henry and his wife, with their children, were not living with the testator when the will was made, or when the testator died, and at both these dates their children "derived their support from their father." In December, 1891, when the agreed statement of facts was filed, John was "about twenty years old" and Gracy "about sev. enteen years old." Caroline F. Townsend has never married, and "at the date of the will and the time of the death of her father was living alone at Dorchester," Mass. She must have been at least 47 years old when the will was made, as her mother died in 1843. The testator married a second time, and his second wife, Eliza Ann, survived him, and by her he had one son, Frank A., who also survived him, and, "at the time of the decease of the said John Townsend, his wife, Eliza Ann Townsend, and his son, the said Frank A. Townsend, resided with the said Townsend at his house in Brookline." They probably resided with him when the will was made, although this does not distinctly appear. Frank A. Townsend was of full age, and has never married. The widow, Eliza Ann Townsend, pursu ant to Pub. St. c. 127, § 18, waived the provisions made for her in the will, and in her answer to the bill "claims nothing under the provisions of the will."

By the twelfth article of the will the testator provided "that after all my just debts and expenses, and all the herein before mentioned legacies have been fully paid, the remainder of my estate, if any, shall be equally divided between the families of John and Matilda and John and Eliza Ann Townsend." There is a large residue, and conflicting claims are made with respect to it upon the administrators with the will annexed of the estate. Frank A. Townsend contends that he is entitled to one half of the residue. Henry H. and Caroline F. Townsend contend that they are such entitled to one third of the residue. The guardian ad litem of John and Gracy Townsend contends that the residue should be distributed per capita among Henry H., Caroline, John, Gracy, and Frank A. Townsend, one fifth to each, or, if the residue is divided, one half to the family of John and Matilda and one half to the family of John and

Eliza Ann; that then the grandchildren of the testator, John and Gracy, are each entitled to one fourth of one half of the residue. Disregarding small legacies, the general scheme of the will is that $60,000 is given in trust for the widow, the income to be paid to her; $100,000 is given to Frank A. Townsend, and the same amount to Henry H. Townsend; $45,000 is given in trust for Caroline F. Townsend, the income to be paid to her; and it is provided that "at her decease the amount held by the trustee or trustees_shall be paid, one half to Henry Herbert Townsend, and the other half to Frank Albert Townsend, or their heirs." Small legacies are given to the grandchildren, John and Gracy Townsend. By the sixth and seventh articles small legacies are given to the brother of the testator, to his sister, to the son of a brother, to the widow of Joseph Townsend, and to the widow of William B. Townsend, whose relationship to the testator does not appear, and it is provided that "in case of the decease of the parties named in items 6 and 7, or either of them, then their proportions shall be equally distributed between the families of John and Matilda and John and Eliza Ann Townsend." The language of the will shows that it was not drawn by any person learned in the law. The different meanings of the word "family" were discussed in Dodge v. Railroad Co., 154 Mass. 299, 28 N. E. Rep. 243. See, also, Bowditch v. Andrew, 8 Allen, 339; Poor v. Insurance Co., 125 Mass. 274; Bates v. Dewson, 128 Mass. 334; Bradlee v. Andrews, 137 Mass. 50; Phelps v. Phelps, 143 Mass. 570, 10 N. E. Rep. 452; Marsh v. American Legion of Honor, 149 Mass. 512, 21 N. E. Rep. 1070. It is obvious that the testator did not use the word "family" in the sense of inclnding only the persons actually living with him as a part of his household at the time when the will was made. His wife, Eliza Ann, and her son, Frank A.. were probably a part of his family in this sense of the word, but his children by his wife, Matilda, and their children, were not. Still, in whatever sense he used the word, we think that it is reasonably clear that he recognized that he had two families, one by his first wife and one by his second, and that he intended to divide the residue equally between these two families as constituting two classes of distributees, each family constituting a class. See Holbrook v. Harrington, 16 Gray, 102; Balcom Haynes, 14 Allen, 204; Bassett v. Granger, 100 Mass. 348; Haskell v. Sargent, 113 Mass. 341.

