ified price. The action is brought to recover the sum of $40 for carting to the building mortar which was used in plastering included in his contract, and the further sum of $49 for repairing certain walls and ceilings, which work, the plaintiff claims, was not included in his contract. The plaintiff requested several rulings of law, based upon the theory that an architect, by virtue of his position, irrespective of the terms on which he is engaged, has authority to bind his employer by contracts for any work done upon the structures concerning which he is employed, notwithstanding his employer's instructions restricting his authority, if the restrictions are not in fact known to the contractor; and to order extra work without consulting the owner when small matters requiring it occur in the construction or repair of buildings. We do not find it necessary to consider whether there is any foundation for the plaintiff's theory so far as the claim is for extra work, because the presiding justice has found as a fact that all the items claimed as extra work were included in the plaintiff's written contract. As to the item for carting the mortar to the building, it is plain that the contract to plaster the structure implied that the plaintiff should furnish the mortar, and that the archi against an executor or administrator with the will annexed can be maintained or not, the decisive objection to the present action is that under the statute a legacy is a kind of debt for which an action can only be maintained against an executor as executor, and not against the executor personally, and therefore the action cannot be maintained against the administrator of the estate of the executor. When a surviving executor dies, and there is anything to be performed under the will, an administrator de bonis non must be appointed. The executor or administrator of the deceased executor is not as such the administrator of the estate of the first testator. Pub. St. c. 129. § 10. The executor of an executor shall not, as such, administer on the estate of the first testator. Williams, Ex'rs, 154. An action for the legacy may be brought against the administrator de bonis non, if there are assets of the estate in his hands. Collins v. Collins, 140 Mass. 502, 5 N. E. Rep. 632. See Jenkins v. Wood, 140 Mass. 66, 2 N. E. Rep. 780; Brooks v. Lynde, 7 Allen, 64. But, as the administrator of the deceased executor is not charged with the administration of the first testator's estate, an action cannot be brought by a legatee for a legacy against him, even if he is liable as administrator of the executor to the administra-tect had no power, by virtue of his positor de bonis non of the testator for the property of the testator's estate which the executor has not accounted for, or has wasted or converted to his use. Judgment affirmed. MCINTOSH v. HASTINGS. (Supreme Judicial Court of Massachusetts. Suffolk. May 9, 1892.) POWERS OF AGENT-ARCHITECT. An architect who is superintending the construction of a building, and who has a contract for the plastering, which implies that he shall furnish the mortar, has no power by virtue of his position merely, and without authority from his employer, to have the mortar carted to the premises, instead of having it made there, or to so vary the contract of his employment in any other respect as to make the employer pay a higher price for the mortar than is contemplated therein. Exceptions from superior court, Suffolk county; CHARLES P. THOMPSON, Judge. This was an action of contract, brought by David McIntosh against B. E. Hastings. There was judgment for defendant, and plaintiff excepts. Exceptions over. ruled. Jas. O. Kelley and H. L. Boutwell, for plaintiff. Grant M. Palmer, for defendant. BARKER, J. The defendant, desiring to alter and repair a building and erect a new structure on an adjoining lot, employed an architect to make plans and superintend the work of construction. Whether he was explicitly instructed not to order any extra work without the defendant's knowledge and consent was in dispute at the trial, which was without a jury. The plaintiff contracted in writing to do a portion of the work for a spec tion merely, and without authority from his employer, to so vary the contract that his employer would be bound to pay an extra price for furnishing the mortar in a way not contemplated by the contract. The presiding justice has found as a fact that the architect was not authorized to make any contract for carting the mor tar, and we are aware of no principle which required him to rule that an architect has such authority as matter of law. Exceptions overruled. CHAPLIN V. HARBECK. (Supreme Judicial Court of Massachusetts. Suffolk. May 9, 1892.) ACTION ON CONTRACT-ACCRUAL OF RIGHT. The fact that an account sued on, and which describes generally certain professional services as consisting of an examination of title, numerous interviews, correspondence, advice, etc., without specifying the date of any particular service, is dated several days later than the date of plaintiff's writ, does not show as a matter of law that the