sion and limited the inheritance of a woman to one hundred thousand sesterces. Originally the testator could only entreat, but after the establishment of the Praetor fidei commissarius (by Augustus) he could impose by positive words a trust in favor of the cestui que trust. But the use of words of entreaty still continued, and in the time of Justinian the forms of expression were "peto," "rogo," "volo," "mando," or "fidei tuae committo," as to which Justinian says, quae perinde singula firma sunt atque si omnia in unum congesta sunt." 2 Inst. 24, 8. Justinian ordained that where the intention of the testator was clear they should all be equally effectual. Milman's Gibbon v. ch. xliv, 308, 310; Montesquieu Esprit des Lois L. xxxii; Gaius Inst. 1. ii, title ii-viii, pp. 91-144. Justinian, 1. ii, title x-xxv; Theophilus, pp. 328-514. See vols. 28-39 Pandects. Sheldon Amos' "Systematic view of the Science of Jurisprudence," 320.

These expressions are constantly referred to in chancery courts to this day as guides to similar questions. See Knight v. Knight, 3 Beav. 161, where it was held that "confiding in the approved honour and integrity of my family," and "I trust to the liberality of my successors to reward," were not sufficiently clear to make the words of trust imperative. Compare Cary v. Cary, 2 Sch. & Lef. 189; Eade v. Eade, 5 Mad. 118; Harding v. Glyn, 1 Atk. 489; Foley v. Parry, 5 Sim. 138; Hinxman v. Poynder, id. 546. In these last cases the following words were held sufficient: " Request," "desire," 93.66 my particular wish and request," 'my last wish," "recommend; but see Van Duyne v. Van Duyne, 1 McCart. 397; 15 N. J. Eq., where it is said that the present disposition of the courts it rather to limit than to extend the doctrine, and a distinction is taken between such words used toward executors where they would be imperative, and toward devisees or legatees where they would not be. See also Manice v. Manice, 43 N. Y. 388; Warner v. Bates, 98 Mass. 274. The cases are collected in note to Harding v. Glyn, vol. 2, pt. 2, Lead. Cas. in Eq. (Am. ed.) p. 1859.

Second. The subject of the recommendation or wish must be certain; it must be manifested and proved in writing, and its terms and conditions must sufficiently appear so that the court may not be called upon to execute the trust in a manner different from that intended. Steere v. Steere, 5 J. C. R. 1; Abeel v. Rad. eliffe, 13 J. R. 297; Dillayev. Greenough, 45 N. Y. 445; Manice v. Manice, 43 id. 370; Knox v. Jones, 47 id. 389; Beekman v. Bonsor, 23 id. 298.

Third. The objects or persons intended to have the benefit of the recommendation or wish must be certain.

A cestui que trust need not be described by name; any designation by which he may be identified is enough (** id certum est quod certum reddi potest"), as e. g., a person who shall officiate as minister of a certain church who might be a different individual every year. The legatee need not be ascertained at the testator's death; it will be enough if he can be determined when his right to receive it accrues. Stubbs v. Sargon, 2 Keen. 255, affirmed 3 M. & C. 507; Holmes v. Mead, 52 N. Y. 343, and cases cited. Since it is an invariable rule that a court of equity will never attempt the exercise of discretion for a party, it follows that though the defective execution of a power may be aided, its non-execution will not be (unless in the case of a power in trust since the R. S.), but in the former case the "three certainties must here likewise concur. See Beekman v. Bonsor, ut sup. Though as we have seen a court of equity in general has no jurisdiction over a will unless it contains a trust express or implied, yet a will might, while not creating a trust, still be proof in writing of one already created,and existing at the time of the execution of a will. But if

the validity of such a trust depended on the effect of the will in transferring the title to the property, the will could not be used in evidence unless it were valid as a will and executed according to the statute. Alter's Appeal, 67 Penn. St. 344; Anding v. Davis, 38 Miss. 574; 1 Perry on Trusts, § 90. See the remarks of Lord Loughborough in Habergham v. Vincent, 2 Ves. Jr. 209; Dewin on Trusts, 66 (2 Am. ed.); Addington v. Cann, 3 Atk. 151; see also In the Goods of the Countess of Durham, 3 Curteis, 57.

The doctrine of equitable conversion ("equity regards that as done which ought to be done") as applicable to testamentary dispositions will be found well illustrated in 23 N. Y. 69; 43 id. 424; 52 id. 47. In such cases where the bequests are in money, the property sufficient to pay them is to be deemed converted into personalty, and questions respecting devises of real estate do not occur. The cy-pres doctrine of the English chancery courts is now considered to be no part of the equity powers of American courts, the view being taken that it was exercised in England by the chancellor by virtue of the royal prerogative, under the sign manual merely as representing the sovereign as parens patriæ. Although evidence dehors the will is not admissible to vary or control its terms, yet it is permitted to be introduced to explain a latent ambiguity, since as the intention in a will prevails over the words, a court of equity has jurisdiction to correct them when they either are evident on the face of the will or appear on a proper construction of the terms employed.

