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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, The petitioner contends that any dealing we accept their finding. The Iroquois, 194 with the ship or cargo which affects the fitU. S. 240, 247, 48 L. ed. 955, 959, 24 Sup.ness of the ship to carry her cargo is "manCt. Rep. 640; The Carib Prince (Wupper- agement of the vessel,” within the meanmann y. The Carib Prince) 170 U. S. 655, ing of g 3. To support this contention the 658, 42 L. ed. 1181, 1182, 18 Sup. Ct. Rep. case of The Glenochil (1895] P. 10, is cited. 753. We see no sufficient reason to doubt There, after the arrival of the vessel in port, that it was correct. With reference to a and while she was unloading, the engineer, part of the argument, we think it proper to in order to stiffen the ship, let water into say a word. It is quite true that negligence a ballast tank, and did it so negligently that must be determined upon the facts as they the water got to and injured the cargo. The appeared at the time, and not by a judg- damage was held to result from fault in the ment from actual consequences which then management of the vessel, within § 3, and were not to be apprehended by a prudent the shipowner was held exempt. See The and competent man. This principle nowhere Silvia, 171 U. S. 462, 43 L. ed. 241, 19 Sup. has been more fully recognized than by this Ct. Rep. 7. We see no reason to criticize court. Lawrence v. Minturn, 17 How. 100, this decision, and therefore lay on one side 110, 15 L. ed. 58, 62; The Star of Hope (The at once the fact that the vessel had come to Star of Hope v. Annan) 9 Wall. 203, 19 L. the end of her voyage, and was in dock. We ed. 638. But it is a mistake to say, as the assụme further that the captain retained aupetitioner does, that if the man on the spot, thority over his ship, so that it was his even an expert, does what his judgment ap- power and perhaps his duty to intervene in proves, he cannot be found negligent. The any case that needed his control. On these standard of conduct, whether left to the assumptions the argument is that cargo has jury or laid down by the court, is an ex- also a function as ballast; that if, for internal standard, and takes no account of the stance, the loss is caused by the improper personal equation of the man concerned. shifting of pigs of lead, it does not matter The notion that it "should be coextensive whether they are called ballast or cargo, but with the judgment of each individual," was in either case, so far as the change affects exploded, if it needed exploding, by Chief the fitness of the ship as a carrier, it is manJustice Tindal, in Vaughan v. Menlove, 3 agement of the vessel, within the act. The Bing. N. C. 468, 475. And since then, at thing done is the same, and the name of the least, there should have been no doubt about object cannot affect the result. the law. Com. v. Pierce, 138 Mass. 165, Nevertheless, in a practical sense, the ship 176, 52 Am. Rep. 264; Pollock, Torts, 7th was not under management at the time, but ed. 432.

was the inert ground or floor of activities The foregoing statement, abridged from that looked not to her, but to getting the that of the district court, which was accept-cargo ashore. And this consideration brings ed by the circuit court of appeals, is suffi- to light the limitation of the section, adopted cient to present the question which we have by the court in The Glenochil, and sancto discuss, if we add the finding of the latter tioned by this court in Knott v. Botany court, that, after the Germanic was made Worsted Mills, 179 U. S. 69, 73, 74, 45 L. ed. fast, she was given in charge of the shore 90, 94, 21 Sup. Ct. Rep. 30, to faults "priagents of the owners, and that they alone marily connected with the navigation or the assumed direction of the discharging and management of the vessel, and not with the loading of cargo, and prepared her for the cargo.” [1895] P. 15, 19. In the case supreturn voyage. The question is whether the posed the name given to the pigs of lead is damage to the cargo was "damage or loss not important in itself, to be sure, but may resulting from faults or errors in navigation indicate a difference in the purpose and or in the management of said vessel,” as was character of the change of place. If the set up in the answers, in which case the primary purpose is to affect the ballast of owner was exempted from liability, by § 3 the ship, the change is management of the of the Harter act, or whether it was “loss vessel; but if, as in view of the findings we or damage arising from negligence, fault, must take to have been the case here, the or failure in proper loading, storage, cus- primary purpose is to get the cargo ashore, tody, care, or proper delivery" of merchan- the fact that it also affects the trim of the dise under § 1 of the same, in which case vessel does not make it the less a fault of he could not stipulate to be exempt. The the class which the first section removes second section also recognizes and affirms from the operation of the third. We think the "obligations” to carefully handle and' it plain that a case may occur which, in dif

