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collateral manner. The rule as to the description is very strict, where the question is made in the condemnation proceedings. Indianapolis, etc., Co. v Newsom, 54 Ind. 121; Midland Ry. Co. v. Smith, ante, 474, (December 23, 1886.)
There are, however, obvious reasons why the rule declared in these cases should not apply where the objection is not made until after the judgment of the condemnation proceedings has been entered, and the assessment paid into court. It is a principle, running through many cases, and enforced in many forms, that an objection made seasonably, and in the original proceedings, will be given force which would be utterly unavailing in a mere collateral attack. We can perceive no reason why the general principle should not apply here, for the judgment of the court in the condemnation proceedings must settle all questions as to the sufficiency of the instrument of appropriation, or else it settles none.
The general doctrine which must rule this case was asserted in Indiana, etc., Co. v. Louisville, etc., Co., 107 Ind. 301, S. C. 7 N. E. Rep. 244, and is decisive of the controversy. The case now in hearing is much stronger than the case referred to, for here the land-owner took part in the examination made by the commissioners, after having appeared and objected to the proceedings. If the description was deemed insufficient, it ought to have been objected to at the proper time, and it is now too late to raise that question.
We do not decide, or mean to decide, that the description is insufficient in any material respect. On the contrary, we incline to the opinion that it should be held sufficient, no matter what the form of the attack. The familiar principle so often applied in determining the sufficiency of descriptions probably applies here; for this description can be made certain, and that which can be made certain is so in law. The map or profile required by the statute, together with the monuments referred to in the description, it seems to us, supply means for fully and accurately identifying the land. But we need go no further in this case than to decide that there is some description of the land, and that, as it was sufficient to indicate to the owner what the railroad company desired to appropriate, the owner cannot, after having appeared in the condemnation proceedings, and making no objection to the description, maintain an action to recover the land. Judgment affirmed.
(143 Mass. 206)
LINCH 0. SAGAMORE MANUFG Co. (Supreme Judicial Court of Massachusetts. Bristol. January 5, 1887.) MASTER AND SERVANT-DEFECTIVE STEAM-PIPES—CONTRIBUTORY NEGLIGENCE.
In an action brought by a fireman to recover for injuries received from the bursting of a valve by letting on steam, where it appears that the accident happened be- . cause there was no drip-cock to let the water out of the pipe; that the plaintiff knew the fact that there was no drip-cock, and was aware of the danger of letting on steam without first drawing out the water, as he might have done, and usually did, by opening the valves; that he feared the danger, and let on the steam slowly, with that in mind,-the plaintiff must be held to have assumed the risk, since he entered knowingly on a perilous work, although he did it unwillingly, and at the order of his superior officer. Tort for personal injuries sustained by plaintiff while in the employ of the defendant corporation as a fireman. The plaintiff claimed that the injury occurred in consequence of the want of a drip-cock upon one of the steam-pipes connected with a boiler.. At the trial in the superior court before THOMPSON, J., it appeared from plaintiff's testimony that he had worked in the defendant's mills and other mills some five or six years prior to the accident; that, while at work as a day fireman for the defendant, the mill had occasion to make repairs upon its boilers, and to employ a boiler-man therefor, and the superintendent of the mills told the plaintiff to go with the man who was re
pairing the boilers, and do as he wanted him to do; that the superintendent came to plaintiff about the middle of the forenoon, and told him he wanted him to get up steam in the eighth boiler in the mill, which had not been repaired; that at noon all the hands, including the boiler-man, went to dinner, and the plaintiff remained; that, on the return of the boiler-man, he asked the plaintiff if he had connected the eighth boiler, (meaning if he had turned on steam so as to connect it with the engine and other boilers,) and the plaintiff said he had not; that thereupon the boiler-man asked the plaintiff how much steam there was on, and, being told, said to plaintiff, “You go up and connect.” Plaintiff went up to the top of the boiler to make the connection, and began to turn the valve slowly. The man called out to him if he was never going to open the valve, and asked what was the matter, and asked if he was afraid to open it. Plaintiff turned it about a quarter of a turn as slowly as he could, and then the valve burst, and the water came over him, with steam in it, and caused the injuries to him for which this action is brought.
