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The petitioner contends that any dealing with the ship or cargo which affects the fitness of the ship to carry her cargo is "man

the district court and the circuit court of | store her cargo, and to care for and properly appeals agree that the loss was due to hur- deliver the same." Act of February 13, ried and imprudent unloading, which 1893 (27 Stat. at L. 445, chap. 105, U. S. brought the center of gravity of the ship | Comp. Stat. 1901, p. 2946). 5 or 6 inches above the metacenter. As usual, we accept their finding. The Iroquois, 194 U. S. 240, 247, 48 L. ed. 955, 959, 24 Sup. Ct. Rep. 640; The Carib Prince (Wupper-agement of the vessel," within the meanmann 7. The Carib Prince) 170 U. S. 655, 658, 42 L. ed. 1181, 1182, 18 Sup. Ct. Rep. 753. We see no sufficient reason to doubt | that it was correct. With reference to a part of the argument, we think it proper to say a word. It is quite true that negligence must be determined upon the facts as they appeared at the time, and not by a judgment from actual consequences which then were not to be apprehended by a prudent and competent man. This principle nowhere has been more fully recognized than by this court. Lawrence v. Minturn, 17 How. 100, 110, 15 L. ed. 58, 62; The Star of Hope (The Star of Hope v. Annan) 9 Wall. 203, 19 L. ed. 638. But it is a mistake to say, as the petitioner does, that if the man on the spot, even an expert, does what his judgment approves, he cannot be found negligent. The standard of conduct, whether left to the jury or laid down by the court, is an external standard, and takes no account of the personal equation of the man concerned. The notion that it "should be coextensive with the judgment of each individual," was exploded, if it needed exploding, by Chief Justice Tindal, in Vaughan v. Menlove, 3 Bing. N. C. 468, 475. And since then, at least, there should have been no doubt about the law. Com. v. Pierce, 138 Mass. 165, 176, 52 Am. Rep. 264; Pollock, Torts, 7th ed. 432.

The foregoing statement, abridged from that of the district court, which was accepted by the circuit court of appeals, is sufficient to present the question which we have to discuss, if we add the finding of the latter court, that, after the Germanic was made fast, she was given in charge of the shore agents of the owners, and that they alone assumed direction of the discharging and loading of cargo, and prepared her for the return voyage. The question is whether the damage to the cargo was "damage or loss resulting from faults or errors in navigation or in the management of said vessel," as was set up in the answers, in which case the owner was exempted from liability, by § 3 of the Harter act, or whether it was "loss or damage arising from negligence, fault, or failure in proper loading, storage, custody, care, or proper delivery" of merchandise under § 1 of the same, in which case he could not stipulate to be exempt. The second section also recognizes and affirms the "obligations" to carefully handle and

ing of § 3. To support this contention the case of The Glenochil [1895] P. 10, is cited. There, after the arrival of the vessel in port, and while she was unloading, the engineer, in order to stiffen the ship, let water into a ballast tank, and did it so negligently that the water got to and injured the cargo. The damage was held to result from fault in the management of the vessel, within § 3, and the shipowner was held exempt. See The Silvia, 171 U. S. 462, 43 L. ed. 241, 19 Sup. Ct. Rep. 7. We see no reason to criticize this decision, and therefore lay on one side at once the fact that the vessel had come to the end of her voyage, and was in dock. We assume further that the captain retained authority over his ship, so that it was his power and perhaps his duty to intervene in any case that needed his control. On these assumptions the argument is that cargo has also a function as ballast; that if, for instance, the loss is caused by the improper shifting of pigs of lead, it does not matter whether they are called ballast or cargo, but in either case, so far as the change affects the fitness of the ship as a carrier, it is management of the vessel, within the act. The thing done is the same, and the name of the object cannot affect the result.

