guilty of adultery in the following July. If the earlier offenses were condoned, as she testifies, it was upon an implied condition of future fidelity. By her violation of that condition she has revived the original grievance and has debarred herself from the only defense upon which she has sought to rely. The alleged condonation having been rendered ineffective by the defendant's later misconduct, and the marital offenses which prompted the suit having been thus restored as an existing and proven cause of divorce, the plaintiff was entitled to relief upon that ground. The decree will therefore be reversed, and the cause remanded to the end that a decree may be passed divorcing the parties a vinculo matrimonii.

Decree reversed, and cause remanded; the appellant to pay the costs.

(130 Md. 338)

TOLSON v. BRYAN et al. (No. 21.) (Court of Appeals of Maryland. Feb. 15, 1917.) 1. PARTITION 13 REMEDY-COTENANTSEFFECT OF ESTATE IN REMAINDer.

Under Code Pub. Civ. Laws, art. 16, § 137, providing that the court may decree a partition of any lands, tenements, or hereditaments, or any right, interest, or estate therein, either legal or equitable, on the bill or petition of any joint tenant, tenant in common, or any parcener any concurrent owner, whether claiming by descent or purchase, or if it appear that said iands, tenements, or hereditaments, or right, interest, or estate therein cannot be divided with out loss or injury to the parties interested, the court may decree a sale thereof, and a division of the money arising from such sale among the parties, according to their respective rights, etc., the purchaser from a joint devisee could maintain partition and sale against heirs of the other joint devisee, whose will created a life estate and remainder.

mon B. Hopper, and Wm. H. Adkins, Judges. Petition by John C. Tolson against Annie E. Bryan and others. Decree dismissing the bill, and complainant appeals. Reversed and remanded.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

Albert C. Tolson, John C. Tolson, and Wil

liam L. Stuckert, all of Baltimore, for appellant. J. Frank Harper, of Centreville, for appellees.

BOYD, C. J. This is an appeal from a decree sustaining a demurrer to and dismissing the bill of complaint filed by the appellant against the appellees for the purpose of having the property described in it sold, on the ground that it cannot be partitioned without loss or injury to the parties interested. Catherine A. Bryan by her last will and testament devised to Minnie P. Bryan, her daughter, and Thomas E. Bryan, her husband, the property in question in fee simple. After the death of Catherine A., Thomas E. Bryan married again, and had six children by his second wife, Annie E. He conveyed his interest in the property to his wife, Annie E., for life, with remainder over to the heirs of his body of his wife, Annie E., lawfully begotten. Minnie P. Bryan conveyed her interest to the appellant, and the appellees are the widow and children, by his second wife, of the said Thomas E. Bryan, together with the wife of one of said children and the husband of another. The question in the case is whether under our statute (section 137. art. 16, Annotated Code) the appellant, who is owner of an undivided half of the property, is entitled to a decree for the sale of the property, it being conceded by the demurrer that it is incapable of partition. It appears from the bill that the will of Catherine A. Bryan and the deed from Thomas E. Bryan were construed by the circuit court for Queen Anne's county, but there was no appeal to this court, and we have not been call3. PARTITION 111(1)—RIGHT AND REMEDY ed upon to pass on that decree. We under-COTENANTS EFFECT OF ESTATE IN RE- stand it to be conceded, and the demurrer Where purchaser from a joint devisee admits, that Minnie P. Bryan and Thomas brought partition against heirs of the other joint E. Bryan each took an undivided half interdevisee, whose will created a life estate and re-est in fee in the property, and that the chilmainder, a court of equity could equitably dis-dren of Thomas E. Bryan by his second wife tribute the proceeds among such heirs.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 36-81.]

2. PARTITION 14 RIGHT and RemedyCOTENANTS.

If co-owner complies with the requirements of the statute entitling him to partition the court has no power to prevent relief.

[Ed. Note. For other cases, see Partition, Cent. Dig. § 37.]

MAINDER.

[Ed. Note. For other cases, see Partition, hold the undivided half formerly owned by Cent. Dig. §§ 401-407, 410, 411.] him, subject to the life estate of their moth

4. PARTITION 78 RIGHT AND REMEDY-er, and that the appellant now holds the unCOTENANTS-EFFECT OF ESTATE IN REMAIN- divided half formerly belonging to Minnie P. Bryan. All of the parties in interest are of age.

DER.

Where property can be partitioned in kind, the tenant for life under will of one joint devisee could have set apart for her life the share to which such joint devisee would have been entitled.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 265-273.]