It further appeared from the testimony of plaintiff that the only drip-cock on the boilers was one in the end of the drum next to the engine-room; that he knew that there were no drip-cocks on the boilers; that, where he had previously worked as fireman, there were drips on all the connecting pipes, otherwise the boilers were the same as those in the mill of defendant; that the object of the drips was to let the water out of the pipes; that he knew that, where there were no drips, there was likely to be water in the pipes, and was afraid to raise steam with water in them, because he feared that something would burst; that he knew that, if there was water in the pipes, he must get it out before he let the steam on; that he usually opened valves so that the water would run out through the boilers. Plaintiff also testified that he knew the valve should be opened slowly to let the steam on; that he was opening it as slowly as he could at the time of the accident, and did not open it any faster on account of what the boiler-man said to him.
It was not claimed at the trial that there was any defect in the valve, and none in the pipe except the want of a drip. The plaintiff contended that the accident was caused by the failure of the defendant to furnish drips at the elbows of the smaller pipe to let such water as might collect therein escape before turning on steam, and that it was a question of fact, upon all the evidence, if he knew the danger to which he was exposed. At the conclusion of the plaintiff's case the defendant asked the court to rule that the plaintiff could not recover, and to direct a verdict for the defendant. The court so ruled, and directed a verdict accordingly, and reported the case to the supreme judicial court for its determination.
Cummings & McDonough, for plaintiff.
Upon all the evidence it was a question of fact for the jury to say in regard to the boilers, and in supplying stop-cocks, etc. Snow v. Housatonic Ry. Co., 8 Allen, 441; Gilman y. Eastern R. R., 10 Allen, 233; Arkerson v. Dennison, 117 Mass. 407; Patrick v. Pote, Id. 297; Wheeler v. Wason Manuf"g Co., 135 Mass. 294. What constitutes due care must depend upon the circumstances of each case. It cannot be defined as matter of law. Gaynor v. Old Colony & N. Ry. Co., 100 Mass. 214; Reed v. Inhabitants of Deerfield, 8 Allen, 524. It is only when there is an entire absence of any facts to authorize the inference that the plaintiff was conducting himself with reasonable prudence and discretion, or the undisputed facts of a case prove actual negligence, that a case like the case at bar should be withdrawn from the jury. Mayo v. Boston & M. R. R., 104 Mass. 140; Fox v. Sackett, 10 Allen, 536. The evidence showed that the plaintiff opened the valve slowly; that he opened it a quarter of a turn as slow as he could, and was exercising due care at the time.
Morton & Jennings, for defendant.
We submit that the evidence offered was immaterial. The defendant had the right to conduct its business in such manner, and with such machinery,
as it saw fit. Ladd v. New Bedford R. Co., 119 Mass. 412; Sullivan v. India Manuf'g Co., 113 Mass. 396.
C. ALLEN, J. This case falls within the rule that where a servant, knowing and appreciating the danger, enters upon a perilous work, even though he does so unwillingly, and by order of his superior officer, he must bear the risk. Russell v. Tillotson, 140 Mass. 201; S. C. 4 N. E. Rep. 231; Taylor v. Carew Manuf'g Co., 140 Mass. 150; S. C: 3 N. E. Rep. 21; Leary v. Boston & A. R. R., 139 Mass. 580; S. C. 2 N. E. Rep. 115; Ferren v. Old Colony R. R., ante, 608. The plaintiff knew the danger from letting on the steam when water was in the pipes. He had this in mind at the time, and that water might be in the pipe. He acted with reference to this knowledge, and let the steam on slowly, because he knew there was danger. He understood the situation. Nobody could have given him any information. The very thing happened which he had in mind and feared. In such case, he must be held to take the risk. It is urged that he did not know that there was water in the pipe. But he knew that it was likely to be there, and acted with reference to this contingency.
Judgment on the verdict.
