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tion of motives after having reached the conclusion that Mrs. Thurston was fully empowered to make such advancements. 2 Sugden on Powers, *193; Vane v. Lord Dungenmore, 2 Schoales & Lefroy, 117, 130; Topham v. Duke of Portland, L. R. 5 Ch. 40, 57. The complainant, as the representative of her mother, Harriet D. Thurston, and Mrs. Gladding are now the only surviving heirs of Mr. Thurston. The complainant is already secure in the possession and enjoyment of one-half of his estate. The advancements made to Mrs. Gladding do not fully cover the remaining half. There is a substantial sum left to be administered, and which is characterized in the will as "the trust estate as it shall then be remaining," evidently referring to that portion which shall be remaining after the deduction of such advancements as Mrs. Thurston might see fit to make. This would seem to us to be consistent with the scheme of the will, and in furtherance of one of the primary objects of the testator which was the equal treatment of his children in their enjoyment of his estate.

It is also claimed that Mrs. Thurston, at the time of making the advancements to Mrs. Gladding, was enfeebled in health to an extent which would be likely to affect or weaken her judgment in business matters, and that, being in that condition, she was influenced by Mr. Gladding, her son-in-law and cotrustee, who was particularly interested in having advancements made to his wife. This does not seem to be established. It is quite apparent that Mrs. Thurston was a woman who acted upon her own views and convictions. She evidently took the lead in the matter of the advancements to Mrs. Gladding. The participation of Mr. Gladding in that matter seems to have been confined to the rendering of such assistance to Mrs. Thurston as she requested or demanded in carrying out the arrangement, without any endeavor to initiate it or promote its accomplishment.

We are of the opinion that it was the intention of Mr. Thurston to invest his wife with full power and absolute authority to make advancements to his children during her lifetime as and when she might deem it advisable to do so, and that he did not intend that the right to make such advancements should be dependent upon the happening of any particular event, upon any particular occasion, or for any particular purpose, and that the only restriction upon her power was that she should not make advancements to one child in excess of such child's distributive share. Having reached this conclusion, there is no sufficient reason for discussing other questions raised by the respondents in their briefs.

The cause is remanded to the superior court for the entry of a decree dismissing the bill.

MORRISON v. RHODE ISLAND CO. (Supreme Court of Rhode Island. June 30, 1913.)

CARRIERS (§ 303*)-CARRIAGE OF PASSENGERS -PLACE OF STOPPING VEHICLE.

its car at a regular stopping place used for Where a street railway company stopped many years, where plaintiff had many times alighted, it cannot be held guilty of negligence because a sewer pocket constructed by the municipality at that point made the surface of the street further below than common from the running board; it appearing that the street was in good condition and as fixed by the mudanger was the greater distance below the runnicipal authorities, and that the only possible ning board.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234-1240, 1243; Dec. Dig. § 303.*]

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Trespass on the case by Jane Morrison against the Rhode Island Company. A verdict was directed for defendant, and plaintiff excepts.

Exceptions overruled, and cause remitted, with direction to enter judgment for defendant.

Thomas F. Vance, of Pawtucket, and Thomas W. Gilchrist, of Providence, for plaintiff. Joseph C. Sweeney, Eugene J. Phillips, and Clifford Whipple, all of Providence,

for defendant.

PER CURIAM. This is an action of trespass on the case brought by Jane Morrison, of Central Falls, against the Rhode Island Company for injuries alleged to have been received by said plaintiff on July 22, 1909, in alighting from one of defendant's open cars in the village of Saylesville. The case was tried to a jury in the superior court, and, at the conclusion of the testimony for the plaintiff, the court directed a verdict for the defendant, to which the plaintiff excepted.

