lish a valid contract of insurance between the defendant and Ellen K. Cannon. It is not enough for such purpose that the defendant signed a policy of insurance in pursuance of Mrs. Cannon's application, and tendered it to her. The testimony tends to prove, if it does not clearly show, that after signing the application Mrs. Cannon changed her mind; that she refused to accept the policy when tendered, and never received it; that neither she nor the beneficiary named in the policy paid the first premium, or any premium, or authorized payment of the same. In such a state of evidence, it would be error in the court to hold that the undisputed facts, viz. the signing of an application, with the execution and tender of the policy, necessarily prove a completed contract of insurance between the defendant and Mrs. Cannon. Rogers v. Insurance Co., 41 Conn. 97; Whiting v. Insurance Co., 129 Mass. 240. This question is not definitely passed upon in the charge. The court, however, couples the facts of the application, the execution of the policy, and the tender, with other undisputed facts, viz.: The plaintiff paid the premiums up to the time she attempted to surrender the policy; two or three years prior to such attempted surrender she wrote the defendant that she held the policy on Mrs. Cannon's life, telling how she claimed to have come by it, and offering to surrender it on return of the premiums paid, if the transaction were not straightforward; the defendant received this letter, and thereafter continued to receive premiums from the plaintiff on account of the policy, and thereupon the court tells the jury that: "These facts being proved and uncontradicted, the defendant was bound by the policy; and the plaintiff, though she acted in entire good faith in taking the policy and in advancing the premiums, which the defendant denies, cannot recover in this action." If this statement of the law applicable to the facts recited is incorrect, it was error for the court, on such ground, to direct the jury to return a verdict for the defendant. It is plainly impossible for the defendant to be bound by a contract which never existed. If Mrs. Cannon had died before the surrender of the policy, it may be that the defendant, through an application of the doctrine of estoppel, might have been compelled to pay the amount of insurance to the plaintiff. But that does not make the contract valid. It does not affect the liability of the defendant to return money paid under an honest mistake induced by its false representations. When the plaintiff discovered her mistake she returned the policy and demanded the return of the premiums. This she had the right to do, if she had acted in good faith. Her money had been paid in reliance on a valid contract, and not on the chance of an estoppel. She could not be compelled to keep up these payments because the defendant, in the event of the death of the insured, might be estopped from denying the truth of its representations. Nor was the defendant entitled to retain the premiums as com

pensation for the risk sustained. Whatever the risk may have been, it was not sustained as the result of a contract between the parties, but was incurred wholly through the defendant's own wrong. If, indeed, death had occurred, and the plaintiff had received the amount of insurance, she would then by her own act be estopped from claiming a return of the premium; but she cannot be prevented from reclaiming her money, paid under a mistake, because the defendant, if it had retained the money, might be estopped from taking the advantage of its own wrong in causing the mistake. We see no ground on which this part of the charge can be sustained; none was suggested in argument. We cannot consider whether the evidence on the question really tried to the jury, i. e. the good faith of the plaintiff, is so conclusive that the plaintiff cannot be said to have been injured by the error in the charge. The conclusion is one to be drawn from conflicting testimony, and one of fact, which the jury were not permitted to pass upon. The control a trial court may properly exercise is very large, both before and after a verdict; but questions of fact in issue, and material to a judgment upon which there is evidence sufficient to support a verdict, must be submitted to a jury. Occum Co. v. A. W. Sprague Manuf'g Co., 34 Conn. 529, 538; Cook v. Morris, 66 Conn. 196, 211, 33 Atl. 994. Upon the testimony reported, the jury might be justified in finding that the payments were in fact and intention made by the plaintiff in the execution of a wagering contract on the life of Mrs. Cannon, which the law holds to be both immoral and illegal. The charge does not state the law applicable to such a state of facts, either in respect to the effect of an honest belief on the part of the plaintiff, induced by the defendant, that the transaction was legal, or as to the position of the payments while held by the defendant pending the termination of the life which is the subject of the wager. In the view taken by the court, this was unnecessary. So these questions, while evidently in the case, are not presented by this record. There is error in the judgment of the superior court, and a new trial is granted. The other judges concur.