But such a mistake must be clear, or in the case of an omission be clearly deducible from an examination of the structure and scope of the will considered as an entirety. So mistakes in computing legacies have been rectified in equity, and errors in naming or describing legatees, or clear errors in descriptions of property intended to be bequeathed.

Mistakes of fact will be corrected; as if a testator revokes a legacy to A., stating as a reason that he is dead when in fact he is living. But a mistake of law in general will not be; as where a woman gave a legacy to a man describing him as her husband, and as a question of law the marriage was void, he having a former wife still living. In such a case the bequest has been declared void.

However cases may arise where a similar question may be regarded as one of fact, as where it depended on an honest belief by both parties that the husband of the woman was dead, based upon reasonable inquiry though he was in fact living. Pitts will case, 5 Jur. (N. S.) 235.

But the American courts of equity have never gone to the same extent as those of England in correcting these alleged mistakes, and undoubtedly many of the celebrated cases of this kind reported in the books would not be followed in American courts. On this subject Mr. Justice Story well remarks that "the extent to which English equity courts have sometimes carried this branch of their remedial powers has more the appearance of making men's wills as they probably would do if now alive, than carrying them into effect as they were in fact made." Story Eq., § 180. The jurisdiction of courts of equity over legacies grows out of their general jurisdiction over trusts. The limits of our space will not allow of any extended consideration of this branch of our subject. Much that has been said in respect to trusts is of course equally applicable here. An executor quoad legatees is a trustee, and a court of equity can therefore enforce the payment of a legacy, if there are sufficient assets, without regard to the assent of the executor. Code Civ. Pro., § 1819; see Bevan v. Cooper, 7 Hun, 117; S. C., 72 N. Y. 317, overruling Am. Bib. Soc. v. Hebard, 51 Barb.

552; S. C., 41 N. Y. 619; Hurlbut v. Durant, 88 id. 216. When legacies are charged upon land, the rules of the common law govern them, though no action at law can be sustained to enforce them, the remedy being entirely in equity.

As we have seen when legacies are of personalty, the rules governing them are derived from the civil law from the fact that these legacies were properly cognizable in the ecclesiastical court. The distinction is plainly indicated when bequests are in terms immediate, and only the payment is postponed.

When the legacy is payable out of personal estate the legacy vests immediately, but in the case of legacies charged on real estate this is not the case, because courts of equity in England, from motives of public policy, desired to protect the interest of the heirs at law.

We have left ourselves no space in which to discuss the various classes into which legacies are divided, nor to speak of the marshalling of assets out of which to pay them.

It will be sufficient to say here, on the latter subject that the leading rule is that the personalty is the proper fund for the payment of legacies, even though they are charged on real estate, provided the personal estate is not in express terms exonerated. Code Civ. Pro., § 1859. It is said in such a case that the realty is charged in aid, and not in exoneration of the personalty. The leading case is the Duke of Chandos v. Talbot, 2 P. Wm. 601, 613, and notes. When the personal estate is so applied, it is governed by the rules as to legacies charged exclusively on personalty, and when the real estate must be used the case will be subject to the same rules pro tanto, as if the legacies had been exclusively charged on the realty. The following cases are well worthy of perusal by the student, desirous of gaining a comprehensive view of the American doctrine of the law of charitable uses: Beekman v. Bonsor, 23 N. Y. 298; Bascom v. Albertson, 34 id. 584; Holmes v. Mead, 52 id. 343; Wetmore v. Parker, id. 459; Vidal v. Girad's Exrs., 2 How. 127; Fontain v. Ravenel, 17 id. 392. The dissenting opinion of Daniel, J., in this latter case, is well worthy of attention. We consider it contains the real ground for the decision. With the above cases compare the English case of Incorporated Soc. v. Richards, 1 Drury & W. 258, 336, where Lord Sugden held that equity in England had an inherent jurisdiction in cases of charity, independently of and anterior to 43 Eliz. The mort

main policy of New York State is contained in each charter creating a charitable corporation. Though the amount of property it may take is restricted, its ownership is absolute. Wetmore v. Parker, ut sup.