services were not performed, and the cause of action did not accrue, until after the date of the said writ. Exceptions from superior court, Suffolk county; ELISHA B. MAYNARD, Judge. This was an action of contract, brought by Heman W. Chaplin against Charles T. Harbeck. From a refusal to rule that plaintiff was not entitled to recover, defendant excepts. Exceptions overruled. Wm. B. French, for plaintiff. Geo. C. Abbott and J. Winthrop Pickering, for defendant. FIELD, C. J. The case was sent to an auditor who found for the plaintiff, and was tried by a jury, in which the auditor's report was read as evidence, and was the only evidence, and a verdict was re turned for the plaintiff under instructions not excepted to. The writ is dated May 16, 1890, and the declaration is on an account annexed, and the account annexed is in the form of a debit of the defendant to the plaintiff for "services in relation to making title to flats on Albany street, viz.," and then follows a general description of the services, which consist of an examination of the title, conferences, and advice, numerous interviews, and corre spondence, "entry on the land for foreclosure, with witnesses, and making and filing certificate of entry," etc., without any specification of the date of any particular service. The account is dated "Boston, May 19, 1890," at the head of it. We think that on the face of the account it does not purport to declare that all the services were performed on that date, or on one day. The defendant has not set up in his answer that the services were performed after the date of the writ. Apparently no such question of fact was raised before the auditor or at the trial. The jury might well have found that the auditor had found that the services had been performed before the suit was brought, and that the date of the account aunexed was a clerical mistake. The court rightly refused to rule as matter of law that it appeared from the pleadings and evidence that the cause of action did not accrue until after the date of the plaintiff's writ. Exceptions overruled. FOGG et al. v. SUPREME LODGE OF THE MUTUAL BENEFIT INSURANCE-DISTRIBUTION OF Acts 1888, c. 429, authorizing the incorporation of "fraternal beneficiary organizations," provides (section 8) that "any corporation duly organized as aforesaid, which does not employ paid agents" in soliciting business, "and which conducts its business as a fraternal society on the lodge system, " may pay a benefit to the member or his family. Held, that where a corporation, organized under such act, provided for the payment of a benefit to members at the end of a year out of a fund created by assessments levied for that purpose, but employed paid agents to solicit business, members to whom such benefit certificates had been issued might refuse to pay further assessments without forfeiting payments already made, and were entitled to have the fund so accumulated distributed among the certificate holders. Report from supreme judicial court, Suffolk county: CHARLES ALLEN, Judge. Suit by George Fogg and others against the Supreme Lodge of the Order of the Golden Lion for an injunction and appointment of a receiver. Judgment for plaintiffs appointing a receiver, and ordering a distribution of the funds held by defendant in the endowment benefit business. Reported to full bench. Affirmed. G. W. Anderson, for plaintiffs. H. N. Shepard, for defendant. HOLMES, J. This is a bill brought by certain certificate holders of the defendant corporation seeking for an injunction and & receiver. The defendant is a Massachusetts corv.31N.E.no.4-19 poration, incorporated "for the purpose of doing an insurance business, as provided in chapter four hundred and twenty. nine of the Acts of the year eighteen hundred and eighty-eight." By section 8 of that statute, "any corporation duly organized as aforesaid, which does not employ paid agents in soliciting or procuring business other than in the preliminary organization of local branches, and which conducts its business as a fraternal society on the lodge system," etc., may provide for weekly payments to a member during disability, "or pay a benefit to the member or his family at the end of such period of time as shall be fixed by said by-laws and written in the benefit certificate issued to said member. The words last quoted authorize the issue of the species of certificate held by the plaintiff, and the language quoted from the charter of the defendant does not limit its power more narrowly. We read the words, "an insurance business as provided," etc., as intended to express in a summary way the whole business provided for in the act referred to, or at least so much of it as to bring the defendant under the words, "any corporation duly organized as aforesaid," in section 8. The certificates issued to the plaintiffs purport to bind the defendant “to pay out of its benefit and reserve funds a sum not exceeding one hundred dollars, upon condition that the said member [1. e., of Boston Lodge No. 1, United Order of the Golden Lion,] complies with all the laws, rules, and regulations now