ployer liable to an employé who, without fault, is injured by reason of any defect in the condition of the ways, works, etc., used in the business.

he fell and broke one of his legs; and that he noticed after the accident that some of the nails had come out of the cleat.

It is contended that Riddell was either a

Action by one Morris against the Walworth Manufacturing Company. From the refusal of the court to rule that plaintiff could not recover, defendant brings exceptions. Exceptions sustained.

Hiram P. Harriman, Harry E. Perkins, and John F. Neal, for plaintiff. H. E. Warner, for defendant.

LATHROP, J. The plaintiff was injured while in the employ of the defendant. The declaration contains two counts,-one under St. 1887, c. 270, § 1, and the other at common law. The case comes before us on the defendant's exception to the refusal of the Judge to rule at the close of the evidence that the plaintiff could not recover.

The plaintiff was between 29 and 30 years old. He had been in this country between 5 and 6 years. Before coming here he had done farmer's work, and work as a helper in iron foundries. After his coming, he worked on farms about 5 months, and the rest of the time in factories, on iron work, and for 3 years of the time he helped put up fire escapes on finished and unfinished buildings. He worked on stagings, on platforms, and on planks. The plaintiff was employed by the defendant as a helper at its works in South Boston, and had been so employed a little more than 5 months, working as a helper for everybody. At the time of the accident he was at work on a new building belonging to the defendant. The outer walls were up, and it was roofed in. On the outside of the building was a platform which extended the whole length of the building, and was about 25 feet wide, and 5 feet high from the ground, with steps leading to the ground. There was an opening about 6 feet wide in the wall of the building onto this platform, and there was a brick retaining wall on the inside of the building, extending from the corner of the opening at a right angle; and all the floor space beyond this retaining wall had been filled with ashes, level with the top of the wall. For three days before the accident there had been but one plank, connecting the opening in the outer wall with the retaining wall inside. The plaintiff testified that some of the men put it there; that on the morning of the injury there were three planks laid across this corner, each five or six inches wide, and six, seven, or eight feet long, fastened together by a piece of wood nailed underneath in the middle, and projecting slightly beyond the planks; that he was set to work by one Riddell, and directed to take pipe into the place where the ashes were, and lay them there; that he took one piece in and set it, and on coming out, in walking over the planks, one of them tipped or bent, his toes caught, and

perintendent with the authority or consent of the employer, under St. 1894, c. 499. All the evidence on this point comes from the plaintiff, who, when asked, "What did John Riddell do about there?" said, "He is boss," and, in answer to another question, said he had perhaps six or seven, perhaps more, under him. Without stopping to consider whether this is enough to show more than that he was merely a foreman in charge of a gang, we that Riddell had anything to do with the are of opinion that there is nothing to show planks, or that there was any negligence on his part in respect to them. For aught that appears, the planks were fastened together by some of the fellow workmen of the plaintiff.

We are also of opinion that the planks cannot be considered as ways or works, within the statute. They were used merely for a temporary purpose. Lynch v. Allyn, 160 Mass. 248, 35 N. E. 550; Burns v. Washburn, 160 Mass. 457, 36 N. E. 199; Adasken v. Gilbert, 165 Mass. 443, 445, 43 N. E. 199; Belque v. Hosmer, 169 Mass. 541, 48 N. E. 338.

Nor do we find any evidence that would warrant the jury in finding a verdict for the plaintiff on the count at common law. The plaintiff failed to show negligence on the part of the defendant.

Exceptions sustained.

(181 Mass. 397).

DOBBINS v. LANG et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 21, 1902.) MASTER AND SERVANT-KNOWN DANGER-ASSUMPTION OF RISK.

Where a servant left his machine to seek one of his employers, in order to have a cause of danger to him removed, but, not finding the one sought, returned to the machine, and was injured, he could not recover; the risk having been assumed.

Exceptions from superior court, Suffolk county; Daniel W. Bond, Judge.

Action by Dobbins against Lang and others. From a judgment for plaintiff, defendants bring exceptions. Exceptions sustained.

Frank M. Davis, for plaintiff. Dickson & Knowles and Wm. B. Sprout, for defendants.

BARKER, J. The danger of such an accident as that by which the plaintiff was hurt was not only obvious, but was so clearly and fully known to him, and so clearly appreciated by him, that solely because of it he stopped work, left his machine, and went to find one of the defendants, in order to have the cause of danger removed. Not finding the person whom he sought, he went back to the machine and resumed work, perfectly aware of the danger. This was not

due care, and was an assumption of the risk. He was old enough and intelligent enough to have known better, and, as he acted under neither ignorance nor constraint, he has no cause of action, and the jury should have been so told.