O'DONNELL v. SARGENT et al. (Supreme Court of Errors of Connecticut. July 13, 1897.)

APPEAL AND ERROR-WHEN LIES-MASTER AND SERVANT-NEGLIGENCE-PLEADING.

1. Inasmuch as an appeal lies whenever a writ of error could be sustained, an appeal in which the only error assigned is the overruling of a general demurrer to the complaint is proper, though defendant declined to avail himself of his right to plead over, under Gen. St. 1888, § 1014. 2. A complaint alleged that plaintiff was in the employ of defendant on a certain day, and had been so employed previously; that on that day, in pursuance of his regular duty, as instructed by defendant, he mounted a ladder, furnished by defendant for the purpose, to oil a certain shaft; that the ladder previous to that day had been

furnished with spikes to prevent its slipping on the floor; that "the agents, servants, and employés of the defendant, and the defendant, had carelessly and wantonly removed" said spikes since plaintiff had last used the ladder, and he had not been notified thereof; and that by reason of such removal the ladder slipped, and plaintiff was thrown to the floor and injured, without fault or negligence on his part. Held, that the overruling of a general demurrer to the complaint was not error, since it was defendant's duty to notify plaintiff of the removal of the spikes, and defendant could not avoid liability for a breach of such duty on the ground that plaintiff assumed the risk, or was negligent in not inspecting the ladder before he used it.

Appeal from superior court, New Haven county; Milton A. Shumway, Judge.

Action by Thomas O'Donnell against Sargent & Co. to recover damages for personal injuries. Upon the overruling of defendants' demurrer to the complaint, they refused to plead over, and judgment was rendered for plaintiff for nominal damages. Defendants appeal. Affirmed.

The complaint set forth the following facts: "(1) On and prior to January 16, 1894, the defendant was engaged in carrying on a manufacturing business in the city of New Haven, in said town of New Haven, and, for the purpose of propelling its machinery, owned, controlled, managed, and ran a large steam engine, connected with which was a line of heavy shafting, in the upper part and near the ceiling of the room in which said engine was located; and said line of shafting was situated about twenty feet from the flooring of said engine room, and was accessible and could be reached only by a ladder, with one end thereof resting on the floor of said room, and the other end against said shafting; and, in order to keep said shafting in running order, it was necessary to oil the same at least twice every twenty-four hours, and said oiling could be done only by climbing up upon said ladder placed as aforesaid; and the defendant had the exclusive control and management of said engine and shafting, and provided the ladder to be placed as aforesaid for the purpose of oiling said line of shafting, and it was the defendant's duty to provide a suitable ladder, so made that the same would be safe to climb upon, and with the lower end of it so provided with sharp points or spikes that the same would not and could not slip when placed on the floor of said engine room as aforesaid. (2) On said 16th day of January, 1894, the plaintiff was employed by the defendant as fireman to attend said engine, and as a part of his work as such fireman he was directed and ordered by the defendant to oil said line of shafting at its bearings every morning just before 7 o'clock, and every noon between the hours of 12 and 1 o'clock in the afternoon, and to oil the same by placing the ladder provided by the defendant upon the floor of said engine room, with the top of said ladder resting against said line of shafting and against the wooden beam just under said shafting, according as the