governing said subordinate lodge and its funds. The promise we read as a promise to pay as near to $100 as the corporation is able to pay from its reserve fund or by assessment. The condition, in an obscure way, subjects the certificate holder to assessments of two dollars each, not limited in number or frequency within a given time, except as the act limits them in section 8. It is evident to any one of reasonable understanding and experience that such a contract can be performed only by assessing the certificate holder for the full amount to be paid to him, and something more for the expenses of the business, unless the membership increases considerably between the time of making the contract and the time of payment, which, of course, can happen only for a short time, or unless the available reserve funds are increased by other holders forfeiting their certificates and the sums already paid in by them. In view of the narrow limitation set by section 8 of the statute upon assessments up to within three months of the maturity of certificates, it is plain that when certificates are within three months of maturing assessments must begin to fall thick and fast, and that the poor people to whom this business particularly is addressed in many cases will find themselves compelled to forfeit all that they have paid in by their inability to make further payments. It is not in our power to declare the business contrary to public policy, and a fraud on an unprotected part of the community, since the legislature have authorized it, but it is well to understand with what kind of business we are dealing. No one who does understand it, we think, would hesitate to agree that all legislative conditions must be complied with strictly. In the case at bar it appears that assessments of at least 90 or 95 per cent. of the sum to be received, and probably of an amount equal to more than the whole, will be necessary in order to enable the defendant to pay. It is found that many of the certificate holders are poor, and unable to understand the scheme of this business, if they should try to. It appears, too, that the officers of the company assumed to be men of experience, and gave strong assurances to the public that within a year they would get $100 for payments estimated not to exceed $39, and that people who took the certificates were misled. For all practical purposes, we have no doubt that many of them were deceived as truly as if they had been misled by the most specific statement of fact. Still we have not yet got far enough to warrant the issuing of an injunction and winding up this branch of the defendant's business as a whole. Many certificate holders, we cannot doubt, perfectly understood that their only chance of a profitable investment was that others might prove less able than themselves to stand frequent assessments, and so might forfeit their policies. Moreover, those who were misled were misled only by collateral expressions of prophecy, while the defendant's promise in the contract was conditioned in express terms, as we have said. The advertisements stated with great confidence that members would receive $100 in one year, but when it came to the cost they only said: "It is estimated that there will be not over fifteen assessments the first year, besides the cost of joining, which is five dollars, and the annual dues of four dollars." We cannot say wholesale that all who dealt with this company were, and were known to be, so inferiorin intelligence as to need more careful consideration than the parties to a contract usually are entitled to demand of each other, and that, therefore, statements which, on ordinary principles, would not warrant avoiding a contract, do warrant it as between the defendant and all its certificate holders. If any one of them has special grounds of complaint, it will be time enough to deal with them when he brings a separate action. It is desirable in the present position of things that this branch of the defendant's business should be wound up, at least so far as to distribute the fund on hand among the present certificate holders, without carrying to its extremity the bellum omnium contra omnes by further assessments and further forfeitures. One of the weaknesses of the system is that the moment such a corporation ceases to gain, as sooner or later it must, it begins to lose. The present certificate holders cannot hope to be helped at the expense of future ones, because now it no longer is to be expected that others will join the concern, so that the only alternatives are to allow the game to be played out to the end or to divide the funds. These considerations, of themselves, would not warrant our interference, but we think the circum-. stances of the case are enough to do so. The business, although not necessarily and under all circumstances unlawful, is not allowed to companies employing paid agents in soliciting or procuring business other than in the preliminary organization of local branches. It is found that this company employed such agents, and therefore is not within the authority given by the act. At