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(196 U. S. 563) ferent aspect falls within both sections; , WILLIAM H. McCAFFREY, Edward Quigand if this be true, the question which sec

ley, 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. A distinction was hinted at in argument, based on the fact that the damage was not Wills-constructionintention of testator to the cargo removed, but to that left behind governs-indefinite devise of lands. in the ship. If the damage was attributable to negligence in unloading, it does not mat. The evident intention of a testator to dispose of ter what part of the cargo is injured. The

his whole estate by a will making all his heirs.

at law devisees, with a special aim at equality fact referred to does bring out, however,

among them, particularly evidenced by chargthat the negligence in removing the cargo ing the funeral expenses and the testator's was negligence only because of its probable debts upon that devisee who was given a effect on the ship, and was negligence to

greater quantity of realty than the others, wards the remaining cargo only through its

prevents the application of the rule that de

vises of land without words of limitation or effect on the ship. But, although this may description pass nothing but a life estate. * be conceded, the criterion which we have given is undisturbed. That “in” which, as

[No. 131.] the statute puts it, the fault was shown, was not management of the vessel, but un- argucd January 17, 18, 1905. Decided Feb. loading cargo; and, although it was fault

ruary 20, 1905. only by reason of its secondary bearing, the primary object determines the class to which APPEAL. from the Court of Appeals of the

District It is settled by repeated decisions that the which affirmed a decree of the Supreme Harter act will be applied to foreign vessels Court of that District, construing a will as in suits brought in the United States. The devising life estates only. Reversed and reScotland (National Steam Nav. Co. v. Dyer) manded with directions to reverse the decree 105 U. S. 24, 26 L. ed. 1001; The Chatta- of the Supreme Court, and to remand the hoochee, 173 U. S. 540, 43 L. ed. 801, 19 Sup. cause to that court for the entry of a decree Ct. Rep. 491. The claimant sets up the act in accordance with this opinion. and relies upon it. Under the cases it must

See same case below, 22 App. D. C. 385. take the burdens with the benefits, and no discussion of the terms of the bills of lading,

Statement by Mr. Justice McKenna: if they might lead to a greater limitation construction of the will of Hugh McCaffrey,

The question involved in this case is the 'of liability, is necessary. Knott v. Botany deceased. It was duly admitted to probate, Worsted Mills, 179 U. S. 69, 45 L. ed. 90, and recorded in the supreme court of the 21 Sup. Ct. Rep. 30; The Kensington, 183 District. It is as follows: U. S. 263, 269, 46 L. ed. 190, 193, 22 Sup. Ct. Rep. 102. Some of the bills of lading in Washington, District of Columbia, evidence contain a clause to the further ef

April Thirtieth, 1896. fect that the shipowners, if liable for a loss In the name of God, being now in good capable of being covered by insurance, shall health and sound in mind and body I hereby have the benefit of any insurance on the certify and declare this to be my last will goods. But these bills of lading were for and testament, hereby annulling and revoktransport to Liverpool, and while they pro- ing any and all wills previously made. vided for forwarding the goods at ship's ex- I give and bequeath to my daughter Mary pense to New York, the forwarding was to A. Quigley house number 301 at southwest be on bills of lading issued by the steamer corner of 11th and C streets southeast, being sailing to that port, and subject to the stipu- in lot number 5 in square 970, with the store lations, exceptions, and conditions in those and dwelling, stock and fixtures, and lot on bills. We see no occasion to consider the which it stands, also houses numbers 13 and questions which might be raised if the same 15 6th street southeast with lots on which stipulations were contained in the bills of they stand, being parts of lots 19 and 20 in lading to New York. See Liverpool & G. W. square 841, also any money in bank to my Steam Co. v. Phenix Ins. Co. 129 U. S. 397, account at the time of my death, also any 463, 33 L. ed. 788, 799, 9 Sup. Ct. Rep. 469 ; money due to me, also any building associaInman v. South Carolina R. Co. 129 U. S. tion stock. She is to pay funeral expencies 128, 32 L. ed. 612, 9 Sup. Ct. Rep. 249; and any other legal debts I may owe, also Phoenix Ins. Co. v. Erie & W. Transp. Co. to care for my lot in Mount Olivet ceme117 U. S. 312, 29 L. ed. 873, 6 Sup. Ct. Rep. tery. 750, 1176.