Exceptions sustained.

(181 Mass. 426)

HAYWARD Y. LANGMAID. (Supreme Judicial Court of Massachusetts. Suffolk. May 21, 1902.)

PRINCIPAL AND AGENT-RATIFICATION-NEW

TRIAL-REVIEW.

1. Ratification is the adoption of au act which has been done by one who was in fact acting as an agent, but it is not necessary that he should have been understood to be such by the party with whom he was dealing.

2. The discretion of the presiding justice in ruling on a motion for new trial is not subject, as a general rule, to revision on exception or appeal.

Exceptions from superior court, Suffolk county; J. B. Richardson, Judge.

Action by William Hayward against Dorcas A. Langmaid. There was a judgment in favor of plaintiff, and defendant brings exceptions. Exceptions overruled.

Jos. Bennett, for plaintiff. Edgar R. Champlin and Geo. L. Wilson, for defendant.

MORTON, J. There are two questions in this case: First, whether the instruction that was requested, "that the meaning of ratification in law is the adoption of an act which has been done by one purporting or assuming to act as agent," was properly refused; and, second, whether the motion for a new trial was rightly overruled.

It is evident, we think, that the instruction was understood (and rightly) by the presiding justice to mean that it was necessary to a ratification that the act should have been done by one who represented or held himself out as an agent in respect to the matter to which it related. But such is not the law. It is necessary, in order to a ratification, that the act should have been done by one who was in fact acting as an agent, but it is not necessary that he should have been understood to be such by the party with whom he was dealing. Sartwell v. Frost, 122 Mass. 184; Ford v. Linehan, 146 Mass. 283, 15 N. E. 591; New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 21 N. E. 947; Schendel v. Stevenson, 153 Mass. 351, 26 N. E. 689. The request was therefore properly refused.

2. We assume in favor of the defendant, without deciding, that the discretion of the presiding justice in granting or denying a motion for a new trial is not an unlimited discretion, but that circumstances may arise under which it may be revised. The general rule is that it is not subject to revision on exception or appeal. Freeman v. City of

Boston, 178 Mass. 403, 59 N. E. 1018; Coffing v. Dodge, 169 Mass. 459, 48 N. E. 840; Behan v. Williams, 123 Mass. 366. In the pres ent case we see no ground on which it can be held as matter of law that the judge erred in denying the motion. He may have been of the opinion that the defendant had not exercised due diligence. She was a party to the alleged agreement, but there was no offer on her part to testify, or to produce the other party to it. It would have been extraordinary to grant a new trial under such circumstances, because of alleged surprise at the testimony of a witness, and, so far as the exceptions show, the only witness whom she called.

Exceptions overruled.

(181 Mass. 290)

GILCHRIST v. COWLEY et al.

(Supreme Judicial Court of Massachusetts. Middlesex. May 19, 1902.)

TRUSTEE PROCESS IN PENDING SUIT-PROCEEDINGS AFTER SERVICE-MOTION FOR CONTINUANCE - SUBSEQUENT PROCEEDINGS -MATURITY OF CASE FÖR JUDGMENT.

1. Where defendants filed a motion for a continuance on the ground that they had been trusteed by a creditor of plaintiff, and the court thereafter, but before the time for considering the motion for continuance, filed a finding for plaintiff, and assessed his damages, the contention that when the finding was filed the case was mature for judgment, notwithstanding the pending motion, was without merit.

2. Under Pub. St. c. 183, § 40, providing that, where a defendant is trusteed, the action may nevertheless proceed so far as to ascertain the sum due from defendant, and that the action shall not be delayed unless the court, for good cause shown, sees fit to continue it until the termination of the trustee suit, a motion for a continuance by a defendant who had been trusteed by plaintiff's creditor was not overruled by a subsequent finding for plaintiff, filed before such motion was ready for determination.

Appeal from superior court, Middlesex county.

Action by one Gilchrist against one Cowley and others. From orders refusing to enter judgment for plaintiff, and allowing a continuance, plaintiff appeals. Affirmed.

Brandeis, Dunbar & Nutter, Edward F. McClennen, and Joseph Warren, for appellant. Charles Cowley, for appellees.