V.

The remaining questions are whether, by the "family of John and Matilda Townsend," the testator meant their children, or all their descendants or issue, and whether, if he meant descendants, he also meant that the descendants should take per stirpes or per capita. It was contended that by "family" the testator meant "children," and it was also contended that if he meant "children," then all the children of the two families should take per capita, and Barnes v. Patch, 8 Ves. 604, was cited. We have already said that in whatever sense the testator used the word, and whether he used it in the same

sense as applied to the two families or not we think he regarded each family as constituting a separate class. Whether in the family of John and Eliza Ann Townsend he included Eliza Ann has become immaterial, as she has waived the provisions of the will. Plympton v. Plympton, 6 Allen, 178. If by the "family" of John and Matilda Townsend the testator meant their children, then the grandchildren are excluded; if he meant their descendants or issue or heirs living at his death, then, according to the principle of our decisions, we are of opinion that the grandchildren must also be excluded, as their father was then living, and the descendants' issue or heirs would take by right of representation. Jackson v. Jackson, 153 Mass. 374, 26 N. E. Rep. 1112; Hills v. Barnard, 152 Mass. 67, 25 N. E. Rep. 96; Bassett v. Granger, ubi supra. The result is that the residue is to be divided one half to Frank A. Townsend, one fourth to Henry H. Townsend, and one fourth to Caroline F. Townsend. So ordered.

(154 Mass. 210)

BRANDE et al. v. GRACE et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 27, 1891.)

LANDLORD AND TENANT - BUILDING OF ADDITION BY LESSOR-INJUNCTION.

1. Where rooms on the second floor, and in the front of a building, between which and the street there is a space used, though not dedicated, as a part of the sidewalk, are leased for business purposes, "with all the rights and privileges thereto belonging," there is an implied grant of a right to an unobstructed view of the street, and the lessor cannot, by adding to the front of the building, interpose other rooms between the street and those leased.

2. Where an addition to a building has been almost completed after the erroneous refusal of an injunction sought by the lessee of rooms therein, on the ground that the addition would obstruct the view of the street in violation of his rights under the lease, the supreme judicial court, to which the case has been reported, will not, if the lease has only a short time to run, grant a mandatory injunction compelling the lessor to pull down the addition, as that would be an unnecessary destruction of property, but the lessee's remedy will be confined to compensation in damages.

Report from superior court, Suffolk county; MASON, Judge.

Bill in equity by Malon E. Brande and others against James J. Grace and the American Protective League to enjoin defendants from making an addition to a building in which rooms had been leased to plaintiffs. The injunction was refused, and the case was reported for the determination of this court. Decree for plaintiffs that they recover damages.

A. Russ and D. A. Dorr, for plaintiffs. R. M. Morse, Jr., and J. M. Olmstead, for defendant corporation.

ALLEN, J. The determination of this case depends upon the proper application of rules of law, which of themselves are simple. "The grant of anything carries an implication that the grantee shall have all that is necessary to the enjoyment of the grant, so far as the grantor has power to give it. Salisbury v. Andrews, 19 Pick. 250, 255. And in order to deter