Nevertheless, in a practical sense, the ship was not under management at the time, but was the inert ground or floor of activities that looked not to her, but to getting the cargo ashore. And this consideration brings to light the limitation of the section, adopted by the court in The Glenochil, and sanctioned by this court in Knott v. Botany Worsted Mills, 179 U. S. 69, 73, 74, 45 L. ed. 90, 94, 21 Sup. Ct. Rep. 30, to faults "primarily connected with the navigation or the management of the vessel, and not with the cargo." [1895] P. 15, 19. In the case supposed the name given to the pigs of lead is not important in itself, to be sure, but may indicate a difference in the purpose and character of the change of place. If the primary purpose is to affect the ballast of the ship, the change is management of the vessel; but if, as in view of the findings we must take to have been the case here, the primary purpose is to get the cargo ashore, the fact that it also affects the trim of the vessel does not make it the less a fault of the class which the first section removes from the operation of the third. We think it plain that a case may occur which, in dif

(196 U. S. 563)

ferent aspect falls within both sections; | WILLIAM H. MCCAFFREY, Edward Quigand if this be true, the question which secley, et al., Appts., tion is to govern must be determined by the primary nature and object of the acts which LIZZIE C. MANOGUE, George W. Manogue, cause the loss. and Frank Foley.


Wills-construction-intention of testator governs-indefinite devise of lands.

The evident intention of a testator to dispose of his whole estate by a will making all his heirs at law devisees, with a special aim at equality among them, particularly evidenced by charg ing the funeral expenses and the testator's debts upon that devisee who was given a greater quantity of realty than the others, prevents the application of the rule that devises of land without words of limitation or description pass nothing but a life estate. * [No. 131.]

A distinction was hinted at in argument, based on the fact that the damage was not to the cargo removed, but to that left behind in the ship. If the damage was attributable to negligence in unloading, it does not matter what part of the cargo is injured. The fact referred to does bring out, however, that the negligence in removing the cargo was negligence only because of its probable effect on the ship, and was negligence towards the remaining cargo only through its effect on the ship. But, although this may be conceded, the criterion which we have given is undisturbed. That "in" which, as the statute puts it, the fault was shown, was not management of the vessel, but un- Argued January 17, 18, 1905. Decided Febloading cargo; and, although it was fault only by reason of its secondary bearing, the

primary object determines the class to which

it belongs.

It is settled by repeated decisions that the Harter act will be applied to foreign vessels in suits brought in the United States. The Scotland (National Steam Nav. Co. v. Dyer) 105 U. S. 24, 26 L. ed. 1001; The Chattahoochee, 173 U. S. 540, 43 L. ed. 801, 19 Sup. Ct. Rep. 491. The claimant sets up the act and relies upon it. Under the cases it must take the burdens with the benefits, and no discussion of the terms of the bills of lading, if they might lead to a greater limitation of liability, is necessary. Knott v. Botany Worsted Mills, 179 U. S. 69, 45 L. ed. 90, 21 Sup. Ct. Rep. 30; The Kensington, 183 U. S. 263, 269, 46 L. ed. 190, 193, 22 Sup. Ct. Rep. 102. Some of the bills of lading in evidence contain a clause to the further effect that the shipowners, if liable for a loss capable of being covered by insurance, shall have the benefit of any insurance on the goods. But these bills of lading were for transport to Liverpool, and while they provided for forwarding the goods at ship's expense to New York, the forwarding was to be on bills of lading issued by the steamer sailing to that port, and subject to the stipulations, exceptions, and conditions in those bills. We see no occasion to consider the questions which might be raised if the same stipulations were contained in the bills of lading to New York. See Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 463, 33 L. ed. 788, 799, 9 Sup. Ct. Rep. 469; Inman v. South Carolina R. Co. 129 U. S. 128, 32 L. ed. 612, 9 Sup. Ct. Rep. 249; Phoenix Ins. Co. v. Erie & W. Transp. Co. 117 U. S. 312, 29 L. ed. 873, 6 Sup. Ct. Rep. 750, 1176.

Decree affirmed.

ruary 20, 1905.

APPEAL from the Court of Appeals of the

District of Columbia to review a decree which affirmed a decree of the Supreme Court of that District, construing a will as devising life estates only. Reversed and remanded with directions to reverse the decree of the Supreme Court, and to remand the cause to that court for the entry of a decree in accordance with this opinion.

See same case below, 22 App. D. C. 385.

Statement by Mr. Justice McKenna: The question involved in this case is the construction of the will of Hugh McCaffrey, deceased. It was duly admitted to probate, and recorded in the supreme court of the District. It is as follows:

Washington, District of Columbia,

April Thirtieth, 1896. In the name of God, being now in good health and sound in mind and body I hereby certify and declare this to be my last will and testament, hereby annulling and revoking any and all wills previously made.