bearings to be oiled could be made most accessible; and the defendant supplied the ladder on which the plaintiff had to climb to do said oiling. (3) On said 16th day of January, 1894, the said ladder provided by the defendant was unsafe, unsuitable, and unfit to climb upon to oil said line of shafting as aforesaid, in that it was not provided with any sharp points, spikes, prods, or any other suitable means to prevent its slipping on the floor of said engine room when placed in position to oil said line of shafting, and in that the agents, servants, and employés of the defendant, and the defendant, had carelessly and wantonly removed, broken, cut off, and taken away the spikes and prods which had formerly been in the lower end of said ladder; and the floor of said engine room was hard, and worn smooth, so that the ladder provided by the defendant could not stand safely upon said floor unless properly provided with prods and spikes in the lower end thereof to keep said ladder from slipping. (4) On said 16th day of January, 1894, the plaintiff, while under orders as aforesaid to oil said line of shafting, climbed upon said ladder while placed in the ordinary position necessary and convenient to do said work, and without any fault or negligence on the part of the plaintiff, and while using ordinary and reasonable care, the foot or lower end of said ladder suddenly slipped and moved outwards upon said floor, thereby pulling the upper end off its resting and bearing, and thereby causing said ladder to fall flat upon said floor while the plaintiff was on the upper part of the same, engaged in oiling said shafting; and thereby the plaintiff fell and was thrown upon the floor of said engine room, a distance of about eighteen feet. (5) By reason of said fall the plaintiff hit his left foot upon the floor of said engine room with great force, and thereby bruised, strained, wrenched, twisted, and severely injured his left ankle and foot, and the cords and muscles thereof, so that the said ankle became weak, lame, and swollen, and very painful to the plaintiff, and the plaintiff was weak, sick, and lame for a long time thereafter, to wit, for the period of seven months, and unable to walk, stand, or attend to any of his ordinary business; and said injury is permanent and incurable, and the plaintiff has suffered and still does suffer great pain from the same; and the plaintiff has expended large sums of money in endeavoring to cure himself of said injuries, to wit, the sum of $200. (6) The plaintiff at the time of said injury was a fireman, and capable of earning the sum of $11 per week, and ever since said injury the plaintiff has been unable to perform any of the duties or do any of the work of a fireman, and on account of said injuries now is, and will always remain, unable to do or to perform any of the work or duties of a fireman. The plaintiff claims $5,000 damages."

The defendant demurred to this complaint because: "(1) The alleged supposed defects

in the ladder, and the alleged condition of the floor of the engine room, all as described in the third paragraph of the complaint, were obvious to the plaintiff at the time of the injury complained of, and he knew of the same, or ought to have known of the same, and he had equal and the same means of knowledge with the defendant of any danger arising from such supposed defect; and he was bound to judge for himself of the danger of climbing the ladder at the time of said injury, and took upon himself whatever risks were incurred in the use of said ladder. (2) Upon the facts stated in the complaint, the plaintiff was guilty of negligence materially contributing to the injury. (3) It being alleged in the third paragraph of said complaint that the agents, servants, and employés of the defendant had carelessly and wantonly removed, broken, cut off, and taken away the spikes and prods which had formerly been in the lower end of said ladder, it appears that the injury of the plaintiff was caused by the negligence of the fellow servants of the plaintiff; and in so far as it is alleged that such spikes and prods were removed, broken, cut off, and taken away by the defendant, the defendant had the right to judge for itself what sort of ladders, as well as floors, it would use in its business; and the plaintiff had full knowledge, or means of knowledge. of the circumstances and facts about such ladder and floor; and in entering the employ of the defendant, and undertak ing to oil said line of shafting by the use of said ladder described in the complaint, the plaintiff assumed all the risks of such service arising from the supposed defects (but ob vious, if so) in said ladder and floor described in the complaint. (4) Upon the facts stated in the complaint, the plaintiff has no right of action against the defendant, and is not entitled to the relief sought for in said complaint."

The judgment of the trial court is in the following language: "This action, by writ and complaint dated August 7, 1894, claiming $5,000 damages, as on file, was duly served on the defendant, as appears by the officer's return indorsed thereon, and came to this court on the first Tuesday of September, 1894, when the parties appeared, and the defendant filed its demurrer, as on file, and thence by continuance to the 15th day of February, 1895, when the parties appeared; and the court, having heard the parties, overruled said demurrer; and said case came thence to the 30th day of January, 1897, when the parties appeared, and were heard as to the damages to be assessed in said case. The court, having heard the parties, finds that the plaintiff has sustained damages, as alleged in his complaint, to the amount of twenty-five dollars; said amount being nominal damages. Whereupon it is adjudged that the plaintiff recover of the defendant twenty-five dollars damages, and his costs, taxed at $."

The defendant appealed from this judgment,

alleging that the trial court erred in "overruling the demurrer of the defendant to the complaint of the plaintiff, and in overruling the several causes of the demurrer therein alleged. It therefore prays for such relief as is provided by law in the premises."

John W. Alling and James E. Wheeler, for appellants. Charles S. Hamilton, for appellee.