the same time, the fact was one peculiarly within the defendant's knowledge, and the plaintiffs are not in pari delicto. Monument Nat. Bank v. Globe Works, 101 Mass. 57, 58; Bissell v. Railroad Co., 22 N. Y. 255, 273, 289, 290; Ditch Co. v. Zellerbach, 37 Cal. 543, 578; No wich v. Railway Co., 4 El. & Bl. 397, 443; Madison & I. R. Co. v. Norwich Sav. Soc., 24 Ind. 457, 462; Auerbach v. Mill Co., 28 Minn. 291, 296, 9 N. W. Rep. 799; Gelpcke v. Dubuque, 1 Wall. 175, 203, Supervisors v. Schenck, 5 Wall. 772, 784. See Woolen Co. v. Lamb, 143 Mass. 420, 9 N. E. Rep. 823; Spring Co. v. Knowlton, 103 U. S. 49. Unlike most cases, the consideration furnished by the plaintiffs is in the main a fund which the defendant was to keep identified and hold in trust for distribution among the policy holders when the time came. The fund is called "trust" expressly by the statute, (section 9.)1 It seems to us, therefore, that the plaintiffs are entitled to stop where they are, and to refuse to pay further assessments under their certificates, without incurring a forfeiture, and to come into equity for distribution of the fund which they have created. It is found, if that be material in such a case as this, that all proper efforts to obtain relief in the order have been made, and have failed. Dunphy v. Association, 146 Mass. 495, 16 N. E. Rep. 426. See Stamm v. Association, 65 Mich. 317, 32 N. W. Rep. 710; Peltz v. Supreme Chamber, (N. J. Ch.) 19 A tl. Rep. 668. a We need not consider whether the facts found warrant our saying that the business has been conducted in such a way as to put an end to whatever security there might have been in it, or whether that fact, if found, would warrant the interference of the court; bearing in mind that the defendant is not a partnership, but a corporation, and therefore not necessarily within the principles of some of the cases cited at the argument. Pearce v. Piper, 17 Ves. 1, 15; Beaumont v. Meredith, 3 Ves. 1Acts 1888, c. 429, § 9: "Any such corporation may hold at any one time, as a death fund belonging to the beneficiaries of anticipated de ceased members, an amount not exceeding one assessment from a general or unlimited membership, or an amount not exceeding in the aggregate one assessment from each limited class or division of its members: provided, that nothing in this section shall be held to restrict such fund to less than twenty-five thousand dollars: and provided, that corporations which pay benefits to members or their families, at the end of fixed periods of time, may hold as a reserve fund an amount not exceeding twenty per cent. of the amount reSuch fund, while held ceived on assessments. in trust, shall be invested in securities in which insurance companies are allowed by law to invest their capital, or deposited in safe banking institutions, subject to sight drafts for distribution to the beneficiaries aforesaid. " & B. 180, 181; Reeve v. Parkins, 2 Jac. & W. 390; Ellison v. Bignold, Id. 503, 511; Gorman v. Russell, 14 Cal. 531, 537. The decree appointing a receiver, and ordering a distribution of the funds now held by the defendant in the endowment benefit business, is affirmed. Decree affirmed. FOSTER et al. v. SMITH et al. (Supreme Judicial Court of Massachusetts. Essex. May 9, 1892.) WILLS-CONSTRUCTION-DEVISE IN FEE-POWER OF DISPOSAL-RESIDUARY LEGATEES. 1. Testator devised to his wife all his estate, "to her and her assigns, for her to use and dispose of in any way she may think best, either to sell and convey by deed, or to will the same, without regard to any legacies hereinafter contained." Then followed a provision whereby, at the decease of his wife, if there should be any of said property undisposed of by her by will or otherwise, be devised and bequeathed it in the manner set forth in 11 succeeding devises and legacies, which were followed by a direction that, if there should not be property sufficient to pay the same in full, then they were to be paid ratably. Held, that the wife had an estate in fee simple, rather than a life estate with power of disposal; Pub. St. c. 127, § 24, providing that devises shall be construed to convey testator's entire estate unless the contrary clearly appears. 2. Testatrix, after making certain bequests of household goods to S., bequeathed to her $3,000, "together with the residue of the goods and chattels not herein before named, and $2,000 more, should there be that amount left after the disposal of the remaining estate of my deceased husband." Held, that S. was not thereby made a residuary legatee, entitled to all moneys and securities not needed to pay charges and satisfy other legacies, but that she only took the residue of the household "goods and chattels," and that she was not entitled to the proceeds of a sale of all the land that testatrix got from her husband, otherwise undisposed of, but only to have the same sold if necessary to pay the bequests of money. 