The plaintiff's declaration is in two counts. The first count alleges, in substance, that the plaintiff was a passenger on a car of the defendant; that she signaled the conductor to stop the car so that she might alight therefrom; that the car was stopped at a place unsafe for her to alight in that it was more than a reasonable and safe distance from the running board to the ground, and that "this plaintiff, being a fleshy and heavy person, was obliged to alight from said car with her back to the street and thus enable herself to alight by taking hold of the stanchions of said car with both hands, and this plaintiff then placed her foot as near the ground as she could possibly get it, and, said foot not touching the ground, this plaintiff, from the great weight of her body and from her inability to touch the ground, was thrown to the street"; and that defendant

pair and were otherwise just as the municipal authorities intended they should be. Their appearance was not suggestive of danger. The testimony does not disclose, nor is it claimed, that there has ever been any occurrence at or complaint made concerning this locality which might apprise the defendant that it was a place of danger.

knew, or ought to have known by the exer- of negligence in stopping its car there? The cise of ordinary care, that said place was defendant had made it a stopping place for unsafe and dangerous as a place to alight, some years and the plaintiff had many times and that the plaintiff did not know said place alighted from cars there. So far as appears, was unsafe and dangerous, and could not neither the plaintiff nor any one else had have discovered its dangers by the exercise ever before experienced any difficulty there. of ordinary care. The second count alleges The sewer pocket and the sloping surface that on plaintiff's signal the car was stop-around the mouth thereof were in good reped for her to alight at a dangerous and unsafe place "in that there was a certain sewer pocket, so called, directly at a point under and out from the running board at a point where plaintiff was obliged to alight from said car, and plaintiff, being a large, fleshy woman, was obliged to take hold of the stanchions of said car with both hands and alight backwards from said car, and said plaintiff, after taking hold as aforesaid, put her feet towards the ground and by reason of said sewer pocket was unable to touch the ground and in consequence of her weight was unable to life her foot back onto the running board and was obliged to drop, or fall, from said car to the ground; the same being such a great distance from the running board that she could not have rested her foot on the ground to assist herself in getting from said car and she fell on her back," etc.

The plaintiff contends that the defendant was negligent in so stopping its car that she was compelled to alight opposite the sewer pocket where the surface of the street sloped from a point near the car track toward the mouth of said pocket.

The testimony shows that the accident occurred in the early afternoon and at a place where the plaintiff had frequently and for many years been accustomed to alight from electric cars. The sewer pocket and the sloping surface of the street immediately around it was in good repair and of a construction and design contemplated by the municipal authorities, under whose direction the street was laid out and maintained. It was situated near the foot of a hill which would naturally somewhat increase the flow of water at that particular point whenever it rained. To arrest this excess of water and turn it into the sewer pocket, the concavity about the mouth thereof was made somewhat larger and deeper than would be necessary in other localities where level surfaces predominated. In thus making provision for the increased amount of water at this particular place, it was apparently found necessary or desirable to slope the surface of the street beginning at a point some nine inches from the car rail to the mouth of the sewer pocket. This would increase the distance from the running board to the ground, where the plaintiff attempted to alight, some two or three inches.

The first thing to be considered is the question of the defendant's negligence. Was the danger of alighting at the point in question so obvious that the defendant was guilty

We do not think that the defendant was guilty of negligence in stopping its car where it did. We think that the defendant was entitled to the direction of a verdict in its favor, although upon grounds somewhat different from those expressed by the trial court.

The case is remitted to the superior court, with direction to enter judgment for the defendant on the verdict.

ROACH TOWN COUNCIL OF EAST

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Where the petition for mandamus alleged that the defendant town council refused a liquor license and asked that it be ordered to grant it, on a motion for a reargument the court could not treat the petition as alleging that the council had refused to act on the petition for a license, and grant an order to compel the council to act on the petition.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3241-3243; Dec. Dig. § 835.*]

On petitioner's motion for reargument. Denied.

For former opinion, see 87 Atl. 27.

PER CURIAM. The court by its opinion on June 17, 1913, having denied and dismissed the petitioner's appeal from the judgment of the superior court by which his application for a writ of mandamus against the town council of East Providence was denied, the petitioner, on June 21, 1913, filed a motion for reargument. The point involved in the statement of law in the motion quoted from 11 Am. & Eng. Encyc. Law was considered at the original hearing. The statute quoted and the Rhode Island cases cited in the opinion show that it is not the law in Rhode Island. The petition for the writ twice alleges that the town council refused the petition for a license. The specific action asked for in the petition for the writ is the ordering of the town council to grant the license.

The motion for a reargument asks the court to treat the petition for the writ as if

§ 35, after decree pro confesso was entered against certain respondents not appearing. Questions answered as stated, and cause remanded for further proceedings.

it alleged that the town council had refused | ment of facts under Gen. Laws 1909, c. 289, to act on the petition for a license, instead of refusing it, and as if it asked for an order to compel the town council to act on the petition, instead of to grant the license. That makes another and different case from the one stated in the papers of the case and as heard in the superior court and on appeal, which, of course, is not permissible. The motion for a reargument is denied.