ANDREWS, C. J. The appeal is properly here. The only error assigned is that the court erred in overruling the defendant's demurrer to the complaint. At the common law, upon the overruling of a demurrer to a complaint judgment in chief went against the defendant. 1 Swift, Dig. 639; 1 Chit. Pl. 701. In such a case, very clearly, a writ of error would lie from the judgment on the demurrer. According to our present practice, an appeal will lie wherever a writ of error could be sustained. Our statute (Gen. St. 1888, § 1014) allows a defendant, after the overruling of a demurrer, to plead over, if he desires to do so. In this case the defendant declined to plead over, and final judgment was rendered against it. But the refusal to plead did not take away the right to claim error in the ruling on the demurrer.

There is no error in the ruling of the superior court unless the complaint is so defective that under its averments a valid judgment in favor of the plaintiff could not be proved consistently with the rules governing the admission of evidence. The defendant's assignment of error assumes, as also its argument contends, that the complaint is defective and insufficient to that extent. It is not very difficult to test this. Suppose the complaint, just as it is, to be denied; could a good cause of action be proved? Evidence to prove all the facts put in issue would be admissible, also to prove all relevant facts, and all facts necessary to introduce or explain the facts in issue, or the relevant facts. It would then be competent to prove, under the averments in the complaint, that the plaintiff was in the employ of the defendant on the day named; that he had been so employed for some time previous to that day; that a part of his employment was to oil the shafting, as set forth; that the ladder he had used for that purpose at all times previous to that day had been supplied with spikes or prods at its lower end, and so as to prevent its slipping; that "the agents, servants, and employés of the defendant, and the defendant, had carelessly and wantonly removed, broken, cut off, and taken away the spikes and prods which had formerly been in the lower end of said ladder"; and that this had been done since the plaintiff had last used the said ladder, and without giving him any notice of such removal,-because it is alleged that the plaintiff was without fault or negligence on his part,-and that by reason of such removal the ladder slipped, and plaintiff fell and was injured. These facts would establish a good cause of action in favor of the

plaintiff. If the defendant itself removed the prods, it was in duty bound to notify the plaintiff of that fact, and without such notice he was justified in believing that the ladder was in the same condition as when he had last used it. IIe had no occasion to examine it that morning before he went up on it to oil the machinery. An employer is bound to furnish his servant with a reasonably safe place in which to do his work. He is bound to provide tools and appliances which are free from secret defects. If he does this, he is not liable to the servant. If he does not do this, or if he does not point out the defects, and injury ensue to the servant, then the employer is liable; and much more so if the employer has himself created the danger which causes the injury. There is no error. The other judges concur.

CROSGROVE v. CROSGROVE et al. (Supreme Court of Errors of Connecticut. July 13, 1897.)

WILLS-CONSTRUCTION - DESIGNATION OF BENEFICIARIES-DESCRIPTION OF PROPERTY-NATURE OF ESTATE-ALIENS-DISABILITY-MORTGAGESVALIDITY.

1. Testator made 17 tersely expressed bequests to his brother and sisters, nephews and nieces, most of whom were married and had children. In the bequests to the brother who had a wife, and to those of the sisters who had husbands, the gifts were to both husband and wife. In the cases where the nieces or nephews were married, either with or without children, the bequest in each case was to the relative, either niece or nephew, "and family." Held, that these bequests to a relative "and family" were to be equally divided between the relative named, the wife or husband, and the children, if any, living at the time of the testator's decease.

2. In a devise of real property for life, with remainder to the heirs of testator, consisting of one brother and one sister, both resident citizens, and two nonresident alien sisters, not citizens, or wives of citizens. of France (Gen, St. § 15), the remainder vests only in the resident brother and sister.

3. Aliens may acquire personal property by bequest.

4. Where the language used in a devise covers an interest greater than that held by the devisor in the property, the devise is not thereby defeated, but is effectual as to such interest as the devisor had.

5. In a suit for the construction of a will devising testator's interest in land of which he was mortgagee, the validity of the mortgage debt cannot be inquired into.

6. A bequest was made to the Second Congregational Church. The church, as such, was an unincorporated body, incapable of holding property; but the equivalent incorporated body, the Second Congregational Society, held all its property for the exclusive use of the church. Held, that the bequest was payable to the Second Congregational Society.

