(R. L. c. 141, § 2, see now St. 1914, c. 699, § 2); under R. L. c. 141, § 3, it is provided that if the administrator pays, as required in § 2, before notice of the demand of any other creditor, the whole of the estate, he shall not be required to represent the estate insolvent, but in an action against him he shall be discharged upon proving such payments. The administrator had no knowledge of the plaintiff's claim until more than a year after he had given due notice of his appointment. He filed an inventory as required by law, and without information of the plaintiff's demand, applied the entire estate in payment of the claims of the creditors who were known to him. There was no payment of the funds of the estate to distributees as in Browne v. Doolittle, 151 Mass. 595. The funds were all expended in payment of the debts of the deceased, and although the claims of the creditors were paid before the expiration of one year from the date of the notification of the administrator's appointment, the compliance with the statute was a bar to the plaintiff's action if the defendant could show that a settlement of his accounts had been made and approved in the Probate Court. As stated by Chief Justice Shaw in Cushing v. Field, 9 Met. 180, when discussing Rev. Sts. c. 66, §§ 12-14, (which sections are substantially the same as §§ 2, 3, R. L. c. 141, in so far as they are material to the question we are considering,) "If she has settled an administration account in the Probate Court, from which it appears that the whole estate and effects of the intestate, which have come to her hands, have been exhausted in paying charges of administration, &c., then she has a good defence. But if she has rendered no such account, and especially if she has not returned an inventory, then her only defence will be a representation of insolvency. It is only by an inventory and an account, and by regular proceedings in the Probate Court, that an administrator can defend a suit on the ground of the insolvency of the estate of his intestate." See also Fuller v. Connelly, 142 Mass. 227; Forbes v. McHugh, 152 Mass. 412; McKim v. Haley, 173 Mass. 112.

It is provided by R. L. c. 141, § 5, that the payments of charges of administration and preferred claims which are sufficient to exonerate the executor or administrator from personal liability shall be proved by a decree of the Probate Court. The determination whether the estate of a deceased person has been 20

VOL. 227.

exhausted by the payment of debts is in its essence a probate matter, and must be decided in that court rather than in a common law court. "It is a settled principle of our law that trustees appointed by a probate court, as well as guardians, administrators, and executors so appointed have a right to have their accounts adjusted and the amounts due to or from them as trustees determined in the Probate Court, on its probate side, and in the usual probate proceedings; and they cannot be compelled first to render their accounts, or made to pay over the fund, by proceedings at equity or at law, save after and in pursuance of such an adjustment and determination on the probate side of the court." Green v. Gaskill, 175 Mass. 265, 269. See Cobb v. Kempton, 154 Mass. 266; Wilson v. Boylston National Bank, 170 Mass. 9; Allen v. Hunt, 213 Mass. 276. This is in accord with the general principle of wide application that probate questions must be determined by probate courts. See Welch v. Boston, 211 Mass. 178, 185, and Ensign v. Faxon, 224 Mass. 145, 147.

The administrator filed an account in the Probate Court in December, 1914, after service upon him of the plaintiff's writ, and although the record shows this account was allowed (see Probate Court Rule 11), no notice was given the plaintiff (Browne v. Doolittle, 151 Mass. 595, 597) and a motion to vacate and an appeal from the order of the Probate Court allowing the account were pending at the time of the trial of this action. See R. L. c. 150, § 17; St. 1907, c. 438.

As an appeal from a decree or order of the Probate Court in a case of this kind suspends its operation until the appeal is decided (R. L. c. 162, § 16, Gale v. Nickerson, 144 Mass. 415, Tyndale v. Stanwood, 186 Mass. 59; S. C. 190 Mass. 513, Stone v. Duffy, 219 Mass. 178, 182), the defendant could not rely on the fact that the Probate Court previously had allowed the account, an appeal having been taken from the order of the court allowing it. To avail one's self of the defence given by the statute it must be shown that at the time of trial the estate had been settled and the account finally allowed. As this could not be done the plaintiff's third request should have been given.

If a motion is made in the Superior Court within thirty days after the filing of the rescript, for the continuance of the case until

the question of the allowance of the administrator's account is settled, and if the case is continued, such an appropriate judgment shall be entered as the court may determine.

Exceptions sustained.

METZ COMPANY vs. BOSTON AND MAIne Railroad.

Middlesex. March 7, 1917.

- May 29, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, PIERCE, & CARROLL, JJ.

A provision in an interstate bill of lading issued by a railroad corporation in a form filed by the corporation with its tariff schedules with the interstate commerce commission, that "Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed," and that "Unless claims are so made the carrier shall not be liable," cannot be waived by the railroad corporation that filed the form of the bill of lading with its schedules. Following Georgia, Florida & Alabama Railway v. Blish Milling Co. 241 U. S. 190.