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1. WILLS ( 538*)—ConsTRUCTION OF GIFT TIME.

June 26,

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A will bequeathing sums named to certain persons, and providing that, if any such are not living at the time this instrument is executed," their bequests shall be equally divid ed between those hereinafter named, refers by the quoted words to the time of testator's death rather than the time of signing and publishing the will; the persons referred to being near relatives and friends, and being known to testator to be living when the will was executed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1162, 1302-1309; Dec. Dig. § 538.*] 2. WILLS (8 481*)-CONSTRUCTION-TIME OF SPEAKING.

A will speaks from testator's death, unless it plainly shows a contrary intention. [Ed. Note.-For other cases, see Wills, Cent. Dig. 1005-1007; Dec. Dig. § 481.*] 3. WILLS (§ 533*)-PERSONS TAKING.

Under a will providing that, if any persons to whom bequests are made are not living at the time the instrument is executed, the bequests to them should be equally divided between "those herein before named," the issue of legatees dying before testator would take per stirpes equally upon the failure by death of the legatees last referred to.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1147; Dec. Dig. § 533.*]

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4. WILLS (8 754*) SPECIFIC LEGACIES ADEMPTION.

A bequest for the benefit of certain institutions of "mortgages on western farm lands standing in the name of myself and my late mother amounting to something more than $5,000" was a specific legacy, and was adeemed where no such mortgages were found, and it was impossible to fix the exact amount which testator intended to give such institutions.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1945, 1946; Dec. Dig. § 754.*] 5. WILLS (8 733*)-PROPERTY GIVEN-TIME OF VESTING.

A gift of money under a will giving to persons named the sums named, and providing that, if any such persons are not living at testator's death, the bequests to them shall be equally divided between persons theretofore named, became vested in the donees at the time of testator's death.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1819-1846; Dec. Dig. § 733.*] Case certified from Superior Court, Providence and Bristol Counties.

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Clarence A. Aldrich, of Providence, for complainant. Benjamin W. Smith, Benjamin W. Grim, Tillinghast & Collins, Harold B. Tanner, and Gardner, Pirce & Thornley, all of Providence, for various respondents.

PARKHURST, J. This is a bill in equity to determine the true construction of the will of Gustine L. Hurd, deceased, and for instructions to the complainant as administrator with the said will annexed. The cause being ready for hearing for final decree, it was duly certified to the Supreme Court by decree of the superior court entered the 12th day of March, A. D. 1913. By stipulation dated March 18, 1913, and filed in court, the complainant and the several respondents who have appeared are agreed that for the purposes of the case the facts set out in the bill of complaint may be taken as true; decree pro confesso has been duly entered against the other respondents who have not appeared. These facts, so far as they affect the questions raised by the bill and answers, are set forth substantially as follows in the bill of complaint:

Gustine L. Hurd deceased at said Providence on the 1st day of October, A. D. 1910, leaving a last will and testament, of which the following is a true copy:

"I, Gustine L. Hurd, of the city and county of Providence, state of Rhode Island, do hereby make and declare this to be my last will and testament.

"I desire that such worldly estate as I may die seized of, or to which I may be entitled at the time of my decease, by inheritance or otherwise, shall be disposed of in the following manner, to wit:

"After the payment of all charges connected with my sickness and burial and other just debts I give and bequeath to the following named persons, their heirs and assigns, the following sums:

"1st. To my uncle Lewis Vickery of Hillsborough Upper Village, New Hampshire, one thousand dollars $1,000.

"2nd. To my cousin Daniel L. Vickery, of East Washington, New Hampshire, five hun.dred dollars $500.

"3rd. To my cousin Jennie E. Vickery of Hillsborough Upper Village, New Hampshire, five hundred dollars $500.

"4th. To Rachel Vickery, widow of my uncle Benjamin Vickery, of Hillsborough Lower Village, New Hampshire, three hundred dollars $300.

5th. To Ellen Vickery, my cousin, divorced wife of Samuel Strickland, of Hillsborough Lower Village, New Hampshire, three hundred dollars $300.

