Home CITY OF WORCESTER vs. TOWN OF MILFORD.

348 Mass. 786

January 29, 1965

The plaintiff seeks recovery from the defendant under G. L. c. 117, Section 14, as amended through St. 1939, c. 39, Section 1, for hospital care furnished to persons whose settlement was in Milford. The case was tried in the Superior Court on a statement of agreed facts. The amount recoverable by the plaintiff in this action is not subject to the limitation contained in G. L. c. 117, Section 24A. The case is controlled by Worcester v. Charlton, 336 Mass. 525 . The removal of the limitation from G. L. c. 117, Section 24, and the insertion of it in Section 24A, as accomplished by St. 1959, c. 584, in no way derogates from the holding in Worcester v. Charlton, supra. The finding, construed as an order for judgment for the defendant, is reversed. Judgment for the plaintiff is to be entered in the Superior Court for $680.44 on count 1, $89.92 on count 2, and $60.17 on count 3.

Home HOLYOKE NATIONAL BANK, trustee, vs. ADA LYNCH KANE & others.

348 Mass. 786

January 29, 1965

A testatrix (after money bequests to her two grandchildren) left the residue of her estate in trust to pay the income to her son, Harold, for life, with power to expend principal for him and to pay his funeral expenses, "and in the event of his death, if there is a balance . . . in . . . [the] trust, to pay over . . . the balance . . . to my sister, Catherine." The testatrix died in 1941. Harold was her sole heir. Catherine died in 1955. A child and more remote issue were her heirs. Harold died in 1961, leaving two children. The probate judge correctly ordered the balance of the fund to be distributed to the administratrix of Catherine's estate. Catherine's remainder beneficial interest became indefeasibly vested at the testatrix's death. See Old Colony Trust Co. v. Tufts, 341 Mass. 280 , 280-285; De Ford v. Coleman, ante, 299, 301-305, Restatement: Property, Sections 155-157, 255, 256, 260. Cf. Boston Safe Deposit & Trust Co. v. Northey, 332 Mass. 110 (see 335 Mass. 201 , 206-207). To hold Catherine's remainder interest contingent would result in an intestacy, which does not seem to have been intended. See Balcom v. Balcom, 333 Mass. 599 , 601. No testamentary language overcomes the rule of construction favoring early vesting. In the absence of any ambiguity in the will, the probate judge reasonably excluded certain oral evidence. See Mahoney v. Grainger, 283 Mass. 189 , 191-192; Whitbeck v. Aldrich, 341 Mass. 326 , 329; Page, Wills (1961 ed.) Section 32.11. The facts outlined in the offer of proof would not have led to a different result.

Decree affirmed.

Home PHILIP OTTAVIANI vs. ROBERT J. HILL, JR.

348 Mass. 786

January 29, 1965

This is an action of tort to recover damages for personal injuries sustained by the plaintiff by reason of the negligence of the defendant in the operation of a motor vehicle. The case was heard before an auditor, whose findings of fact were not final. The auditor concluded that the "plaintiff's own conduct contributed to the cause of his injuries" and that he "voluntarily assumed the risk of being injured by the defendant." At a trial before a jury there was a verdict for the plaintiff. The defendant excepted to the denial of his motion for a directed verdict

Page 787

and to the trial judge's refusal to instruct the jury that if the "plaintiff's injuries resulted from wilful conduct on the part of the defendant, the jury . . . [are] required to return a verdict for the defendant." On the day of the accident, the defendant and his companions caused damage to a restaurant which the plaintiff assisted in operating. They thereupon ran out of the restaurant to a parking lot across the street. The plaintiff followed them there and stood in the center of one of the two "entrance-exit" driveways. After waiting a few minutes he saw the car driven by the defendant proceeding toward the exit. The plaintiff began to write the registration number of the car, put up his hand and said, "In the name of the law, stop." "[T]here was room for the car to pass . . . on either side of him." The car continued to move forward without change of course or speed. The plaintiff tried "to jump out of the way" but was "struck" by the car. "The defences of assumption of risk and contributory negligence . . . are ordinarily questions for the jury." Luz v. Stop & Shop, Inc. of Peabody, ante, 198, 205. Furthermore, there was ample evidence of negligence on the part of the defendant. Accordingly, the judge was right in denying the defendant's motion for a directed verdict. On the other hand, there was no evidence of "wilful conduct" by the defendant. Therefore, the judge correctly refused to give the requested instruction. Salem Glass Co. v. Joseph Rugo, Inc. 343 Mass. 103 , 105.

Exceptions overruled.