of the city, putting all this power into the hands of the mayor and certain boards in charge of special departments. So far as the exercise of executive and administrative functions by the selectmen was evidence of their qualifications and a reason for their appointment as managers of this charity, the reason is not applicable to the aldermen of Boston under existing laws. The mayor is the official representative of executive power in the city, and if the performance of executive duties in the city government should be considered in the selection of the managers of this charity, he is the only officer of distinction in this department. In regard to the administration of the charity the testator said in the codicil, "It is presumed that there will always be found in Boston virtuous and benevolent Citizens willing to bestow a part of their Time in doing good to the rising Generation by Superintending and managing this Institution gratis," etc. We are of opinion that managers should be appointed by the court from this class of citizens, chosen by reason of their qualifications, intellectual and moral, for this important service. We deem it proper that the mayor ex officio should be a member of the board, and that the whole number of lay members to act with the clerical members should be the same as the number of selectmen at the time of Dr. Franklin's death.

The provisions of the R. L. c. 149, § 1, in relation to the giving of bond by trustees appointed by the Probate Court under a will, are not applicable to these managers. Drury v. Natick, 10 Allen, 169, 176. Lowell, appellant, 22 Pick. 215. The case is to be heard before a single justice of this court, for the appointment of nine managers, of whom the mayor of the city shall be one, to act with the ministers in accordance with this opinion, and an injunction is to be issued as prayed for.

So ordered.

LUCIUS D. HAZEN vs. ESTELLE V. MATHEWS.

Hampden. October 21, 1903. - November 25, 1903.

Present: KNOWLTON, C. J., Morton, Barker, Hammond, & Loring, JJ.

Evidence, Proof of foreign law. Easement, Equitable restriction.

In the absence of evidence on the subject, it will be presumed that the law of the State of New York as to equitable restrictions on land is the same as the common law of this Commonwealth.

An equitable restriction imposed by a deed cannot enure to the benefit of unrestricted land owned in common by the grantor and another not a party to the deed.

CONTRACT for alleged breach of a covenant against incumbrances in a deed from the defendant to the plaintiff dated August 8, 1897, conveying a lot numbered 91 on a certain plan, dated November 5, 1868, of land at Chester Hill, a portion of Mount Vernon, in the State of New York. Writ dated May 14, 1900.

At the trial in the Superior Court Mason, C. J. at the close of the plaintiff's case ordered a verdict for the defendant; and the plaintiff alleged exceptions.

It appeared at the trial, that the southerly line of Mount Vernon is the northerly line of the city of New York, that Mount Vernon is about thirteen miles and a fraction from the Grand Central station and is almost entirely a residential city of detached houses, a suburb of New York; that Chester Hill is the chief residence portion of Mount Vernon, having the best buildings and high priced lots; that Mount Vernon had at the time of the trial about twenty-five thousand inhabitants, and that the population in 1897 was probably about eighteen or nineteen thousand. On page 389 is a reduced copy of the plan of November 5, 1868, omitting the dimensions of the lots, and on page 390 is a sketch showing the situation and surroundings of lot 91 on a larger scale.

W. H. Brooks & W. Hamilton, for the plaintiff.

T. W. Kenefick, J. B. Carroll & W. H. McClintock, for the defendant.

LORING, J. In 1866, one Crary bought of Gilbert and Peter Shute a farm containing some fifty-one acres; and at some time not stated in the bill of exceptions he purchased another tract lying north of the Shute farm, "known as the Straub purchase."

On November 5, 1868, he filed in the office of the Register of Westchester County the accompanying plan, in which both parcels are laid out in building lots fronting on streets shown on the plan. On July 27, 1868, he sold to one McDougal lots 96 and

104, and to one Komp lot 97, referring to a map to be recorded, and they are shown on the plan recorded in the succeeding November mentioned above.

AVENUE

On March 1, 1869, he conveyed to one Darling an undivided

FULTON

half interest in all the tract shown on the plan, that is to say, an undivided half of the Shute purchase and the Straub purchase, excepting lots 96, 97 and 104, which had been previously con

veyed away by him, and also lots 81, 87, 91, 102, 103, 114 and

All of these lots were origi-
Crary also excepted a part

115, which had not been conveyed. nally part of the Shute purchase. of the Straub purchase, being the land included in lot 49 and a portion of lot 67 on said plan.

On March 20, 1869, he sold to one Wooster lot 91, which had been excepted from the conveyance to Darling. That lot was conveyed by Wooster to the defendant and by the defendant to the plaintiff; and in the conveyance to the plaintiff the defendant covenanted that she owned the lot free from incumbrances.

The plaintiff's contention is that by the deed from Crary to Wooster, lot 91 became subject to an incumbrance by way of equitable restriction, and this action was brought to recover from the defendant the difference between the market value of lot 91 free from incumbrances and its value subject to the equitable restriction in question.

No evidence was introduced at the trial of the fact that by the law of New York the deed from Crary to Wooster created an equitable restriction, nor of what the law of New York on that subject is. In the absence of such evidence, the case must be disposed of on the presumption that the law of New York in this respect is the same as the common law of this Commonwealth.

On April 30, 1869, two months after the conveyance of the undivided half of substantially the whole tract to Darling, and one month after the conveyance to Wooster, a plan was filed in the Register's office for Westchester County, covering the tract of land covered by the former plan and another tract of land equally large. On this second plan Summit Avenue was cut through from Sidney Place, called on the new plan Sidney Avenue, to Prospect Avenue; otherwise the lay out of the land was substantially the same. There were changes in the division of the land into lots within the side lines of the streets, which do not seem to be material in this case.

It was provided in the deed from Crary to Wooster, among other things, that neither the grantee nor his heirs or assigns should at any time thereafter erect a dwelling or other building within fifty feet of the front line of said lot. The plan referred to in the deed is the first plan on which Summit Avenue stops at