I give and bequeath to my daughter Mary A. Quigley house number 301 at southwest corner of 11th and C streets southeast, being in lot number 5 in square 970, with the store and dwelling, stock and fixtures, and lot on which it stands, also houses numbers 13 and 15 6th street southeast with lots on which they stand, being parts of lots 19 and 20 in square 841, also any money in bank to my account at the time of my death, also any money due to me, also any building association stock. She is to pay funeral expencies and any other legal debts I may owe, also to care for my lot in Mount Olivet cemetery.

I give and bequeath to my son, James B. McCaffrey, house number six hundred and

*Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, § 1327.

two (602) East Capitol street and lot on | George W. Manogue. Upon an attempt to which it stands, being in lot number ten (10) in square number eight hundred and sixty-eight (868).

To my son, William H. McCaffrey, I give and bequeath house 604 East Capitol street, being in lot number ten (10), in square number eight hundred and sixty-eight (868) and lot on which it stands.

To my daughter, Lizzie Manogue, I give and bequeath house number fourteen hundred and twenty-three (1423) Corcoran street, N. W., and lot on which it stands, being lot number fifty-four (54) in square number two hundred and eight (208).

2. To my son, Francis T. McCaffrey, I give and bequeath house five hundred and nineteen (519) East Capitol street, and lot on which it stands, being part of lot number (20) in square eight hundred and forty-one (841), also my horse and buggy.

And to my grandson, Frank Foley, I give and bequeath house number one hundred and twenty-one (121) Eleventh street, S. E., being in lot number fourteen (14), square number nine hundred and sixty-eight (968), and lot on which it stands.

To my grandson Joseph Quigley, I give and bequeath my watch and chain.

I hereby name and appoint as executors of this my last will and testament, John E. Herrell and Patrick Maloney.

All the real estate herein described is located in the city of Washington, District of Columbia.

Hugh McCaffrey. [Seal.]

The devisees in the will were the only heirs of the testator.

On the 10th of July, 1897, Mary A. Quigley died, leaving surviving four children, the appellants Catherine L., Margaret, Mary, and Joseph Quigley. Edward Quigley, her husband, also an appellant, survived her. She left a will, which was duly admitted to record, by which she devised all her estate to Catherine L. and Edward Quigley, in trust for her children. Francis T. McCaffrey, son of Hugh, and one of the devisees in the latter's will, died October 20, 1898, leaving as heirs at law his brothers and sisters, the children of his deceased sister, Mary A. Quigley, and his nephew, Frank Foley. He left a will, by which he devised and bequeathed all of the property to his sister, Lizzie C. Manogue, and his brothers William A. and James B. McCaffrey, "absolutely and in fee simple, according to the nature of the property, as tenants in common, but not as joint tenants." At the time of his death he was seized and possessed of the real estate devised to him by his father.

James B. McCaffrey has sold and conveyed the lot devised to him to the respondent

sell the property devised by Francis T. McCaffrey, a doubt was raised as to the extent of the interest devised to him and the other devisees by the will of H. McCaffrey,whether an estate for life or in fee simple. This suit was brought "to have it determined what estate each of the said devisees took thereby, and to have their title quieted as against any person or persons who may claim adversely to the same as heirs of said Hugh McCaffrey, or under such heirs."

It was decreed by the trial court that only life estates were devised by the will, and the decree was affirmed by the court of appeals. 22 App. D. C. 385.

Messrs. Arthur A. Birney, O. B. Hallam, and Henry F. Woodard for appellants. Messrs. Edwin Forrest and A. A. Hoehling, Jr., for appellees.

Mr. Justice McKenna, after stating the case, delivered the opinion of the court:


It will be observed that the devises are expressed in exactly the same way. Mary A. Quigley, however, there are given several pieces of real estate, the money of the testator in bank, and his building association stock. She is charged with the payment of the testator's funeral expenses and debts; also with the care of his cemetery lot. Nevertheless, neither of the lower courts distinguished between the devisees,to all was applied the rule of law that a devise of land, without words of limitation or description, gives a life estate only. The · court of appeals held that the charge or burden upon Mary A. Quigley to pay the funeral expenses and debts of the testator was offset by the gift to her of personal property. It is insisted that the ruling is contrary to the decision in King v. Ackerman, 2 Black, 408, 17 L. ed. 292. It is there said: "The rule of law which gives a fee where the devisee is charged with a sum of money is a technical dominant rule, and intended to defeat the effect" of the artificial rule established in favor of the heir at law, that an indefinite devise of land passes nothing but a life estate. It was, however, apparent to the court of appeals that to follow King v. Ackerman would not execute the intention of the testator by opposing one technical rule by another, but would discriminate between his heirs, and destroy the equality between them which it was the purpose of the will to create. To effect this equality the court selected not the "dominant rule," whose virtue this court pointed out, but the other, regarding it the most commanding. It is altogether a strange tangle of technicalities. Apply either of them or both of them, and we defeat the intention of