mine what is thus granted by implication, the existing circumstances, and the actual condition and situation of that which is granted, may be looked at. Salisbury v. Andrews, 19 Pick. 250, 255. The premises leased to the plaintiffs were described as "the rooms numbered 1, 2, 3, and 4, located on the second floor of building numbered 181, and located on Tremont street, in said Boston, with all the rights and privileges thereto belonging." These rooms included all the front rooms in the second story of the building. The building was set back 12 or 14 feet from the line of the street, and the space between the building and the line of the street had been used as a part of the sidewalk, but never dedicated to the public. The rooms were there. fore front rooms, from which the view of the street was unobstructed. The plaintiff hired the rooms for business purposes. The alterations which the defendants were proceeding to make would have the effect to interpose another room between the leased rooms and the street, and the plaintiff's rooms would no longer be the front rooms of the building. Alterations of this character are inconsistent with the rights of the plaintiffs under this lease. It could not have been understood at the time the lease was given that a right to make such alterations was reserved. It is not like the case of the erection of a building, either by a stranger or by the lessor, upon an adjoining lot, which is adapted to have a separate building erected upon it. In this case the lessor, or other holding his title, seeks to make such changes in the building itself which contains the leased rooms as will essentially change their character. The subject of the lease is so materially changed that the rooms will no longer answer to the description of them in the lease, when the condition and situation of the premises are also looked at. The lease carries with it an implication that the lessor should not thus proceed to impair the character and value of the leased premises. Salisbury v. Andrews, 128 Mass. 336; Doyle v. Lord, 64 N. Y. 432. We do not regard this view of the rights of the parties as at all inconsistent with the decision in Keats v. Hugo, 115 Mass. 204, and other cases, which hold or intimate that the necessity must be pretty plain in order to warrant the implication of a grant. In this case it is plain that the alterations are inconsistent with the rights of the plaintiffs under their lease. Under this state of things the defendants might properly have been enjoined from proceeding with their proposed alterations. But the learned justice before whom the case was heard in the superior court took a different view of the rights of the parties, relying, it is said, upon Keats v. Hugo, 115 Mass. 204; and accordingly the plaintiffs' prayer for an injunction was refused. The defendants thereupon proceeded with the work, until now it is completed, so far at least as the external structure of the building is concerned. The lease to the plaintiffs will expire on the last day of February next, and, if the defendants were now ordered to pull down their structure, they might then restore it. The rules under

1. Under Pub. St. c. 70, § 2, providing that commissioners of pilots for the harbor of Boston shall be appointed by the governor, with the advice and consent of the council, "and shall first be recommended by the trustees of the Boston Marine Society" unless they "refuse, decline, or are unable to make the recommendation," where, five days before the expiration of the term of a com. missioner, another person is recommended by the trustees, the reappointment of the commissioner previously made by the governor and council is unauthorized.

2. Such commissioners are within Acts 1887, c. 364, providing that officers appointed by the governor, with the advice and consent of the council, hold their offices until their successors have been duly appointed and qualified.

Following is an order passed by the governor and council, December 16, 1891, and transmitted to the justices of the supreme judicial court, together with their answer thereto of December 31, 1891:

"Whereas, a question has arisen before the governor and council as to the legality of the appointment of a commissioner of pilots for the harbor of Boston, made in July, 1890, and to the duty of the governor and council now to make an appointment to said office, which they have been formally requested to do by the Boston Marine Society, in this commonwealth, a copy of which is annexed; under which eircumstances certain important questions of law arise, bereto subjoined, of which an early determination is desirable; it is therefore ordered that the opinion of the honorable justices of the supreme judicial court be, and it is hereby, requested as to the law arising upon the following facts: Under Pub. St. c. 70, § 2, commissioners of pilots for the harbor of Boston are to be appointed by the governor and council, ‘and shall first be recommended by the trustees of the Roston Marine Society,' unless they 'refuse, decline, or are unable to make the recommendation.' A rule adopted by the executive council for the regulation of its proceedings, and existing in July, 1890, provides that no nomination shall be acted on by the council until seven days after it shall have been made; and another rule then existing provides that said rule may be suspended by vote of five members at a regular meeting. The term of office of Thomas P. Howes, a commissioner of pilots for the harbor of Boston, expired by limitation on July 13, 1890. On the 8th day of said July, the trustees of the Boston Marine Society duly

recommended for said office of commissioner of pilots, (and forwarded such recommendation on the same day,) to the governor and council, Edwin D. Wadsworth, of Milton; and they did not and have not recommended any other person for the successor of said Howes in such office. On July 1, 1890, the governor nominated said Howes for the said term, which would begin on the 14th of July, 1890, and at the next meeting of the council, on the 8th day of said July, the nomination of said Howes was confirmed, the governor and council at that time not knowing of the recommendation of said trustees. Said Howes had continued to perform the duties of the office to the present time. The governor and council are advised that it is doubtful if the legality of said appointment can be determined by proceedings or information in the nature of quo warranto. And the questions here presented are: First. Was Thomas P. Howes, on the above facts, legally ap pointed, in July, 1890, commissioner of pilots for the term beginning July 14, 1890? Second. Does chapter 364 of the acts of 1887, relating to certain officers, apply to the pilot commissioners for the harbor of Boston, and if so, with what effect in the case stated?"