Section 137, art. 16, is as follows: "The court may decree a partition of any lands, tenements or hereditaments, or any right, interest or estate therein, either legal or equitable, on the bill or petition of any joint tenant, tenant in common, or any parcener or any concurrent owner, whether claiming by descent or Appeal from Circuit Court, Queen Anne's purchase, or if it appear that said lands, tene County, in Equity; Albert Constable, Philements or hereditaments, or right, interest, or

tate for a long term, it is necessary that the tenant should be made a party to the bill in order that he may be required to join the lessor in the deed of severance; but, in a case like the present, where a sale is to be made of the estate, no such necessity could exist."

Certain it is that there have been many cases

proceed against the other. If a tenant in common, concurrent owner, or other person embraced by the terms of section 137, art. 16, could, by creating a life estate in his interest with a remainder to another or others, defeat In Shipley v. Tome Institute, 99 Md. 520, the right to partition, it might, in some cas58 Atl. 200, the bill as amended was for es, result in tying up the interest of co-owners for many years. partition. A life estate and remainder in a It may sometimes hapfourth interest were involved, but demurrers pen that a co-owner does great injustice to to the bill were overruled, although they others by insisting upon a partition or sale, were sufficient to raise the question whether but it is a well-established right, and if he the interest of a life tenant and of remain-complies with the requirements of the statdermen in an undivided interest in property ute the court has no power to prevent it. could be sold in partition proceedings. In Numsen v. Lyon, 87 Md. 31, 39 Atl. 533, a de- where partitions or sales would have been cree that the land should be sold for the pur-prevented by the parties, if that could have pose of partition was before the court. One been done simply by creating a life estate with remainder over. of the daughters of John King, in contemplation of marriage with Edgar G. Taylor, conveyed in conjunction with him to a trustee all of her property of every kind, by which deed she reserved a life interest, and at her death it was to be held for the use of any descendants she had living at the time of her death, etc. Mr. and Mrs. Taylor were parties to the suit. The court held that the title was defective because there were two living children of Mrs. Taylor, and they and the trustee ought to have been made parties, but the opinion went on to say:

"If all the interests in remainder had been represented the decree would have bound them, and it would have been the duty of the court to order the portion of the fund distributable to the parties entitled under the Taylor deed to be invested for their benefit. The receipt by Mrs. Taylor, of the one-fourth part of the proceeds of sale cannot bind the estate in remainder after her death."

In Billingslea v. Baldwin, 23 Md. 85, the 'bill was filed in the lifetime of the devisee for life and a decree for the sale of the remainder for purposes of partition was sustained.

[2] Other cases in this state might be cited, but we do not deem it necessary. Minnie P. Bryan and Thomas E. Bryan were the devisees of the property in question under the will of Catherine A. Bryan. There could, of course, have been no question about the right of either of them to have proceeded against the other for partition, or a sale if not susceptible of partition, as long as they were the owners. Nor can there be any doubt about the right of the assignee of either to

[3] There can be no difficulty about the A court of equity disposition of the fund. has the power to direct the investment of the proceeds of the one-half interest due the defendants for the benefit of the life tenant during her life, with direction for its payment to the remaindermen at the termination of the life estate, or the life tenant and the remaindermen could enter into an agreement by which it could be paid over at once, either to the life tenant or to the remaindermen as may be agreed upon, or the life tenant could agree to accept such share as she, as life tenant, may be entitled to. If they cannot agree, then it will be the duty of the court to have the fund properly invested, in case a sale of the property is made under a decree of the court, passed in pursuance of the prayers of the bill.

[4] If the evidence shows that the property can be partitioned in kind, it can be done under such prayers as are now in the bill. Rowe v. Gillelan, 112 Md. 103, 76 Atl. 500. In that event the life tenant would be entitled to a life estate in what is set apart to the defendants. By agreement the one-half of the property could be set apart to the children of Annie E. Bryan, subject to her life estate. Godwin v. Banks, 89 Md. 679, 683, 43 Atl. 863.

It follows from what we have said that the decree must be reversed, and the defendants should be required to answer within such time as the lower court may allow, after the mandate from this court is received.

Decree reversed and cause remanded, the appellee to pay the costs.

HOWARD COAL CO. v. SAVAGE et al.

The writ was served the third time upon the alleged trustee on the 15th day of April, and

(116 Me. 115)

(Supreme Judicial Court of Maine. March 29, there was due and payable to the said prin

1917.)