8. It was not competent to prove testatrix's oral declarations, to explain her intention. Case__reserved from supreme judicial court, Essex county; MARCUS P. KNOWL TON, Judge. Bill by Samuel J. Foster, executor under the will of Eleanor Perry, deceased, and another, against Ella P. Smith and others, for the construction of said will and for instructions. Case reserved from supreme judicial court. Wm. Choate and W. F. Dana, for plaintiffs. H. P. Moulton and F. V. Wright, for respondent Ella P. Smith. Boyden & Giddings, for respondents W. E. Perry et al. BARKER, J. The case involves the construction of the will of Eleanor Perry, who died in 1889, and incidentally the will of her husband, James Perry, who died in 1876. Mrs. Perry's heirs at law and next of kin were two brothers, a sister, and the four children of a deceased brother. Her estate consisted of about $3,600 in money and securities, and an undivided fifth of certain lands which came to her from her father and mother; of about $9,700 in money and securities, and seven parcels of land, which she took under the will of her husband; of about $965 in money and securities which she had her self acquired; and in some household furniture and similar goods and chattels, the source of her ownership of which is not stated. The first question is whether the estate given to her by the will of her husband was absolute, or only for her life, with power of disposal by deed or will. The will of James Perry, after appointing his wife executrix, and directing her to pay. his debts and funeral expenses as soon as she shall find it convenient, proceeds as follows: "And as to my worldly estate, and all the property, real, personal, or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath, and dispose thereof in the manner following, to wit: 1st. I give, devise and bequeath to my beloved wife, Eleanor Perry, all my real and all my personal estate of every kind and description, to her and her assigns, for her to use and dispose of in any way she may think best, either to sell and convey by deed or to will the same, without regard to any legacies hereinafter contained. But at the decease of my said wife, if there should be any of my said property, real or personal or both, which she has not disposed of by will or otherwise, then my will is that said residue or remainder of my said estates I devise and bequeath as follows, to wit." Then follow 11 devises and legacies to individuals, succeeded by the following provisions: "If, at the decease of my said wife, there should not be property enough to pay the before-named legacies in full, then each is to receive their proportional part according to their respective legacies. But, if there should be more property at the decease of my said wife than the legacies herein amount to, then it is to be divided in proportion to their legacies, to the amount in the aggregate of two thousand dollars." These are all the provisions of the will, except the usual formal commencement and the usual conclusion. Whether this will gave to the testator's widow the full ownership of his property, or only a life interest with power of disposal, is to be determined by ascertaining from the whole will the intention of the testator, and by giving it effect so far as it does not contravene the rules of law. But as held in Kent v. Morrison, 153 Mass. 137, 26 N. E. Rep. 427, if the testator intended to give absolutely a fee simple, he cannot attach to it a quality or condition inconsistent to such an estate. He cannot say that, although the devisee shall hold the property in fee simple after it has vested, yet if he does not convey it in his lifetime, or devise it by will, it shall not descend as his property, but shall be considered as the property of the testator, and pass as part of his estate. Examining the will, the indications which point most strongly to the view that the testator did not intend to confer absolute ownership upon his wife are the absence of strict words of inheritance in the clause making provision for her, and the provisions for the disposal of the residue or remainder of his estate after her decease. If the words used in making the pro wife, by which construction alone has his purpose been effected. He had made her his executrix; and the statement that the property is "for her to use," and the insertion of the power of disposal may, like his insertion of words of inheritance in his bequests of sums of money, have been due to an overanxiety to make it certain that the property should be wholly her own. So, too, the provisions for disposing of the property at her decease may, consistently with her full ownership, be accounted for upon the theory that the testator was ignorant of the doctrine which forbade him to attach to her estate the inconsistent quality that, if undisposed of by her, it should go as directed by his own will. Upon the whole, we are of opinion that it does not clearly appear by the will that the testator intended his wife to have less than all the estate which he could lawfully devise; and, applying the statute referred to, we construe the devise to her to have been in fee, and hold that his subsequent provisions for the disposition of the property upon her death are inconsistent with her estate, and of no effect. vision