I give and bequeath to my son, James B. Decree affirmed.

McCaffrey, house number six hundred and two (602) East Capitol street and lot on | George W. Manogue. Upon an attempt to which it stands, being in lot number ten sell the property devised by Francis T. Mc(10) in square number eight hundred and Caffrey, a doubt was raised as to the extent sixty-eight (868).

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

of the interest devised to him and the other To my son, William H. McCaffrey, I give devisees by the will of H. McCaffrey,and bequeath house 604 East Capitol street, whether an estate for life or in fee simple. being in lot number ten (10), in square This suit was brought "to have it deternumber eight hundred and sixty-eight (868) mined what estate each of the said devisees and lot on which it stands.

took thereby, and to have their title quieted To my daughter, Lizzie Manogue, I give as against any person or persons who may and bequeath house number fourteen hun-claim adversely to the same as heirs of said dred and twenty-three (1423) Corcoran Hugh McCaffrey, or under such heirs." street, N. W., and lot on which it stands, It was decreed by the trial court that only being lot number fifty-four (54) in square life estates were devised by the will, and the number two hundred and eight (208). decree was affirmed by the court of appeals.

2. To my son, Francis T. McCaffrey, I give 22 App. D. C. 385. and bequeath house five hundred and nineteen (519) East Capitol street, and lot on Messrs. Arthur A. Birney, O. B. Halwhich it stands, being part of lot number lam, and Henry F. Woodard for appellants. (20) in square eight hundred and forty-one Messrs. Edwin Forrest and A. A. (841), also my horse and buggy.

Hoehling, Jr., for appellees. And to my grandson, Frank Foley, I give and bequeath house number one hundred and Mr. Justice McKenna, after stating the twenty-one (121) Eleventh street, S. E., case, delivered the opinion of the court: being in lot number fourteen (14), square

It will be observed that the devises are number nine hundred and sixty-eight (968), expressed in exactly the same way. To and lot on which it stands.

Mary A. Quigley, however, there are given To my grandson Joseph Quigley, I give several pieces of real estate, the money of and bequeath my watch and chain.

the testator in bank, and his building assoI hereby name and appoint as executors of ciation stock. She is charged with the paythis my last will and testament, John E. ment of the testator's funeral expenses and Herrell and Patrick Maloney.

debts; also with the care of his cemetery All the real estate herein described is lo- lot. Nevertheless, neither of the lower cated in the city of Washington, District of courts distinguished between the devisees,Columbia.

to all was applied the rule of law that a Hugh McCaffrey. [Seal.]

devise of land, without words of limitation

or description, gives a life estate only. The The devisees in the will were the only court of appeals held that the charge or heirs of the testator.

burden upon Mary A. Quigley to pay the On the 10th of July, 1897, Mary A. Quig- funeral expenses and debts of the testator ley died, leaving surviving four children, the was offset by the gift to her of personal appellants Catherine L., Margaret, Mary, property. It is insisted that the ruling is