130-WAGES - SUCCESSIVE

EXEMPTIONS
GARNISHMENTS.
Under Rev. St. 1903, c. 88, § 55, par. 6,
providing that no person shall be adjudged a
trustee by reason of any amount due from him
to the principal defendant as wages for per-
sonal labor for a time not exceeding one month
next preceding the service of process and not
exceeding $20 of the amount due to him as wa-
ges for his personal labor, the principal defendant
is entitled to exemption of $20 on each of three

successive trustee attachments.

[Ed. Note. For other cases, see Exemptions, Cent. Dig. § 159.]

Report from Supreme Judicial Court, Sagadahoc County, at Law.

Action by the Howard Coal Company against Melvin H. Savage and the Bath Iron Works, Limited, trustee. Case reported. Trustee discharged, with costs.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MAD

IGAN, JJ.

Walter S. Glidden, of Bath, for plaintiff. Joseph M. Trott, of Bath, for alleged trustee.

cipal defendant as wages for his personal labor for the week next preceding said service the sum of $9.55, and the same was not held by said alleged trustee, but was paid over to said principal defendant, as the trustee claims, in compliance with the statute.

Paragraph 6 of section 55, chapter 88, R. S. 1903, provides:

No person shall be adjudged a trustee "by reason of any amount due from him to the principal defendant, as wages for his personal labor, or

that of his wife or minor children, for a time
not exceeding one month next preceding the serv-
ice of the process, and not exceeding twenty
his personal labor."
Idollars of the amount due to him as wages for

As said by the court in Pike v. Bannon and Trustee, 115 Me. 124, 98 Atl. 68:

"The history of this subsection of section 55, chapter 88, R. S., as shown in its various amendments and the decisions of the court, make it clear that this subsection exempts the amount due principal defendant for his personal labor, or that of his wife or minor children, earned during a period not exceeding one month next prior to service of process with the limitation that the amount so exempt shall not, when the amount in the hands of the trustee is due principal defendant as wages for his own personal labor, exceed the sum of $20, and when earned within a period more than one month prior to such service the amount shall be limited to $10."

串

It is urged by counsel for plaintiff that the principal defendant is not entitled to an exemption of $20 upon each of the successive trustee attachments, but that the amounts due him at the time of each service should be added together, which makes a total of $32.44, all of which were admittedly earned within a month and the $20 exemption deducted therefrom. The decisions of this court are to the contrary. In Haynes v. Thompson and Trustee, 80 Me. 125, 13 Atl. 276, the court held:

"The trustee cannot be charged for the sum exempted for personal labor by R. S. twenty dollars earned within one month prior to each service on the trustee."

HALEY, J. This is an action of assumpsit on account annexed for coal furnished the defendant, brought in the Bath municipal court, where judgment was rendered against the principal defendant for $9.30 damages, and $5.70 costs. Upon a disclosure upon the same day the trustee was charged for $12.24, less its costs. Judgment was rendered accordingly, and from that judgment the trustee appealed to the next term of the Supreme Judicial Court for the county of Sagadahoc, at which court the case was reported to this court upon an agreed statement of facts as to the liability of the trustee, from which it appears that the defendant was in the employment of the trustee as a watchman, and that the trustee, in compliance with the statute, paid the wages earned by the employés up to and including Wednesday of each week, upon the following Saturday. The writ was served three times upon the alleged trustee. The first day of April, the day of the first service, there was due and payable to the principal defendant for his personal labor for the week next preceding said service the sum of $10.93, and the same was not held by the said alleged trustee, but was paid over to the principal defendant, as the trustee claims, in compliance with the statute. At the date of the second service upon the trustee, on the 8th day of April, 1916, there was due and payable to the principal defendant for his "The provision authorizing further service upon trustees may have its full fair effect, withpersonal labor for the week next preceding out applying it to cases in which the garnishee's said service the sum of $11.76, and the same indebtedness would have been securely held by was not held by the said alleged trustee, but the first service, had it not been specially exwas paid over to said principal defendant in We are not willing to hold that a creditor, empt by another section of the same statute. compliance, as he claims, with the statute. I whose demand though otherwise valid

In Quimby v. Hewey, 92 Me. 129, 42 Atl. 344, there were three services on the trustee: At the time of the first service there was nothing due the defendant; at the time of the third service, $16.31; and the court held that these sums, being less than $20 at the time of each service, were exempt from attachment.