DEAR SIR: On the 13th day of July, 1890, the term (of three years) of the office of pilot commissioner for the harbor of Boston, which had been held by Thomas P. Howes, expired. On the 8th day of the same month, (four days before the expiration of said term,) the trustees of the Boston Marine Society, pursuant to section 2, chapter 70, of the Public Statutes, duly forwarded to his excellency, the governor, their recommendation of Captain Edwin D. Wadsworth, of Milton, for appointment to said office to succeed said Howes; and said trustees have not recommended any other person therefor. They are advised that no person has been legally appointed thereto, and, except as its duties may be performed by said Howes holding over, the office is now vacant. They respectfully ask that their said recommendation may be acted upon, and that said Edwin D. Wadsworth may be appointed to said office.

"Very respectfully, yours, "LUTHER FISK, President. "JOHN HUMPHERY, Secretary of the Boston Marine Society."

OPINION.

To His Excellency, the Governor, and the Honorable Council of the Commonwealth of Massachusetts:

We, the justices of the supreme judicial court, have considered the questions upon which our opinion was required by an or der of the governor and council, a copy of which is annexed, and respectfully submit

recom

the following opinion: The meaning of
Pub. St. c. 70, § 2, seerns to us to be that
the persons to be appointed commission-
ers of pilots for the harbor of Boston by
the governor, with the advice and consent
of the council, must first be
mended by the trustees of the Boston Ma-
rine Society, and that the governor and
council can appoint said commissioners,
without such recommendation, only when
the trustees refuse, decline, or are unable
to make a recommendation. It appears
that the trustees actually recommended
to the governor and council the appoint-
ment of Mr. Edwin D. Wadsworth, for the
term of three years from the expiration of
the term of office of Mr. Thomas P.
Howes; that this recommendation was
made and sent to the governor and coun-
cil on the 8th day of July. 1890, and that
the term of office of Mr. Howes did not
expire by limitation until the 13th day of
said July. We understand that this rec-
ommendation of Mr. Wadsworth by the
trustees is still before the governor and
council; that the trustees have never
withdrawn it; and that they still ask
that it may be acted upon. We are of
opinion that the recommendation of Mr.
Wadsworth by the trustees was season-
ably made; and that the governor and
council were not authorized to reappoint
Mr. Howes, under the circumstances stat-
ed in the order. We are also of opinion
that St. 1887, c. 364, applies to the office of
commissioner of pilots for the harbor of
Boston. The commissioners are officers
appointed by the governor, with the ad-
vice and consent of the council, although
they must first be recommended by the
trustees of the Boston Marine Society, if
the trustees are able and willing to make
the recommendation. We therefore an-
swer the first question in the negative,
and the first part of the second question
in the affirmative. The effect of St. 1887,
c. 361, is that Mr. Howes continues to
hold the office, the term of which expired
by limitation on July 13, 1890, until his
successor in office has been duly appoint-
ed and qualified.

WALBRIDGE A. FIELD.
CHARLES ALLEN.

OLIVER WENDELL HOLMES, Jr.
MARCUS P. KNOWLTON.

JAMES M. MORTON.

JOHN LATHROP.

JAMES M. BARKER.

(156 Mass. 449)

BALLARD et al. v. DEMMON.

(Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1892.) RIGHT OF WAY-PRESCRIPTION-INTERRUPTION OF ADVERSE USER.

1. Where a right of way by prescription is claimed, acts of user on which such claim rests cannot be referred to a right of way by necessity which was lost over 60 years before, and the existence and loss of which it does not appear were known to either of the parties or their predecessors in interest.

2. The fact that certain persons have a right of way by grant does not prevent other persons from acquiring a prescriptive right to use the