Suit by Samuel A. Hazard, administrator, against Thomas C. Gushee, executor, and others, for the construction of a will. Cause certified from superior court on agreed state

"6th. To my cousin Shubael W. Hurd of Washington, New Hampshire, five hundred dollars $500. "7th. To my cousin Henry Hurd of East Lempster, New Hampshire, five hundred dollars $500.

"I also give and bequeath to the persons hereafter mentioned the following sums. If any of such persons are not living at the time this instrument is executed the bequest made to them shall be equally divided between those hereinbefore named:

"1st. To my aunt Emily Vickery of East Washington, New Hampshire, one hundred dollars for the purchase of some keepsake

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"Also such works of the poets as I may possess, three pictures from among my oil paintings that she may choose and Webster's Unabridged Dictionary.

"7th. To Maria L. Smith, so long connected with our family, one thousand dollars $1,000.

"I also give, devise and bequeath to the said Maria L. Smith, her heirs and assigns anything that remains after satisfying the above bequests, whether real or personal (with the exception of mortgage securities directly to be mentioned), including the furniture and all the belongings of housekeeping at 98 Cranston St., Providence, R. I., my watch and chain and all other jewelry, books, and pictures, except such as hereinbefore mentioned, and portraits of my father and mother.

"I desire that the mortgages on Western farms standing in the name of myself and my late mother, Laura V. Hurd, amounting to something more than five thousand dollars, shall be held in trust by the executor of this will and reinvested when they expire in the best manner consistent with safety; the income therefrom to be paid to the said Maria L. Smith, annually during her life; and the entire amount then given in equal parts to the institution designated as the Old Men's Home in Providence, R. I., and the Shedd Free Library in Washington, N. Hampshire, the latter upon the same conditions as those of the bequest of Sarah Shedd the founder of the Library.

"I desire also that the provisions of this will shall not be published in the newspapers.

point William H. Latham, of Providence, R. I., sole executor to carry out the provisions of this instrument. Gustine L. Hurd.

"Signed, sealed, published and declared by the said Gustine L. Hurd as and for his last will and testament in our presence who have in his presence and in the presence of each other and at his request hereto set our names as witnesses this tenth day of July, A. D. 1885. Louis L. Angell.

"Isaac W. Sawin."

This will was duly probated in Providence November 22, 1910. The testator, Gustine L. Hurd, was never married. Lewis Vickery, mentioned in clause 1 of the first part of the will, died before the testator, leaving issue living at the death of testator, as follows: Daniel L. Vickery, a son, Mary E. Myers, a daughter, Jennie E. Vickery, a daughter, George C. Vickery, a son, all living when the bill was filed. Daniel L. Vickery (clause 2, of first part) was living when the bill was filed. Jennie E. Vickery (clause 3 of first part) was living when bill was filed. Rachel Vickery (clause 4 of first part) died before testator. She had three children, Ellen, Elizabeth, and Rodney Vickery, all of whom died before testator. Ellen Vickery married Samuel Strickland and had five children, Flora, Cora, Belle, Norman, and Clarence. Flora married Eugene Hoyt, and was living when the bill was filed. Cora married and died before the death of testator, leaving a daughter Maude M. Robinson, living when bill was filed. Belle married Bertram Nichols, and died before death of testator, leaving a daughter Ella G. Nichols living when bill was filed. Norman and Clarence Strickland were living when bill was filed. Elizabeth M. Vickery married John Strickland, and died before testator, leaving one son, Chester Strickland, who was living when bill was filed. Rodney Vickery died before testator, leaving two sons, Frank Vickery and Eugene Vickery, who were living when the bill was filed. The abovenamed living persons are all of the issue of said Rachel Vickery, living at the death of the testator. Ellen Vickery (clause 5th of first part) died before the testator, and is the same Ellen Vickery above named, daughter of Rachel Vickery, and her issue are as above set forth. Shubael W. Hurd (clause 6 of first part) died before testator, leaving a son, Fred O. Hurd, and a daughter, Alice M. Brown, both living when bill was filed. Henry Hurd (clause 7 of first part) died before testator, leaving two sons, viz., Frank E. Hurd, Edson A. Hurd; also the children of his deceased daughter Nellie M. Hurd, viz., Frank, Alton, Leo, and Clarence Hodgman and Edna E. Lund; all living at death of testator.