the testator. Are we reduced to this dilem- | for my lot in Mount Olivet Cemetery." That ma? We think not; nor need we dispute the charge was not intended to enlarge the full strength of the rule in favor of the heir quantity of interest in the real estate deat law. It is not an unyielding declaration of vised in the sense contended for, but to make law. It cannot be applied when the inten- an equality between her and the other heirs tion of the testator is made plain. It cannot and devisees, and, we repeat, that was his esbe applied when the purpose of the testator, pecial purpose. In other words, he gave her as seen in the will, cannot be carried out by more property, not a larger interest in it. a devise of a less estate than the fee. Bell The devise to his grandson, Frank Foley, County v. Alexander, 22 Tex. 350, 73 Am. shows how carefully the testator regarded Dec. 268. The policy of the law in favor of his heirs. Surely, as he regarded that grandthe heir yields, we repeat, to the intention child as inheriting the rights which his of a testator if clearly expressed or mani- mother might have inherited, he did not infested. That policy, the reason for it and tend a disposition of his property which prethe elements of it, is expressed strongly by cluded his other grandchildren of inheriting Mr. Justice Story in Wright v. Denn, 10 through their parents. And this will be the Wheat. 204, 227, 228, 6 L. ed. 303, 309: result if the appellees are right. No devisee possesses an estate which can be devised to or inherited by his or her children.

"Where there are no words of limitation to a devise, the general rule of law is that the devisee takes an estate for life only, unless, from the language there used or from other parts of the will, there is a plain intention; because if it be doubtful or conjectural upon the terms of the will, or if full legal effect can be given to the language without such an estate, the general rule prevails. It is not sufficient that the court may entertain a private belief that the testator intended a fee; it must see that he has expressed that intention with reasonable certainty on the face of his will. For the law will not suffer the heir to be disinherited upon conjecture. He is favored by its policy; and though the testator may disinherit him, yet the law will execute that intention only when it is put in a clear and unambiguous shape." (Italics ours.)

We think the intention of McCaffrey is "put in a clear and unambiguous shape." He intended to dispose of his whole estate. It is true there is no introductory clause expressing such intention, but there is no residuary clause indicating that he intended to pass less than all of his estate. And all of his heirs at law were his devisees. In other words, the very heirs for whom the rule is invoked are those among whom he distributed his property, and surely he intended a complete distribution,--to vest in each the largest interest he could give, not assigning life estates with residuary fees to the very persons to whom such life estates were devised. In other words, making each heir the successor of the other and of himself. It was evident to the court of appeals--it is evident to usthat he intended to make his heirs equal. Of this purpose the charge upon his daughter, Mary A. Quigley, is dominantly significant, not only in effect, but in its expression. She is given a greater quantity of real estate than the other devisees. She is given personal property besides; "But," declared the testator, "she is to pay funeral expenses and other legal debts I may owe, also to care 25 S. C.-21.

Against the effect of the heirs at law of the testator being also his devisees, it may be said that it has been held that, though a testator has given a nominal legacy to his heir, or declared an intention to wholly disinherit him, the inflexibility of the rule in favor of the heir has been enforced. Frogmorton ex dem. Wright v. Wright, 2 W. Bl. 889; Roe ex dem. Callow v. Bolton, 2 W. Bl. 1045; Right v. Sidebotham, 2 Dougl. K. B. 59; Roe ex dem. Peter v. Daw, 3 Maule & S. 518.

In Right v. Sidebotham, Lord Mansfield felt himself constrained to enforce the rule, but he observed in protest: "I verily believe that, in almost every case where by law a general devise of lands is reduced to an estate for life, the intent of the testator is thwarted; for ordinary people do not distinguish between real and personal property. The rule of law, however, is established and certain, that express words of limitation or words tantamount are necessary to pass an estate of inheritance." And he hence concluded that words tending to disinherit the heir at law, unless the estate is given to some one else were not sufficient to prevent the heir from taking.