HOLMES, C. J. This is an action for a legacy. On November 26, 1901, the defendants filed a motion for a continuance, on the ground that they had been trusteed by a creditor of the principal plaintiff, in a suit begun after the present action. On November 30, 1901, a justice of the court filed a finding for the plaintiff, assessing the damages. On January 31, 1902, a motion was filed that the clerk be directed to complete the record by entering judgment for the plaintiff as of the first Monday of January. This was denied on February 12, and a petition for a continuance, filed on the same day by the above

mentioned creditor, was allowed. The plaintiff appeals.

As has been pointed out more than once, "on appeal the record does not show the ground on which the plaintiff's motion was denied." Giles v. Insurance Co. (Mass.) 60 N. E. 786. But the plaintiff argues that the case was ripe for judgment when the finding was filed, that thereupon he had a right to judgment on the first Monday of January under Rule 25 and the Standing Orders of the Superior Court, and that therefore the power of a single judge to grant a continuance thereafter was gone. If this argument escapes the difficulty just stated and has no others of its own, still a sufficient answer is that it fails in its premise that the case was ripe for judgment.

The plaintiff relies upon Dunbar v. Baker, 104 Mass. 211, and Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15, 55 N. E. 468, for the proposition that a case is ripe for judgment notwithstanding a motion for a continuance. It hardly is necessary to say that neither of those cases decides that proposition. The latter decides that the benefit of such a motion is lost by suffering a default. The former, that after a default a case is no less ripe for judgment that the defaulted party simply files such a motion among the papers in the case without getting his default taken off or calling the motion to the attention of the court. The general rule is recognized or not denied in Dalton-Ingersoll Co. v. Fiske, although the application of it in Hosmer v. Hoitt, 161 Mass. 173, 36 N. E. 835, is criticised.

The finding by the court did not import an overruling of the motion for a continuance. By Pub. St. c. 183, § 40, it is provided expressly that in cases like this the action may proceed so far as to ascertain what sum is due from the defendant. Therefore, whether the defendant's motion was well founded, or whether the only effective one was that filed by the creditor, in pursuance of the same section after the first Monday in January, the time when it was necessary to deal with the former had not arrived and the finding did not affect it. Creed v. Creed, 161 Mass. 107, 36 N. E. 749.

The record discloses no ground for saying that the continuance granted by the superior court was not justified.

Orders affirmed.

(181 Mass. 513)

CHAUNCEY v. FRANCIS et al. (Supreme Judicial Court of Massachusetts. Suffolk. May 23, 192.) WILLS-CONSTRUCTION-ESTATE CONVEYED. Testatrix's will gave certain legacies to various relatives, and then gave to a brother "the sum of $1,000, in trust for my nephew S., to invest the same, and pay the interest of the same to said S., or expend the same for his benefit, as said trustee may deem best, and with full power to expend any part or the whole of the principal sum for the benefit of

63 N.E.-58

said S." Nothing more was said with respect to this $1,000. In certain following clauses respecting her real estate testatrix created life estates, and provided for the disposition of the remainder in fee. The residuary estate was given to another brother. Held, that by the clause quoted S. was made the sole equitable owner of the fund bequeathed, and was not given a mere equitable life estate therein, and that on his death the trust terminated, and the principal sum went to his estate.

Case reserved from supreme judicial court, Suffolk county; James M. Morton, Judge.

Bill for instructions by Elihu Chauncey, as trustee under the will of Ann S. Salisbury, deceased, against Joseph G. Francis, as administrator of Samuel Salisbury, deceased, and others. Case reserved for the supreme judicial court, and decree rendered.

The fifth clause of testatrix's will reads as follows: "I give and bequeath to my brother Stephen Salisbury the sum of one thousand dollars, in trust for my nephew Samuel Salisbury, to invest the same, and pay the interest of the same to said Samuel, or expend the same for his benefit, as said trustee may deem best, and with full power to expend any part or the whole of the principal sum for the benefit of said Samuel; said trustee to be accountable to no one for the administration of the trust, and not to give bonds."

Robert Stone, for Blanche L. Salisbury and others. Eliot N. Jones, for T. S. Woolsey and others.