(143 Mass. 340)
CUMMINGS . CUMMINGS, Ex'r, and others. (Supreme Judicial Court of Massachusetts. Barnstable. January 8, 1887.) 1. HUSBAND AND WIFE-BANK STOCK OF WIFE-REDUCTION TO POSSESSION BY HUSBAND -DECLARATION OF TRUST.
Prior to the statutes fixing the rights of married women to hold property as if sole, two parties were married, and subsequently the wife purchased 10 shares of bank stock, taking the certificate in her husband's name. Several years later he gave to her a paper, stating that the certificate was purchased with her money, and promising to transfer it "to her heirs and executors.” Later still, the bank was reorganized, and the husband, upon his written statement that the old certificate was lost, took a new certificate in his own name, giving the bank a bond of indemnity, and by his will he left the stock to a daughter of his wife. It appeared that the bank had always treated the husband as the owner; that for a time the dividends were banded over to the wife; but after the reorganization of the bank, and the issuing of the new certificate, were received by the husband, and applied to his own use. Held, that the husband had reduced this stock to possession, so as to make it his own, and
that the paper given to his wife would not operate as a declaration of trust. 2. EXECUTORS AND ADMINISTRATORS-BILL IN EQUITY TO RECOVER SHARE OF ESTATE
A bill in equity cannot be maintained against an executor by one of the next of kin, to recover her share in certain property which she claims should be held to be the property of the testator. It is for the probate court to determine, in the first instance, for what the executor should account; and an action to recover for a distrib
utive share cannot, in any event, be maintained, except after a decree of distribution. Bill in equity by the widow of Joseph Cummings against Clara A. Smith and Joseph H. Cummings, children, and the executor of the will of Joseph Cummings, claiming as her own certain personal property bequeathed by Joseph Cummings to Mary A. Wixon, and her share as widow in other personal property in the possession of the defendants, as a part of the estate of Joseph Cummings. Hearing in the supreme court, before DEVENS, J., who reserved the case for the determination of the full court. The facts are stated in the opinion.
C. A. Taber, for complainant.
A husband may be a trustee for his wife, (Perry, Trusts, § 127,) and the doctrine of resulting trusts applies as well to personal as to real property. Farrelly v. Ladd, 10 Allen, 127; Davis v. Coburn, 128 Mass. 377; Childs v. Jordan, 106 Mass. 321. The purpose of Joseph Cummings in transferring the property to his son and daughter was to prevent the plaintiff from receiving her distributive share therein as his widow, and yet to retain the
dividend to himself during his life. He entered into this plan for the purpose of evading the law regulating the distribution of the property of the deceased. Stone v. Hackett, 12 Gray, 227, 232, 233; Davis v. Ney, 125 Mass. 591.
The burden is upon the defendant, in a case of this nature, to show that the donor had competent and independent advice in making gifts of such a character. This rule applies independently of considerations of age and capacity. Rhodes v. Bate, L. R. 1 Ch. App. 252, 257, et seq.; Smith v. Kay, 7 H. L. Cas. 772; Griffiths v. Robins, 3 Madd. 191-193; Cooke v. Lamotte, 15 Beav. 239; Sears v. Shafer, 6 N. Y. 268; Yosti v. Laughran, 49 Mo. 594; Huguenin v. Baseley, 2 Lead. Cas. Eq. 1173 et seq.; Woodbury v. Woodbury, 141 Mass. 329; S. C. 5 N. E. Rep. 275; Comstock v. Comstock, 57 Barb. 453.
The transaction was void as a fraud against the rights of the widow, under the statutes relating to the testamentary disposition of property. Stone v. Hackett, 12 Gray, 227, 232, 233; Davis v. Ney, 125 Mass. 591, 592. The reservation of dividends to accrue till his death from the gift, is an indication of fraud, and strong evidence that the gifts were of a testamentary character. Turner v. Jennings, 2 Vern. 612, 685; Jones v. Martin, 5 Ves. 266, note; Lewis v. Madocks, 8 Ves. 150, 157; Fortescue y. Hennah, 19 Ves. 6770; Logan v. Wienholt, 7 Bligh, 53, 54, 86-88; Stone v. Stone, 18 Mo. 389; Davis v. Davis, 5 Mo. 183; Chase v. Redding, 13 Gray, 418; Borden v. Jenks, 140 Mass. 562, 564; S. C. 5 N. E. Rep. 623.