Examples cited by RUGG, C. J., of the application of the principle that there can be no waiver of an express prohibition embodied in the law for the general welfare.

CONTRACT for $335.70 for the value of certain castings which the defendant on June 13, 1913, agreed to transport from Black Rock in the State of New York to Waltham in this Commonwealth and which it failed to deliver. Writ dated December 4, 1914.

In the Superior Court the case was tried before Bell, J. The evidence is described in the opinion. The judge ordered the jury to return a verdict for the plaintiff in the sum of $344.10, the full amount of its claim; and the defendant alleged exceptions. J. M. O'Donoghue, for the defendant.

W. J. Bannan, (J. L. Harvey with him,) for the plaintiff.

RUGG, C. J. This is an action to recover the value of certain castings shipped in interstate commerce from Black Rock in the State of New York to Waltham in this Commonwealth, and lost in transportation. It was admitted that a bill of lading "was issued according to law and that a copy of said bill of lading had been duly filed with the tariff schedules of the issuing carrier with the interstate commerce commission and these tariff sched

ules had been duly published and kept open for inspection in accordance with the Acts of Congress and amendments thereto relating to interstate commerce." One clause of this bill of lading was in these words: "Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable." It is beyond question that a provision of this sort is valid and binding on the parties under the interstate commerce act. This needs no discussion in view of Chesapeake & Ohio Railway v. McLaughlin, 242 U. S. 142, Northern Pacific Railway v. Wall, 241 U. S. 87, and Cincinnati, New Orleans & Texas Pacific Railway v. Rankin, 241 U. S. 319.

The jury made an express finding, however, that the condition of the bill of lading requiring written notice of loss within four months had been waived by the defendant. This finding was warranted by the evidence. Therefore, the single question presented is whether such a condition in a bill of lading can be waived under the federal laws relating to interstate commerce. This is a question touching which the decisions of the Supreme Court of the United States are binding. The interstate commerce act supersedes all State laws as to the subject over which Congress thus has put forth its superior power. Corbett v. Boston & Maine Railroad, 219 Mass. 351, 356.

This question presented in the case at bar seems to us to be set at rest by Georgia, Florida & Alabama Railway v. Blish Milling Co. 241 U. S. 190, where, at page 197, it was said: "the parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed. Chicago & Alton Railroad v. Kirby, 225 U. S. 155, 166." Those words are exactly applicable to the facts here presented. They were used in the course of a decision respecting a clause in a bill of lading in effect the same as that here in

volved. While the facts of that case were slightly dissimilar to those of the case at bar, they are not different in substance and they call for the operation of the same principles of law. It cannot be presumed that the words just quoted were used inadvisedly or without a full appreciation of the natural force to be attributed to the comprehensive reference to waiver in that connection. This decision appears to mean that, when the form of the bill of lading with its numerous contractual provisions has been filed according to law with the interstate commerce commission, and the interstate rate for transportation has been fixed with reference to the terms and obligations of that uniform bill of lading, then those contractual terms and obligations become a part of the rate established and neither party can depart from them. The shipper and the carrier become bound inexorably by them. This decision was foreshadowed by Southern Railway v. Prescott, 240 U. S. 632, Kansas City Southern Railway v. Carl, 227 U. S. 639, and Chicago & Alton Railroad v. Kirby, 225 U. S. 155, and perhaps in other decisions.

Waiver by the railroad corporation of an obligation resting on the shipper or consignee would operate to that extent to create a preference in favor of that particular shipper or consignee and a discrimination against all others to whom a like concession is not made. But it is the plain purpose of the interstate commerce act and its amendments to prevent all favoritism by the carrier toward shippers and to put all shippers on the same footing. The public policy of the country has been declared to this end in no unmistakable terms in numerous decisions. Boston & Maine Railroad v. Hooker, 233 U. S. 97. Louisville & Nashville Railroad v. Mottley, 219 U. S. 467, 477. Armour Packing Co. v. United States, 209 U. S. 56. Missouri, Kansas & Texas Railway v. Harriman, 227 U. S. 657. It was said in Kansas City Southern Railway v. Carl, 227 U. S. 639, at page 649, that the Carmack amendment of the interstate commerce act "manifested the purpose of Congress to bring contracts for interstate shipments under one uniform rule or law."

The doctrine of waiver is not applicable to any subject where the public policy has been authoritatively declared to be contrary to waiver of rights. Laws founded upon considerations of public policy cannot be evaded by the device of waiver. The absolute defence is allowed in such instances, not for the sake of the defend