HAMMOND, J. The sole question is, what interest did Samuel Salisbury have in the trust fund created by the fifth clause of the will? It is contended by the representatives of his estate that he had the complete beneficial interest in the fund, and that the various provisions as to the trust merely limit his use and enjoyment of it during his life; while, on the other hand, the executors of the will of Daniel W. Salisbury, the residuary legatee, contend that the interest was simply an equitable life estate. We are brought to the consideration of this question without any knowledge respecting the situation at the time the will was made, and hence our decision must be based substantially upon such things as appear upon the face of the will and codicil, and upon such inferences of fact as fairly may be drawn therefrom. The testatrix, having determined to make a will, enters upon the task. She is a single woman, apparently somewhat advanced in years. She has brothers, sisters, nieces, and nephews. She possesses in her own right estate both real and personal, and she also has, under her father's will, a power of ap pointment over certain other real estate. She begins with legacies of personal property. In the second, third, and fourth clauses of the will she gives various legacies of money to her brother Stephen, and to several nieces and nephews, respectively. The language in which each of these legacies is

given is very brief and simple. As an illustration of this, the bequest immediately preceding the one in question may be quoted: "I give and bequeath to my nephew Elihu Chauncey the sum of one thousand dollars." She then comes to her nephew Samuel Salisbury. All the preceding bequests have been absolute, but as to Samuel she thinks differently. She is willing to give him an interest in $1,000, but for some reason is not inclined to let him have the control of it. She decides to place the money in the hands of her brother Stephen, not for himself, but in trust for Samuel. She says that Stephen may pay the interest to Samuel, or expend the same for his benefit, as Stephen may deem best. So much as to the income. As to the principal, she is not willing that any part of it shall be paid to Samuel, but is willing that even the whole of it may be expended for his benefit, if Stephen chooses to do it. Having made this provision as to Samuel, she says no more about this $1,000, but proceeds to give in the next four clauses of the will legacies of money to individuals in the same brief language as in the clauses preceding the clause in question. She then, in several subsequent clauses, goes on to dispose of certain personal and real estate held by her in her own right and of certain real estate over which she has the power of appointment, and closes with a residuary clause in favor of her brother Daniel. In the clauses respecting real estate she creates by apt and appropriate language legal and equitable estates for life, and provides for the disposition of the remainder in fee, and there is no reason why she should not have used similar language for the disposition of the remainder of the trust fund created in the clause in question if she had intended that the interest in the whole of the fund should not pass to her nephew Samuel. Reading the clause in question in connection with its position in the will and in the light of the whole will, including the fact that there is no specific bequest over of the fund remaining at the death of Samuel, we think that the most natural interpretation of it is that the $1,000 was set apart to be held upon a general trust for Samuel; that he was the sole equitable owner of the fund; and that the directions to the trustee were for the management of the trust during the lifetime of the beneficiary. It follows that the fund goes to the representative of his estate. See Fay v. Phipps, 10 Metc. 341.

erty to a brother and sister for life, and after their death one-half of the property to a certain party during his life, and, if he died without heirs, then to another person for life, and, if neither of them had heirs at their decease, the half to be divided among certain nephews and nieces. The will continued: "Having given

the half of my property at the decease of my brother and sister, the remaining half

I wish divided among my nephews and nieces, the children of my brother Stephen and my eldest brother, Sam. They consist of [naming them]; to be divided equally among them. The sum I bequeath to W. and the sum I bequeath to S. [two of the nephews] I wish put in trust, and they should have the income only." Held, that S. was not given a mere equitable life interest in his share, but that testatrix intended he should take equally with the others, but that during his life he should have only the income, the trust ceasing at his death, and the principal thereupon becoming part of his estate.

Case reserved from supreme judicial court, Suffolk county; James M. Morton, Judge.

Bill for instructions by Elihu Chauncey, as trustee under the will of Sarah Austin, deceased, against Blanche L. Salisbury and others. Case reserved for the supreme judicial court. Decree rendered.

Eliot N. Jones, for Chas. Chauncey. John J. Higgins, guardian ad litem. Robt. B. Stone, for Blanche L. Salisbury. Horace G. Allen, for W. C. G. Salisbury.

HAMMOND, J. This case calls for the determination of the nature of the bequest to Samuel Salisbury under the following clause of his aunt Sarah's will: "Having given the half of my property at the decease of my brother Waldo and sister Rebecca to Charles Chauncey, the remaining half I wish divided among my nephew and nieces, the children of my brothers Stephen and my eldest brother, Sam. They consist of Annie Woolsey, William Salisbury, Elizabeth FitzGerald, Sally Walker, Agnes Chauncey Salisbury, children of my brother Stephen; also Sam Salisbury, at the West, son of my brother Sam,-to be divided equally among them. The sum I bequeath to William Salisbury and the sum I bequeath to Sam Salisbury I wish put in trust to Elihu Chauncey, and they should have the income only." As in the case of Chauncey v. Francis, 63 N. E. 913, which was argued in connection with this case, we are called upon to interpret a will without any other light as to the circumstances under which it was written than that which can be derived from an inspection of it. The will is inartificially drawn in some respects, but, keeping closely to the cardinal principle of interpretation that, after all, the real purpose is to get at the intention of the testator, there is not any great difficulty in coming to a decided conviction as to the meaning of the clause in question. It is instructive to examine the general scope and framework of the whole will. After the usual introductory words, the testatrix announces her intention in the following clear language: "I hereby bequeath and dispose