for Mrs. Perry were the operative | to give the absolute ownership to his words of a conveyance of land at common law, they would give to the grantee no more than a life interest, with power of disposal. But, since used in a will, they may, if so intended, confer absolute ownership, and under our statute are to be so construed, unless it clearly appears by the will that the testator intended to convey a less estate. Pub. St. c. 127, § 24. So that the question is whether it clearly appears by this will that the husband intended to give a less estate. In addition to the circumstances noted, some weight in the same direction may be given to the clause which states that it is "for her to use," and to the insertion of the powers to dispose of the property, all of which would have been unnecessary if the testator had supposed that he was making her the absolute owner. Looking at the subsequent provisions of the will, we find, first, a devise of land without any words of inheritance or limitation, next a gift of lands and money to one "and her heirs and assigns forever," and next a devise of lands and a pew in the Baptist meetinghouse, to one "to hold during his natural life, · to hold and improve during his natural life, and after him to go to his nearest heirs." In addition, there are eight separate pecuniary legacies, in two of which the formula used is, "I give, devise, and bequeath to, * to her and her heirs," and in the others," to her and heirs forever." These provisions show that the usual technical expressions used in the creation of life estates and fees simple were not unknown to the person who drafted the instrument, though upon the whole will it is very doubtful whether he was acquainted with their technical meaning, and whether, in adopting or rejecting them in any particular provision, the testator can be fairly supposed to have acted with knowledge of their precise effect. The whole instrument gives the impression that it was not drafted by one skilled in the use of legal phraseology. In the outset, it expresses a desire to dispose of all the testator's estate; but it is clear that this is not done upon any theory of its meaning, except that which gives the absolute ownership of the whole to his wife. The first devise of real estate is without words of inheritance, yet the remainder in that parcel is not disposed of. The testator had several parcels of land which he does not specifically devise. His will contains no general residuary clause, while the excess in value of his personalty above the amount necessary to pay all his legacies was more than the $2,000 by which the legacies were to be increased if there should be more property at the death of his wife than the amount of the legacies. Upon the whole, it seems impossible to say what degree of learning dictated the selection of the terms used, and it must be doubtful what inferences should be drawn from language which may or may not have been used with an understanding of its technical sense. As already stated the testator at the outset declares his intention to dispose of all his property; and this favors the supposition that he meant Assuming that Eleanor Perry was the absolute owner of the property which came to her under the will of her husband, it is not difficult to arrive at the construction of her own will. The principal question is as to the meaning of the eighteenth clause, which makes provision for Ella P. Smith. It is contended by her that she is entitled under it to the whole residue of the personal property after payment of the charges of administration and the satisfaction of the other legacies given by the will, and that she is also entitled to have all the real estate which came to the testatrix from her husband, and of which the testatrix made no specific devise, sold, and the entire proceeds paid to her. The clause is as follows: "I give and bequeath to Ella P. Smith, wife of Weldon Smith, my best bed and mattress, best sofa, camphor trunk, two flag-bottomed chairs, set of china, twelve teaspoons, four tablespoons, butter knife, a sugar spoon, one quarter part of my bed linen, and three thousand dollars in money, together with the residue of the goods and chattels not herein before named, and two thousand dollars more, should there be that amount left after the disposal of the remaining real estate of my deceased husband." Ella P. Smith was a legatee in the will of James Perry, before mentioned, to the amount of $3,000. By the previous articles of her own will the testatrix had given to the other legatees of her husband who were living the several sums of money and parcels of land named in his will, for each to take upon her death. James P. Day, to whom her husband had devised the High street lot, without words of inheritance, had died without issue in the year 1888; and his father, who was not of her husband's blood, was his heir. She devised this lot to six of her husband's nieces and a nephew. Anna F. Day, to whom her husband's will gave the Hale street lot in fee, and $200 in money, had died; and Mrs. Perry devised that lot and the same sum |