7. A bequest to a church of money to be put at usury, or to the best interests of the church, is an absolute gift to the church.

the superior court for consideration of the supreme court of errors.

The facts are as follows: (1) On the 19th day of June, 1893, Hugh Crosgrove, of Norwich, in New London county, in the state of Connecticut, died, leaving his last will and testament, dated June 7, 1893, a copy of which is hereto annexed, and marked "Exhibit A," and made a part of this complaint. Said will was on the 30th day of June, 1893, duly probated in the court of probate for the district of Norwich; and the plaintiff was duly appointed and qualified, and continues to be, the executor of said will. John Bennett, of Rye, N. Y., who was appointed in said will co-executor with the petitioner, refused to accept the executorship. (2) At the time of the death of the said Hugh Crosgrove the following were his next of kin, to wit: Thomas Crosgrove, a brother, of Norwich, Conn.; and Eliza C. Atchison, a sister, of Montville, Conn., and wife of Alexander Atchison, of said Montville; Ann C. Bennett, a sister, of Rathfarnham, in Ireland; and Sarah Brownlee, a sister, of Belfast, in Ireland. (3) Since the death of the testator, Hugh Crosgrove, the said Ann C. Bennett has died in Ireland, leaving the following children, to wit: The said Mary J. Kelly, Margaret Hughes, John Bennett, Eliza White, Hugh Bennett, Annie Sheidow, George Bennett, and Fanny Whitney,-and leaving a last will, of which the said Hugh Bennett and William Hughes are the executors. Since the death of said Ann C. Bennett the said Mary J. Kelly has died in Ireland, leaving her husband, the said Robert Kelly, Sr., and her said children, William Kelly, Margaret Kelly, and Robert Kelly, Jr., in Ireland, her surviving, and leaving a last will, of which said husband is the executor. The said William Crosgrove, of Chicago, mentioned in said will, is a nephew of the testator; and at the time of the testator's death his family consisted of his wife, Minnie Crosgrove, and a minor child, Georgia M. Crosgrove. Since the death of the testator two other children have been born to said William Crosgrove, to wit, the said Harry Crosgrove and Clara M. Crosgrove; and the family of this William Crosgrove now consists of him, his said wife, and said three children. The said Margaret Hughes, of Rathfarnham, Ireland, mentioned in said will, is a niece of the testator; and at the time of the testator's death her family consisted of her husband, said William Hughes, Sr., and the following named children: William Hughes, Jr., of age; George Hughes, a minor; James Hughes, a minor; Ann Jane Hughes, a minor; Frances Hughes, a minor; and Margaret E. Hughes, a minor. The said John Bennett, of Park Ridge, mentioned in said will, is a nephew of the testator; and at the time of the testator's death his

Suit by George L. Crosgrove, executor, against Thomas Crosgrove and others, to obtain the construction of a will. Reserved by

and their children, to wit: William J. Bennett, of age; Mary J. Bennett, of age; George C. Bennett, a minor; Eliza McC. Bennett, a minor; Matilda Bennett, a minor; and Mar