It thus appears that of the seven persons mentioned in the seven clauses of the first part of the will Daniel L. Vickery and Jen

mortgages and securities expressly excepted) after satisfying the specific legacies, died during the life of the testator, leaving no issue. Does the bequest to her pass under the above-named provision of said will, which provides, if any such persons are not living at the time this instrument is executed, the bequest made to them shall be equally divided between those hereinafter named' or is it intestate estate descending to the heirs at law of the testator?

were living when the bill was filed, and the thing that remains (with the exception of other five persons predeceased the testator leaving lineal descendants who were living when the testator died and when the bill was filed. It further appears that all of the persons mentioned in the seven clauses of the second part of the will died without issue prior to the death of the testator, excepting Annie B. Lovejoy mentioned in the fifth clause of said second part, who died February 12, 1912, and Jennie G. Irwin mentioned in the sixth clause of said second part, who died January 8, 1911, and that Howard L. Wheeler and Adeline M. Wheeler are the executors of the will of Annie B. Lovejoy, and that Thomas C. Gushee is the executor of the will of Jennie G. Irwin. It further appears that no mortgages on Western farms standing in the name of the testator or his mother were found after testator's death after diligent search by the administrator, and that he has not been able to trace the proceeds of any such mortgages as a part of the testator's estate.

The complainant asks for the construction of the will and the instructions of this court in the particulars set forth in the following questions, viz.:

"(e) What, if anything, do the Home for Aged Men and Aged Couples in Providence, R. I., and the Shedd Free Library in Washington, N. H., take under this will, there having been no mortgages on western farms standing in the name of the testator or his late mother, Laura V. Hurd, at the time of the death of the testator, or no proceeds of such mortgages so far as your orator has been able to ascertain?

"(f) What, if anything, are the heirs at law of the testator entitled to?"

[1] In answer to question "a," set forth above, we are of the opinion that the words, "at the time this instrument is executed," refer to the time of the death of the testator, "(a) Do the words 'at the time this instru- rather than to the time when he signed and ment is executed,' as used in the beginning published the will. The will was signed 25 of the second part of said will, which is as years before his death. He knew that all follows: 'I also bequeath to the persons the persons mentioned in the will were living hereafter mentioned the following sums. If at that time. All of those named in the first any such persons are not living at the time part were near relatives living in New this instrument is executed, the bequest Hampshire; of those named in the second made to them shall be equally divided be- part of the will one was a near relative livtween those hereinbefore named'-refer to ing in New Hampshire, and the rest were the date of the signing of the will by the close friends, and all lived in Providence. testator, the date of the death of the testa- The testator could hardly have been in doubt as to whether any of them were living tor, the date of the probate of the will, or when he signed his will; and we think the some other date? scheme of the will indicates that it was his intention, in making the bequests enumerated in the second part to these close friends, that such bequests should go to them personally as such friends in case they survived him; but, in case of the decease of any of them before him then to go to his relatives, named in the first part of the will.

"(b) Certain legatees mentioned in the first part of said will died during the life of the testator, leaving issue living at his death. Do such issue take anything under this provision in the second part of said will: 'If any of such persons are not living at the time this instrument is executed, the bequest made to them shall be equally divided between those hereinbefore named? In other words, do the words 'those hereinbefore named' include the issue of legatees who died during the life of the testator leaving such issue living at the time of his death?

[2] It is a general principle of the construction of wills that the testator expects the will to speak from his death, unless he plainly manifests a contrary intention. 1 Redfield, Law of Wills, p. 359, and cases cited infra. And our statute explicitly recognizes such general principle in the provision of Gen. Laws R. I. c. 254, § 6, as follows: "Sec. 6. Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall expressly appear by the will." As stated above, we do not find any such "contrary intention" in the will, but rather (d) The Maria L. Smith, to whom by the that the testator's intention is quite consistprovisions of the second part of the said ent with the principle and the statute above

(c) If the words 'at the time this instrument is executed' refer to the date of the signing of the will, do the estates of or the issue living at the time of the death of the testator of the legatees (other than said Old Men's Home and the Shedd Free Library) named in the second part of said will, who died after the signing of the will and before the date of the death of the testator, take anything under said will?

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