, and Joseph Quigley. Edward Quigley, her contrary to the decision in King v. Ackerhusband, also an appellant, survived her. man, 2 Black, 408, 17 L. ed. 292. It is there She left a will, which was duly admitted to said: “The rule of law which gives a fee record, by which she devised all her estate where the devisee is charged with a sum of to Catherine L. and Edward Quigley, in money is a technical dominant rule, and intrust for her children. Francis T. McCaf-tended to defeat the effect” of the artificial frey, son of Hugh, and one of the devisees in rule established in favor of the heir at law, the latter's will, died October 20, 1898, leav- that an indefinite devise of land passes nothing as heirs at law his brothers and sisters, ing but a life estate. It was, however, apthe children of his deceased sister, Mary A. parent to the court of appeals that to follow Quigley, and his nephew, Frank Foley. He King v. Ackerman would not execute the in. left a will, by which he devised and be- tention of the testator by opposing one techqueathed all of the property to his sister, nical rule by another, but would discrimiLizzie C. Manogue, and his brothers William nate between his heirs, and destroy the A. and James B. McCaffrey, "absolutely and equality between them which it was the purin fee simple, according to the nature of the pose of the will to create. To effect this property, as tenants in common, but not as equality the court selected not the "domijoint tenants.” At the time of his death he nant rule,” whose virtue this court pointed was seized and possessed of the real estate out, but the other, regarding it the most devised to him by his father.

commanding. It is altogether a strange tanJames B. McCaffrey has sold and conveyed gle of technicalities. Apply either of them or the lot devised to him to the respondent 'both of them, and we defeat the intention of

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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

“Where there are no words of limitation possesses an estate which can be devised to to a devise, the general rule of law is that or inherited by his or her children. the devisee takes an estate for life only, un- Against the effect of the heirs at law of less, from the language there used or from the testator being also his devisees, it may other parts of the will, there is a plain in- be said that it has been held that, though tention; because if it be doubtful or con- a testator has given a nominal legacy to his jectural upon the terms of the will, or if full heir, or declared an intention to wholly dislegal effect can be given to the language inherit him, the inflexibility of the rule in without such an estate, the general rule pre- favor of the heir has been enforced. Frogvails. It is not sufficient that the court may morton ex dem. Wright v. Wright, 2 W. BI.

. entertain a private belief that the testator 889; Roe ex dem. Callow v. Bolton, 2 W. Bl. intended a fee; it must see that he has ex-1045; Right v. Sidebotham, 2 Dougl. K. B. pressed that intention with reasonable cer- 59; Roe ex dem. Peter v. Daw, 3 Maule & S. tainty on the face of his will. For the law 518. will not suffer the heir to be disinherited In Right v. Sidebotham, Lord Mansfield upon conjecture. He is favored by its pol- felt himself constrained to enforce the rule, icy; and though the testator may disinherit but he observed in protest: “I verily believe him, yet the law will execute that intention that, in almost every case where by law a only when it is put in a clear and unambig. general devise of lands is reduced to an esuous shape.” (Italics ours.)

tate for life, the intent of the testator is We think the intention of McCaffrey is thwarted; for ordinary people do not dis"put in a clear and unambiguous shape.” He tinguish between real and personal property. intended to dispose of his whole estate. It The rule of law, however, is established and is true there is no introductory clause ex certain, that express words of limitation or pressing such intention, but there is no resid-words tantamount are necessary to pass an uavy clause indicating that he intended to estate of inheritance.” And he hence conpass less than all of his estate. And all of cluded that words tending to disinherit the his heirs at law were his devisees. In other heir at law, unless the estate is given to words, the very heirs for whom the rule is in- some one else were not sufficient to prevent voked are those among whom he distributed the heir from taking. his property, and surely he intended a com- Lord Ellenborough, in Roe ex dem. Peter plete distribution, -.to vest in each the largest v. Daw, followed the rule, and declared also interest he could give, not assigning life es that he thereby probably defeated the intentates with residuary fees to the very persons tion of the testator. It is a strange concluto whom such life estates were devised. In sion from the facts, and needs the sanction other words, making each heir the successor of those great names to rescue it from even of the other and of himself. It was evident stronger characterization. Lord Mansfield to the court of appeals--it is evident to us-spoke in 1781, Lord Ellenborough in 1815. that he intended to make lis heirs equal. We cannot believe, if called upon to interOf this purpose the charge upon his daugh- pret a will made in 1896, when the rights of ter, Mary A. Quigley, is dominantly signifi- heirs are not so insistent, and the rule in cant, not only in effect, but in its expression. their favor lingers, where it lingers at all, She is given a greater quantity of real es almost an anachronism,—when ownership of tate than the other devisees. She is given real property is usually in fee, and when personal property besides; “But,” declared men's thoughts and speech and dealings are the testator, "she is to pay funeral expenses with the fee,-- they would hold that the and other legal debts I may owe, also to care' purpose of a testator to disinherit his heirs