all my estate, real and personal, of which I shall be entitled at the time of my decease, the manner following to wit." With that intention she proceeds. She first appoints an executor, granting him certain powers as to the sale of her estate, and giving him directions as to a monument to be erected to her memory. Then she gives all her property to her brother Waldo and sister Rebecca for life. Certain stocks held in trust by Waldo, apparently not regarded by her as a part of her estate, but of which it may fairly be inferred she had a power of disposition by will, she gives to a nephew. She then proceeds to the consideration of what disposition shall be made of her estate after the death of Waldo and Rebecca. She divides it into two equal parts. The first half she gives to her nephew Charles Chauncey during his life, and, if he dies "without heirs," then to Elihu Chauncey, another nephew, for life. If neither of them has "heirs" at his decease, then she directs that it be divided among the nieces and nephews who may be children of her brother Stephen, and finally ends, as to this half, in the following language: "If Charles or Elihu Chauncey have children, the property is to go to them." So far the will is easily read. In sentences somewhat elliptical, but clear and direct, the testatrix has created a life estate in her whole property, has divided the remainder after the life estate into two equal parts, and has fully provided for the final disposition of the first part. So far she has proIceeded in accordance with her intention announced when she began. The second part remains, and she directs her mind to that. She concludes to divide it among her nephew and nieces, "children of my brothers Stephen and my eldest brother, Sam." She specifically names each one of them, and directs that the property "be divided equally among them." There are six of them, five being children of Stephen, and one-Samuel-the child of her "brother Sam." Then follows the sentence over which this controversy arises: "The sum I bequeath to William Salisbury and the sum I bequeath to Sam Salisbury I wish put in trust to Elihu Chauncey, and they should have the income only." And there, with the exception of two small specific bequests, and certain further directions in relation to the first half, which need not be recited, she stops. We have before us, therefore, the will of a person who started out with the purpose formally declared of disposing of the whole estate, and who proIceeded with considerable minuteness of detail to create life estates and trust estates. As to the first half of her property she did make final disposition. The clause in question is to be interpreted under this light. She wishes this second half to be equally divided among the six persons named. Euch, therefore, takes one-sixth. The part

bequeathed to Samuel is put in trust, and he "should have the income only." It is contended by some of the parties to this suit that by this direction the interest bequeathed to Samuel was cut down to an equitable life estate. If this is so, then the remainder in his sixth, after the life estate, goes to the children of Stephen, excluding William, or it passes to the heirs at law of the testatrix as intestate property. In order to accept the first alternative, we must conclude that the testatrix meant to give to the four children of her brother Stephen not only four-sixths absolutely, but also the remainder, after the life estate, in the other two-sixths (the shares bequeathed to William and Samuel). It does not seem to us reasonable that, if the testatrix had had in mind any such result as that, she would have described the division between the six as equal. Moreover, there would appear to be no reason why she should not have been as clear and specific as to the creation of remainders in this half as in the first half, if she intended to create them. Nor is the second alternative any more acceptable. It is not reasonable to suppose that she thought she had not disposed of her whole property. She started out to dispose of the whole, and as to the first half certainly great pains are taken in that direction. In view of the declared purpose of the testatrix to dispose of her whole property, the general framework of the will, showing the manner in which she proceeded to the execution of her purpose; the clear and direct language with which she created remainders, first in her whole estate, and afterwards, when it was divided into two parts, in the first of those parts; the provision that the other part should be divided equally between six persons, of whom Samuel was one; the entire absence of any specific allusion to any remainder in his part, or any specific disposition of any such remainder to any other person,-there would seem to be every reason to believe that the testatrix intended that Samuel should take one-sixth equally with the others, but that he "should have the income only" during his life, and that at his death the trust should cease, and the property, then being a part of his estate, should be distributed as such. See Fay v. Phipps, 10 Metc. 341. Of course, such an estate, both as to income and principal, could be reached by creditors, and this the testatrix must be presumed to have known. As thus interpreted, there is nothing in the will with respect to Samuel's share which is inconsistent with the principles of law. It follows that one-sixth which was held for Samuel belongs now to his estate. There should be a decree that the personal property in the trust be paid to the administrator of his estate, and that the real estate passes to his heirs at law.

So ordered.