garet E. Bennett, a minor. The said Eliza White, of Massachusetts, mentioned in said will, is a niece of the testator, and at his death had three sons, William H. White, then aged 18 years; George F. White, then aged 17 years; and James W. White, then aged 14 years. The said Hugh Bennett, of Ireland, mentioned in said will, is a nephew of the testator; and at the time of the testator's death his family consisted only of himself and his wife, Ellen Bennett. The said Annie Sheidow, of Ireland, mentioned in said will, is a niece of the testator; and at the time of the testator's death her family consisted of her husband, Thomas Sheidow, and their minor children, Archibald N. B. Sheidow, Frances B. Sheidow, Mabel A. Sheidow, and Thomas G. Sheidow. Since the death of the testator one other child has been born to Annie Sheidow, to wit, Violet E. Sheidow; and the family of said Annie Sheidow now consists of her, her husband, and said five children. The said George Bennett, of Ireland, mentioned in said will, is a nephew of the testator; and at the time of the testator's death his family consisted of himself and his wife, Mary E. Bennett. The said Fannie Whitney, of Ireland, mentioned in said will, is a niece of the testator; and at the time of the testator's death her family consisted of her husband, James Whitney, and their minor children, Harriet T. Whitney, George A. Whitney, Arthur J. Whitney, Matilda Whitney, Lucy M. Whitney, and John F. Whitney. The said James Brownlee, of New York, mentioned in said will, is a nephew of the testator; and at the time of the testator's death his family consisted of his wife, Amelia S. McD. Brownlee, and their minor child, Esther E. Brownlee. Since the death of the testator one other child has been born to James, Brownlee, to wit, Brownlee; and the family now consists of James Brownlee, his wife, and said two children. In said Norwich there is no corporation of the name the "Second Congregational Church," but there is in Norwich a corporation named the "Second Congregational Society," having the control of a church edifice in said Norwich, commonly called the "Second Congregational Church," in which church the testator was a regular attendant and pewholder. The house No. 30 Baltic street, in Norwich, has always been owned by the brother of the testator, Thomas Crosgrove, who in October, 1860, mortgaged the same to the testator to secure his note then due the testator, for $450, payable on demand, with yearly interest. No part of the principal and no interest was ever paid by Thomas Crosgrove, or demanded by the testator, on said note and mortgage. The note and mortgage were in possession of the testator at his death, uncanceled. And from the time said note and mortgage were given there was no acknowledgment of the same as an existing indebtedness by said Thomas Crosgrove, nor promise by him to pay the same to the testator or to his executor. At the testator's death there was on the farm devised to sister Eliza and husband

one horse and tor. The following is the will of the testator: "Be it known to all Persons: That I Hugh Crosgrov of the town of Norwich in the County of New London in the State of Connecticut being of lawful age, of sound and disposing mind, memory and judgment and under no improper influence or restraint do hereby make publish and declare this to be my last will and testament hereby revoking all previous wills and codicils by me made. I give devise and bequeath my estate and property real and personal as follows: that is to say: to mi Brother Thomas Crosgrov and wife The House on Baltic Stree 30 and the Rent of House 86 Chestnut street to be capt in Reper and return to mi Ers and to mi sister Mrs. George bennett i Boquath five hundred dollars. and i Bequath to mi sister Sarah five Hundred dollars and i Bequeth mi nefu Thomas H. Crosgrov seventeen hundred & twenty sex dollars that I lent Him in 1883 with int sinc & i Bequeath to mi nefu G. L. Crosgrov seventeen Hundred Dollars. & i Bequath to mi nefu William Crosgrov & fomly twelve hundred dollars & i Bequeath to sister Elize and husband five Hundred and use of farm and Stok at deth Return to mi hers & i Bequeath to mi nefu Mary Jane Kelly ten Hundred dollars & i Bequeath to mi nefu Margaret Hughs and famly ten Hundred dollars & i Beqeath to mi nefu John Bennett and famley Seventeen Hundred dollars & i Bequeath to mi nefu Eliza White and boys ten Hundred dollars & i Bequeath to mi nefu Hugh Bennett and famley twelve Hundred dollars. & i Bequath to mi nefu Anne Shidow and famley ten Hundred dollars & i Boquath to mi nefu George Bennett and famley twelve Hundred dollars & i Boquath to mi nefu Faney Whitney and famely ten Hundred allers & i Boquath to mi nefu James Brownle and famley ten Hundred dollars & i Boquath to mi fefu sam Brownlle ten Hundred dollars and i boquath mi friend Hugh King for favours received fifty dollars & i Boquath to the second Congregational church five Hundred dollars to be put ausery or the best interests of the church I appoint G. L. Crosgrove of Norwich Conn. & John Bennett of the town of Rye Westchester county and state of New York executors of this my last will and testament

cows owned by the testa

"In witness whereof I have signed sealed published and declared this instrument as my last will and testament at said Norwich on the 7th day of June A. D. 1893."

The questions as to which an adjudication of the court is asked are as follows: "(1) In each of the several instances in said will of a bequest to a person named and "family," does the husband or wife (as the case may be) of the person named share in the bequest? Do children born to said person named since the testator's death share in the said bequests, and among whom, in each