25 S. C.-21.


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

But, perhaps, even the severe technicality visions made by him for the objects of his of those cases need not be questioned. In bounty than by confining their attention to the construction of wills we are not required one isolated paragraph, probably drawn up to adhere rigidly to precedents. We said in without a knowledge of technical words, or Abbott v. Essex Co. 18 How. 202, 213, 15 L. without recollecting the advantage of using ed. 352, 355:

them." If wills were always drawn by counsel The devise to Gregory C. was held to be learned in the law, it would be highly proper of the fee. that courts should rigidly adhere to prece

From these views it follows that the dedents, because every such instrument might cree of the Court of Appeals must be, and justly be presumed to have been drawn with it is, reversed, and the case is remanded to reference to them. But in a country where, that court with directions to reverse the from necessity or choice, every man acts as decree of the Supreme Court, and remand his own scrivener, his will is subject to be the case to that court, with directions to perverted by the application of rules of con- enter a decree in accordance with this opinstruction of which he was wholly ignorant.” ion.

To like effect is Cook v. Holmes, 11 Mass. 528, where the will passed on contained the

Mr. Justice Peckham dissents. following devise: "Item. To his grandson Gregory C., only child of his son Daniel C.,

(196 U. S. 511) deceased, a certain piece of land in Water

UNITED STATES, Appt., town, containing about 6 acres.” The will contained devises to other sons of pieces of

ALBERT C. ENGARD. real estate, charging them with payment of certain legacies. The will concluded as fol

Navysea pay for shore duty-presumption lows: "The above-described legacies, together with what I have heretofore done for

of temporary character of shore duty. my children and grandchildren, make them Shore duty performed by a naval officer in obedlnearly equal, and are their full portions of ence to an order of the Navy Department my estate."

which expressly imposed upon him the conThe will, therefore, is similar to the will

tinued discharge of his sea duty, and qualified

the shore duty as merely temporary and ancilin the case at bar. Equality between the

lary to such sea duty, will be presumed not to devisees is as much the purpose of one as

be so incompatible with his permanent sea asthe other, though it is expressed in one and signment as to cause the latter to terminate deduced as an implication in the other. and defeat his right to sea pay while engaged Chief Justice Parker, in delivering the opin

on such shore đuty. * ion of the court said: “The quality of the

[No. 136.] estate which Gregory C. took by the devise must be determined by the words of the will, Argued January 18, 1905. Decided Febtaken together, and receiving a liberal con

ruary 20, 1905. struction, to effectuate the intention of the testator as manifested in the will." Further: "The words of the particular de

view an award of sea pay to a naval offivise to Gregory, considered by themselves, cer while engaged on shore duty. Affirmed. certainly give no inheritance.” And stating See same case below, 38 Ct. Cl. 712. the rule of law to be, as contrasted with the popular understanding, “that such a devise,

Statement by Mr. Justice White: standing alone, without any aid in the construction from other parts of the will, Somewhat condensing the facts below would amount only to an estate for life in found, they are as follows: In February, the devisee," added :

1897, Chief Engineer Albert C. Engard was “But it is too well established and known performing duty as the chief engineer of the to require argument or authorities now to United States receiving ship Richmond, at support the position that devises and lega- League Island, Pennsylvania. On the 11th cies in a will may receive a character, by of February he received the following order construction and comparison with other from the Navy Department: legacies and devises in the same will, different from the literal and direct effect of

Navy Department, the words made use of in such devise; (cases

Washington, February 11, 1897. were cited in note) and this because the sole Sir:duty of the court in giving a construction is Report by letter, to the president of the to ascertain the real intent and meaning of '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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