The investigation of the development of equity jurisdiction as the occasions for its exercise have enlarged its scope, illustrates more completely than any other department of legal study, the intimate connection which exists between the philosophy of law and the philosophy of history. We thus see developing in the adjudications of national law, the historical growth of the national conscience under the influence of an ever increasing complexity of the phenomena of the social organism.

AUGUSTUS A. LEVEY.

MASTER AND SERVANT--INJURED BRAKEMAN -CONDUCTOR EMPLOYING SURGEON. SUPREME COURT OF INDIANA, NOV. 25, 1884. TERRE HAUTE, ETC., R. Co. v. MCMURRAY.*

A brakeman on defendant's road had his foot crushed in such a manner as to call for the immediate attention of a sur*To appear in 98 Ind. Reports, 358.

geon. The conductor of the train, no superior officer of the company being present, requested the plaintiff to render such professional aid as was needed, and told him the company would pay him. Held, that the company was liable.

THE opinion states the facts.

ELLIOTT, J. The facts in this case are simple, and lie within a narrow compass, but the questions of law are important and difficult.

cers.

Frankfort is a way station on the line of appellant's road, distant many miles from the principal offices of the company and from the residences of its chief offiAt this station, at one o'clock of the morning of July 2, 1881, Thomas Coon, a brakeman in the service of the appellant, had his foot crushed between the wheel of a car of the train on which he was employed as a brakeman aud a rail of the track. The injury was such as demanded immediate surgical attention. The conductor of the train requested the appellee, who was a surgeon, residing in the town of Frankfort, to render the injured man professional aid, and informed the appellee that the company would pay him for his services. At the time the accident happened, and at the time the surgeon was employed, there was no officer superior to the conductor at the town of Frankfort. There was at the station a resident agent who had full knowledge of the injury to Coon, and of appellee's employment. This agent was in telegraphic communication with the principal officers of the company, but did not communicate with them. The trial court held the appellant liable for the reasonable value of the services rendered by the appellee, and awarded him $100.

In ordinary cases a conductor or other subordinate agent has no authority to employ surgical assistance for a servant of the corporation who receives an injury or becomes ill. We do not doubt that the general rule is that a conductor has no authority to make contracts with surgeons, and if this principle governs all cases the discussion is at an end; but we do not think it does rule every case, for there may be cases so strongly marked as to constitute a class in themselves, and one governed by a different rule.

The authority of an agent is to be determined from the facts of the particular case. Facts may exist which will greatly broaden or greatly lessen an agent's authority. A conductor's authority in the presence of a superior agent may dwindle into insignificance; while in the absence of a superior it may become broad and comprehensive. An emergency may arise which will require the corporation to act instantly, and if the conductor is the only agent present, and the emergency is urgent, he must act for the corporation, and if he acts at all, his acts are of just as much force as that of the highest officer of the corporation. In'this instance the conductor was the highest officer on the ground; he was the sole representative of the corporation; he it was upon whom devolved the duty of representing the corporation in matters connected within the general line of his duty in the sudden emergency which arose out of the injury to the fellow servant immediately under his control; either he, as the superior agent of the company, must in such cases be its representative, or it has none. There are cases where the conductor is the only representative of the corporation that in the emergency it can possibly have. There are cases where the train is distant from the supervision of superior officers where the conductor must act, and act for the company, and where for the time, and under the exigencies of the occasion, he is its sole representative, and if he be its only representative, he must, for the time and the exigency, be its highest representative.

Simple examples will prove this to be true. Suppose, for illustration, that a train is brought to a halt by the breaking of a bolt, and that near by is a mechanic who can repair the broken bolt and enable the train to proceed on its way, may not the conductor employ the mechanic? Again, suppose a bridge is discovered to be unsafe, and that there are timbers at a neighboring mill which will make it safe, may not the conductor, in behalf of his principal, employ men to haul the timber to the bridge? Once more, suppose the engineer of a locomotive to be disabled, and that it is necessary at once to move the train to avoid danger, and there is near by a competent engineer, may not the conductor employ him to take the train out of danger? In these examples we mean to include, as a silent factor, the fact that there is an emergency, allowing no time for communicating with superior officers, and requir ing immediate action. If it be true that there are cases of pressing emergency where the conductor is on the special occasion the highest representative of the company, then it must be true that he may do, in the emergency, what the chief officer, if present, might do. If the conductor is the only agent who can represent the company, then it is inconceivable that he should, for the purposes of the emergency, and during its existence, be other than the highest officer. The position arises with the emergency, and ends with it. The authority incident to the position is such, and such only, as the emergency imperatively creates.

Assuming, as we may justly do, that there are occasions when the exigency is so great, and the necessity so pressing, that the conductor stands temporarily as the representative of the company, with authority adequate to the urgent and immediate demands of the occasion, we inquire what is such an emergency as will clothe him with this authority and put him in the position designated.