The agreement in regard to the note was made on Sunday, and is void. Gen. St. c. 84, § 1; Whart. Cont. 88 382, 496; Benedict v. Bachelder, 24 Mich. 425; Stevens v. Wood, 127 Mass. 123; Bowditch v. New England M. Life Ins. Co., 141 Mass. 292, 294; S. C. 4 N. E. Rep. 798; Cumberland Bank v. Mayberry, 48 Me. 198, 202.
The reservation of interest, as a part of the agreement made at the time of the destruction of the note, shows that the transaction did not constitute an executed contract, but one which was to take effect only at the death of the father, and therefore of a testamentary character.
Powers & Powers, for respondent.
The husband had in the property the absolute common-law rights. Dunn v. Sargent, 101 Mass. 336, 339; Jackson v. Sublett, 10 B. Mon. 467, 469. By force of the common law, this money became, by marriage, the property of the testator, even if he had never exercised control over it. Legg v. Legg, 8 Mass. 99, 101; Ames v. Chew,5 Metc. 320, 322; Washburn v. Hale, 10 Pick: 429, 432, 433; 2 Bl. Comm. 435; 2 Kent, Comm. *143; Jordan v. Jordan, 52 Me. 320; Carleton v. Lovejoy, 54 Me. 445.
At common law, a chose in action to the wife, the consideration of which was money belonging to her at marriage, or subsequently earned by her, was the sole property of her husband. Lamphir v. Creed, 8 Ves. 599, 600; Com. v. Manley, 12 Pick. 172, 175; Shuttlesworth v. Noyes, 8 Mass. 229; Barlow v. Bishop, 1 East, 432; Casey v. Wiggin, 8. Gray, 231, 233. But there was no necessity of reduction to possession by the husband. The wife's possession was only that of her husband, and his act in obtaining the certificate of new stock is strong proof that he had no knowledge of his wife's possession of the old certificate. Rice v. McReynolds, 8 Lea, 36; Conklin v. Conklin, 20 Hun, 278, 281. And, if reduction to possession was necessary, this was effectually accomplished by the husband in obtaining the certificate of new stock, (Arnold v. Ruggles, 1 R. I. 165, 178; Slaymaker v. Bank, 10 Pa. St. 373; Brown v. Bokee, 53 Md. 155;) and by disposing of this stock in his will, (Dunn v. Sargent, 101 Mass. 336, 338, 339.)
There is not the slightest evidence that Joseph Cummings received this stock upon any promise or agreement to hold it in trust for his wife. The written instrument, if it can possibly be construed as a declaration of trust, was given years after this property vested in him, and is void for want of
consideration. This claim against his estate can be enforced neither in law nor equity. Fletcher v. Updike, 5 Thomp. & C. 513, 517; Turner v. Nye, 7 Allen, 176; Degnan v. Farr, 126 Mass. 297, 299; Bridgman v. Bridgman, 138 Mass. 58.
A husband has an absolute right, during his life-time, to dispose of his personal property by sale or gift; and his wife has not a legal right nor such an interest therein that the intent of the donor becomes material, nor can fraud be predicated of his act. Chase v. Redding, 13 Gray, 418, 422; Parish v. Stone, 14 Pick. 203, 204; Marshall v. Berry, 13 Allen, 43, 46, 47; Stone v. Hackett, 12 Gray, 227, 232; Stearns v. Stearns, 1 Pick. 157, 161; Padfield v. Padfield, 78 Ill. 16, 18; Dunnock v. Dunnock, 3 Md. Ch. 140, 146; Hays v. Henry, 1 Md. Ch. 337, 338; 2 Roper, Husb. & W. 16, 18; Kerr, Fraud & M. 220, and note; Stewart v. Stewart, 5 Conn. 317, 321; Cameron v. Cameron, 10 Smedes & M. 394, 397; Holmes v. Holmes, 3 Paige, 363, 364; Pringle v. Pringle, 59 Pa. St. 281, 285; Lightfoot v. Colgin, 5 Munf. 42; In re Parthimer's Estate, 1 Pears. 433, 435; Beck v. Beck, 64 Iowa, 155; S. C. 19 N. W. Rep. 876; Stew. Husb. & W. g 301.