In Collins v. Chase, 71 Me. 435, a case in which an attempt was made to hold under a second service what was exempt at the time of the first service, it was held that the exemption still continued, the court saying:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

may take away the small sum which the Legislature has granted to the laborer's necessities, by manipulations of legal process under another section designed to accomplish other and legitimate ends. We think, on the contrary, that what would have been lawfully attached under the first service on the trustee, had it not been specially exempted by statute from attachment, ought not to be held under a further service, merely because it was retained in the garnishee's hands by means of the first."

On Motion from Supreme Judicial Court, Androscoggin County, at Law.

Action by Anthony Jozkewicz, administrator of John Shenkunis, deceased, against the Worumbo Manufacturing Company. On defendant's motion for new trial after verdict for plaintiff. Motion overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and MADI

In Hall v. Hartwell and Trustee, 142 Mass.- GAN, JJ. 447, 8 N. E. 333, the same claim was urged H. E. Holmes, of Lewiston, and W. R. by the plaintiff as is urged in this case. The Pattangall, of Augusta, for plaintiff. McMassachusetts statute at that time exempted Gillicuddy & Morey, of Lewiston, for de$10 from attachment on trustee process, and fendant. the court stated:

"The plaintiff contends,

tate of John Shenkunis, to recover of the defendant damages for injuries which the plaintiff's intestate sustained by reason of which he died. The verdict was for the

plaintiff for the sum of $2,150. The case is before this court on a motion for a new trial.

although PER CURIAM. This is an action brought the writ was served upon the trustee several by the plaintiff, as administrator of the estimes, the various services constituted one attachment; and that, when the second and all later services were made, the trustees were bound to bear in mind that they had already reserved and paid over $8 to the principal defendant (that being the amount due him at the time of the first service), and that they were only entitled to reserve and pay over $10 in all. But we think the statute should receive a broader construction. The intention The plaintiff's intestate met his death by was, to enable persons whose earnings are small and often payable to receive the whole of them, falling into a vat or kettle of boiling dye, without the risk of their being intercepted by which scalded him so badly that he died the trustee process. Otherwise, a diligent cred- some hours afterwards. At the time of the itor, by making numerous successive services, would reach and appropriate a large portion of accident he was a servant of the defendant, the earnings of persons who might be depend- and just before the accident was turning a ent upon the immediate product of their labor reel standing upon a platform that was for the necessary support of themselves and The acts of their families. If the defendant had worked placed alongside of the vat. at the rate of $8 a week for four different per- negligence complained of were the failure to sons in succession, a week for each, it would provide a platform of sound wood, and to hardly be contended that the plaintiff, by sum- keep the same in repair, and failure to promoning each of them as trustee as soon as his vide a platform held together with safe fasindebtedness to the defendant accrued, would hold the surplus of their united indebtedness teners and to keep the same in repair. The to him, after reserving $10. The defendant defendant pleaded contributory negligence should not be any worse off because he continued in the employment of the same firm. It is more conformable to the obvious intention and policy of the statute to hold that $10 should be reserved at the time of each service. And such construction is in accordance with the spirit of the cases cited by the trustees"-citing, among other cases, Collins v. Chase, su

JOZKEWICZ v. WORUMBO MFG. CO.
(Supreme Judicial Court of Maine. March 30,
1917.)

MASTER AND SERVANT 278(3)—INJURIES TO
SERVANT NEGLIGENCE OF MASTER - SAFE
PLACE TO WORK-EVIDENce.

upon the part of Shenkunis, but the evidence authorized the finding of the jury that he was not guilty of contributory negligence. Immediately after Shenkunis was discovered in the boiling vat, it was discovered that one of the plank supports upon which the platform stood was broken. The platform was repaired a few days before the accident, and was before the jury for examination, and also before this court at the argument.

We think, from an examination of the platform, that the jury were authorized to find that the wood with which it was repaired was not suitable for the purpose for which it was used. It was not sound wood. No one saw Shenkunis fall into the vat, but a careful consideration of all the evidence and circumstances as disclosed at the time of the accident we think did authorize the

In action by administrator of a deceased jury to find that the accident happened by workman for alleged wrongful death, evidence that a platform on which deceased stood over a reason of one of the plank supporting the vat of boiling dye had been repaired with un- platform, which had been defectively repairsound wood, which broke, precipitating deceased, breaking, which caused him to fall into ed into the vat, while not conclusive of the mas- the vat. Of course it is not proved concluter's liability, since it does not negative contributory negligence, is nevertheless sufficient sively. Accidents of this kind cannot be provto sustain verdict for plaintiff. ed beyond a reasonable doubt, but all the [Ed. Note.-For other cases, see Master and circumstances and probabilities we think auServant, Cent. Dig. § 958.] thorized the jury to find negligence of the