Suppose that a locomotive is overturned upon its engineer, and he is in immediate danger of great bodily harm, would it not be competent for the conductor to hire a derrick, or a lifting apparatus, if one were near at hand, to lift the locomotive from the body of the engineer? Surely some one owes a duty to a man imperilled as an engineer would be in the case supposed, to release him from peril, and is there any one upon whom this duty can be so justly put as upon his employer? The man must, in the case supposed, have assistance, and do not the plainest principles of justice require that the primary duty of yielding assistance should devolve upon the employer rather than on strangers? An employer does not stand to his servants as a stranger; he owes them a duty. The cases all agree that some duty is owing from the master to the servant, but no case that we have been able to find defines the limits of this duty. Granting the existence of this general duty, and no one will deny that such a duty does exist, the inquiry is as to its character and extent.

Suppose the axle of a car to break because of a defect, and a brakeman's leg to be mangled by the derailment consequent upon the breaking of the axle, and that he is in imminent danger of bleeding to death unless surgical aid is summoned at once, and suppose the accident to occur at a point where there is no station, and when no officer superior to the conductor is present, would not the conductor have authority to call a surgeon? Is there not a duty to the mangled man that some one must discharge? And if there be such a duty, who owes it, the employer or a stranger? Humanity and justice unite in affirming that some one owes him this duty, since to assert the contrary is to affirm that upon no one rests the duty of calling aid that may save life.

If we concede the existence of this general duty, then the further search is for the one who in justice

owes the duty, and surely, where the question comes between the employer and a stranger, the just rule must be that it rests upon the former.

Authorities upon the question we are discussing are far from abundant. In the case of Marquette, etc., R. Co. v. Taft, 28 Mich. 289, a laborer in the service of the company was struck and injured by one of its trains, and the yardmaster and the superintendent employed a surgeon, and the court divided on the question of the company's liability, Graves and Campbell, JJ., denying its liability, and Cooley, J., and Christiancy, C. J.. affirming that it was liable to the surgeon. One opinion was written by Graves, J., and proceeds on the broad ground that no officer of the company could bind it to pay for surgical services rendered an employee. The case is however distinguishable from the present, even upon the theory adopted in the opinion of Judge Graves, for in this case there was an immediate necessity for surgical aid, while in the one cited there is not shown to have been any such necessity. Judge Cooley's opinion is a model of judicial reasoning, and forcibly maintains the duty of railway companies to provide surgical aid for its servants in cases of accidents incident to their employment. In one place he says: "We think it their duty to have some officer or agent at all times competent to exercise a discretionary authority in such cases, and that on grounds of public policy they should not be suffered to do otherwise." At another place he says: "We shall not stop to prove that there is a strong moral obligation resting upon any one engaged in a dangerous business, to do what may be immediately necessary to save life or prevent an injury becoming irreparable, when an accident happens to a person in his employ. We shall assume this to be too obvious to require argument." Another extract from this opinion, strongly applicable, is this: "There can be no doubt that it is within the scope of somebody's employment for a railway company to cause a beast which is injured in carriage or run over at a crossing to be picked up, and have the attention proper and suitable to its case; and if no one is authorized to do as much for the faithful servant of the company who is in like manner injured, but all persons in its service are impliedly forbidden to incur on its behalf any expense beyond what may be necessary to remove him out of the way of their trains and machineryeven to convey him to his house, or to save his life by binding up a threatening wound-theu if such is the law, the courts must not hesitate to apply it, even though it be impossible to avoid feeling that it ought not to be the law, and that no business of this extensive and hazardous nature ought to be suffered to be carried on with no one for the major part of the time empowered to recognize and perform a duty which, at least ou moral grounds, is so obvious and imperative. But we do not think such is the law."

In the case of Northern Central Ry. Co. v. State, 29 Md. 420, it was held that it is the duty of agents in charge of a railroad train to take care of one injured by a collision, and to do it with a proper regard for his safety and the laws of humanity.

It was held in Walker v. Great Western Ry. Co., L. R., 2 Exch. 228, that the general manager of the company had authority to employ a surgeon for a servant injured in the company's service. Chief Baron Kelly, in the course of the argument, inquired: "Must a board be convened before a man who has both his legs broken can have medical assistance?" See 36 L. J. (C. L.) 123.

In Swazey v. Union Manuf. Co., 42 Conn. 556, the court held that the business manager of a manufacturing corporation had authority to employ surgical aid for a lad who had received an injury in its service.

In Atlantic, etc., R. Co. v. Reisner, 18 Kans. 458, the holding was that the general agent of a railroad com