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 in- | come 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 Townseud." 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 including 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 V. Haynes, 14 Allen, 204; Bassett v. Granger, 100 Mass. 348; Haskell v. Sargent, 113 Mass. 341.

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 "childreu," 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.

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 therefore 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. 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

But

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 commissioner, 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

put an end to the way of necessity, so that the use of the passageway by Ballard as a means of access to lot D became ad. verse; and the plaintiffs claimed that they had since acquired a right of way over the passageway between the lot D and Ordway place by an open, adverse, and uninterrupted user of the same by Ballard and the plaintiffs and their respective tenants. There was no evidence of any actual notice to or knowledge by the defendant's predecessors in title that the right of way by necessity had been lost, or that the lot D had come into the same ownership with the adjoining lands on Bromfield street. There was no evidence of notice to or knowledge by Hubbard or his successors in title of the existence of a way of necessity, except the facts herein before set forth, and so far as he was affected with notice by the foregoing conveyances which may be referred to.

The structure of the buildings covering the passageway remained unchanged from the time when they were built by Coolidge, in 1829, down to 1887, when the defendant erected a building known as the "Boston Tavern," complained of as an obstruction, and thereby obstructed the passageway to the damage of plaintiff. During the period from the purchase by Hubbard in 1829 to 1860, when purchased by Milliken, defendant's estate, including the two houses over and on either side of the passageway, was in the occupancy of teaants, so far as occupied at all, and was never occupied by the owners themselves; and the tenants changed from time to time, and on the 1st of May in every year it was occupied by tenants. From 1847 to 1855 defendant's premises were owned by minors. In 1860, while the user of the passageway by Ballard and his tenants here. in referred to was continuing, defendant's premises were conveyed to one Milliken, who entered into possession and occupancy of the same, and converted the same into an hotel, which he personally occupied for a considerable period, but how long was not in evidence; and said hotel was earried on by five other landlords in succession, from before 1864 to after 1872, but for how much longer did not appear; and on June 7, 1887, the property was conveyed by Milliken's executor, by leave of the probate court, to one Marcus, and was the same day conveyed by Marcus to defend ant. The deeds by which the two lastmentioned conveyances were made referred to a plan upon which the premises conveyed and the passageway were delineated, and were expressed to be subject to the three-foot passageway as then existing and used, and to the drain therein, and the rights of all persons, if any, legally entitled to use said way and drain. The landlords of the hotel used the passageway as an approach to the rear of their premises and for other purposes, and a witness for defendant testified that he was employed from 1864 to 1872 as porter in the hotel, and, as part of his duties, swept the pas sageway, and kept it in order. The rights of Gould and his successors in title have never been released, and are still in force. There was evidence covering the period from 1844 to 1887 of open, continuous, and

uninterrupted use of the passageway by tenants of a shop on lot D, when it was occupied, and by the employes and agents of Mr. Ballard and of the plaintiffs at all tmes, for access thereto. As to the period during which the hotel was carried on by other landlords than Milliken, the only evidence of Milliken's knowledge of the use of the passageway were the facts and evidence herein before mentioned.

J. L. Thorndike, for plaintiffs. Geo. Putnam and W. L. Putnam, for defendant.

FIELD, C. J. According to the report the passageway was established by the deed of lot A from Coolidge to Gould, dated June 26, 1828, and it was and is appurtenant to lot A by grant. Lot B was conveyed by Coolidge to Ballard afterwards on the same day as the conveyance of lot A to Gould, but no rights in the passageway were granted to Ballard. Lot C was conveyed on July 15, 1829, by Coolidge to Hubbard, and "at this time there were two brick houses on lot C, built by Coolidge, with an arched passageway three feet wide under and between them, as indicated by the words "covered passageway" on said plan. Lot D was conveyed on October 13, 1829, by Coolidge to Thorndike, who, on October 22, 1829, conveyed it to Ballard, neither deed giving any rights in the passageway. It is contended that from the time of the conveyance of lot C to Hubbard-being July 15, 1829-to the time of the conveyance of lot D to Ballard, namely, October 22, 1829, there was a way by necessity over lot C to and from lot D. It is also argued that this way by necessity ceased when Ballard became the owner of lot D, because Ballard had a way out to Bromfield street over lot B and his other land. This is true if Coolidge, after conveying lot C, had no other way out from lot D to a public street, and it is not found that he had such a way, and if the difficulty of making a new way out over lot B and the other land of Ballard to Bromfield street was not so great as to make the construction of such a way impracticable. There was no evidence that any of the parties actually knew that a way by necessity ever existed, or that this way had been lost by the conveyance of lot D to Ballard. An examination by any of the parties of the title to his lot in the registry of deeds would not necessarily have shown this. Whether on a conveyance of a lot of land a way by necessity arises by implication from the deed in favor of some other lot of the grantor can only be determined by an examination of the title of all the land surrounding this other lot. On the theory of the defendant, Ballard and those claiming under him as owners of lot D never had a way by necessity, because such a way ceased the moment when lot D was conveyed to Ballard. The defendant contended, as the report states, that without "notice or knowledge by the defendant of the cessation of the plaintiff's right his use must be attributed to his right as if it had still continued." The court "declined so to rule, and ruled that, notwithstanding the absence of such notice of cessation, a right of way by prescription might be ас