Lord Ellenborough, in Roe ex dem. Peter v. Daw, followed the rule, and declared also that he thereby probably defeated the inten tion of the testator. It is a strange conclusion from the facts, and needs the sanction of those great names to rescue it from even stronger characterization. Lord Mansfield spoke in 1781, Lord Ellenborough in 1815. We cannot believe, if called upon to interpret a will made in 1896, when the rights of heirs are not so insistent, and the rule in their favor lingers, where it lingers at all, almost an anachronism,-when ownership of real property is usually in fee, and when men's thoughts and speech and dealings are with the fee, they would hold that the purpose of a testator to disinherit his heirs

could be translated into a remainder in fee | the testator, which can better be gathered after a devise of a life estate to another.

But, perhaps, even the severe technicality of those cases need not be questioned. In the construction of wills we are not required to adhere rigidly to precedents. We said in Abbott v. Essex Co. 18 How. 202, 213, 15 L. ed. 352, 355:

"If wills were always drawn by counsel learned in the law, it would be highly proper that courts should rigidly adhere to precedents, because every such instrument might justly be presumed to have been drawn with reference to them. But in a country where, from necessity or choice, every man acts as his own scrivener, his will is subject to be perverted by the application of rules of construction of which he was wholly ignorant." To like effect is Cook v. Holmes, 11 Mass. 528, where the will passed on contained the following devise: "Item. To his grandson Gregory C., only child of his son Daniel C., deceased, a certain piece of land in Watertown, containing about 6 acres." The will contained devises to other sons of pieces of real estate, charging them with payment of certain legacies. The will concluded as follows: "The above-described legacies, together with what I have heretofore done for my children and grandchildren, make them nearly equal, and are their full portions of my estate."

by adverting to the whole scope of the provisions made by him for the objects of his bounty than by confining their attention to one isolated paragraph, probably drawn up without a knowledge of technical words, or without recollecting the advantage of using them."

The devise to Gregory C. was held to be of the fee.

From these views it follows that the decree of the Court of Appeals must be, and it is, reversed, and the case is remanded to that court with directions to reverse the decree of the Supreme Court, and remand the case to that court, with directions to enter a decree in accordance with this opinion.

Mr. Justice Peckham dissents.

(196 U. S. 511) UNITED STATES, Appt.,



Navy-sea pay for shore duty-presumption of temporary character of shore duty. Shore duty performed by a naval officer in obedi

ence to an order of the Navy Department which expressly imposed upon him the continued discharge of his sea duty, and qualified the shore duty as merely temporary and ancillary to such sea duty, will be presumed not to be so incompatible with his permanent sea assignment as to cause the latter to terminate and defeat his right to sea pay while engaged on such shore duty.*

The will, therefore, is similar to the will in the case at bar. Equality between the devisees is as much the purpose of one as the other, though it is expressed in one and deduced as an implication in the other. Chief Justice Parker, in delivering the opinion of the court said: "The quality of the estate which Gregory C. took by the devise must be determined by the words of the will, Argued January 18, 1905. taken together, and receiving a liberal construction, to effectuate the intention of the testator as manifested in the will."

Further: "The words of the particular devise to Gregory, considered by themselves, certainly give no inheritance." And stating the rule of law to be, as contrasted with the popular understanding, "that such a devise, standing alone, without any aid in the construction from other parts of the will, would amount only to an estate for life in the devisee," added:

"But it is too well established and known to require argument or authorities now to support the position that devises and legacies in a will may receive a character, by construction and comparison with other legacies and devises in the same will, different from the literal and direct effect of the words made use of in such devise; [cases were cited in note] and this because the sole duty of the court in giving a construction is to ascertain the real intent and meaning of

[No. 136.]

ruary 20, 1905.

Decided Feb

A view an award of sea pay to a naval officer while engaged on shore duty. Affirmed. See same case below, 38 Ct. Cl. 712.

PPEAL from the Court of Claims to re

Statement by Mr. Justice White:

Somewhat condensing the facts below found, they are as follows: In February, 1897, Chief Engineer Albert C. Engard was performing duty as the chief engineer of the United States receiving ship Richmond, at League Island, Pennsylvania. On the 11th of February he received the following order from the Navy Department:


Navy Department, Washington, February 11, 1897.

Report by letter, to the president of the steel inspection board, Navy Yard, Wash

*Ed. Note.-For cases in point, see vol. 4, Cent. Dig. Army and Navy, § 18.

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