The English decisions, under the custom of London, have no bearing upon this question. Hall v. Hall, 2 Vern. 277; Turner v. Jennings, Id. 612.
A widow, waiving the provisions of her husband's will, has a legal right, as distributee, only to the personal property of which her husband "died possessed." Her title is through his, and not paramount to it. See Pub. St. Mass. c. 135, 3; Rev. St. Mass. c. 64, § 2; Gen. St. Mass. c. 94, § 17; Pub. St. Mass. c. 128, § 6; Acts 1861, § 1; Stearns v. Stearns, 1 Pick. 157, 161.
The finding of the master as to the intent of the donor is an inferential fact, upon which all the evidence is embodied in this report, and is submitted to the decision of this court. Parks v. Bishop, 120 Mass. 340. The act of the donor was irrevocable. Stone v. Hackett, ubi supra. The act of the donor being irrevocable, and possession and dominion having passed to the donees, it is a valid transfer and gift, although some interest or benefit is reserved to the donor. Doty v. Willson, 47 N. Y.580, 584; McKane v. Bonner, 1 Bailey, 113; Young y. Young, 80 N. Y. 422; Viney v. Abbott, 109 Mass. 300, 303; Hildreth v. Eliot, 8 Pick. 293; Falk v. Turner', 101 Mass. 494; Ellison v. Ellison, 6 Ves. 656; Perry v.Cross, 132 Mass. 454; Stone v. Hackett, supra; Hope v. Hutchins, 9 Gill & J. 77; Riegel v. Wooley, 81* Pa. St. 227; Hills v. Hills, 8 Mees. & W.401; Blount v. Burrow, 4 Brown, C. C. 72; Curtis v. Portland Sav. Bank, 77 Me. 151; Davis v. Ney, 125 Mass. 590, 592; Gerrish v. New Bedford Inst. for Savings, 128 Mass. 159; Hale v. Rice, 124 Mass. 292; Clough v. Clough, 117 Mass. 83; Lightfoot v. Colgin, supra; Padfield v. Padfield, 78 Ill. 16, 18.
The complainant has neither legal, equitable, nor moral right to ask that these transactions of stock be declared void. The act of Joseph Cummings, accompanied by his declaration at the time, constituted a valid release of the indebtedness of Joseph H. Cummings upon this promissory note. A valid gift of a debt may be made by the donor delivering to the donee, or destroying with intent of gift, the evidence of indebtedness. Gray v. Barton, 55 N. Y. 68, 73; Bond v. Bunting, 78 Pa. St. 210; Doty v. Willson, ubi supra; Champney v. Blanchard, 39 N. Y. 111. A gift made upon Sunday is valid, since it is not “work, labor, or business," within the meaning of the statutes of this commonwealth. Bennett v. Brooks, 9 Allen, 118, 121; George v. George, 47 N. H. 27; Beitenman's Appeal, 55 Pa. St. 183. A gift is within the statutory exception of “works of necessity or charity.” Bennett v. Brooks, supra; Com. v. Knox, 6 Mass. 76; Cronan v. Boston, 136 Mass. 384; Doyle v. Lynn & B. R. R., 118 Mass. 195. A gift, or a contract, or the rescission of a contract, fully executed upon Sunday, is valid, through the absence of any lega! remedy. Myers v. Meinrath, 101 Mass. 366, 367; Johnson v. Willis, 7 Gray, 164; King v. Green, 6 Allen, 139; Worcester v. Eaton, 11 Mass. 368, 376;