Clauses second and third, considered by themselves, are plain. Each gives a definite legacy of $500 upon the explicit prerequisite that the legatee shall not contest the will. Otherwise such legatee is to take nothing un

Appeal from Supreme Judicial Court; Suf- der the will. Each of these clauses is comfolk County.

Petition for construction of the will of William McKie by Ethel B. Lamb against Robert F. Jordan and another, executors, and others. From the decree, defendants appeal. Reversed, and decree ordered entered.

R. H. Sherman, of Boston, for appellants. John S. C. Nicholls and William W. Risk, both of Boston, for appellee.

plete in itself. Each has the appearance of finality. Commonly a devise or legacy upon condition that the beneficiary shall not contest the will is the full expression of testamentary bounty.

[1] The meaning of clause fourth is not doubtful. Its rational purport is to put the two McKie grandchildren in the place of their father so far as concerns the total amount for their benefit, but to give it in trust with right of survivorship in case of the death of either unmarried before reaching the age of thirty-five years. It is to be observed that this clause does not say that these grandchildren are to receive the share which their father would have received had he survived the testator and the latter had died intestate. Its terms are that there shall be given to trustees "a sum equal to the amount that my son would have received had he been living at the time of my death." That amount is not determined by the share he would have received in the event of intestacy of his father. It is determined by the amount which would have come to him under the will. That this is its meaning is made clear from the following clause fifth. This is

RUGG, C. J. This petition calls for the construction of the will of William McKie, late of Boston The testator was a widower about seventy-five years old at the time of its execution. His prospective heirs were two grandchildren, William and Edward McKie, minor children of his deceased son, Eldred, two other grandchildren, William F. and Ethel B. Rome, then aged respectively about twenty-five and twenty years, children of his deceased daughter Belle, and four daughters, one a spinster, one a widow, and two married. These persons all survived him, are beneficiaries under the will, and are parties hereto. The will contains six clauses. The first relates to the payment of debts and the last nominates executors. These have no pertin-a residuary clause in which no person is ency to the present litigation and need not be considered further. The controversy is confined to the other four clauses, which are in these words:

"Second. To my grandson William H. Rome, Jr. five hundred dollars upon the expressed condition that he shall not contest this will.

If he does contest then he takes nothing. Third. To my granddaughter, Ethel B. Rome, five hundred dollars upon the expressed condition that she does not contest this will. If she does contest then she takes nothing. Fourth. To Robert F. Jordan and Millie W. McKie in trust for my grandchildren, sons of my deceased son Eldred E. McKie, a sum equal to the amount that my said son would have received had he been living at the time of my death, the income or whatever part thereof that said trustees shall deem necessary, to be paid said children in equal part, and said principal to be paid to the said children as they arrive at the age of thirty five. In the event of either of them dying before reaching said age, and not

named but in which the beneficiaries are indicated by reference to classes of relatives. Manifestly all his children living at the time of the testator's death are included. If his son Eldred had been living, of course he also would have been included within the scope of the words used. Since he had died previous1y, his share is to go to his two children by right of representation. However, it does not go to them as a free and absolute gift, because it is "subject to the conditions heretofore set forth," that is to say, the conditions as to survivorship and trust which are contained in clause fourth. While these perhaps are not conditions in the narrowest and most technical sense, they are limitations upon full enjoyment and in a general and popular signification may properly be described as conditions. Any other construction would involve giving to the McKie children a double share in the grandfather's estate to the detriment of his own surviving children, a re

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

sult not naturally to be reached without un- [ children to take by right of representation" ambiguous expression of purpose. beyond the limitations imposed by their con

the Rome and the McKie grandchildren share in the residue. But we think that would be contrary to the intent of the testator as manifested by his whole will. That instrument should be read as a unit and all its clauses harmonized one with the others so as to constitute a rational entity so far as is consistent with the words used.

[2] The Rome grandchildren are excluded text, and by ignoring the normal inferences from sharing in the residue for two reasons: and eliding the irresistible deduction from (1) In the first place the natural inference the expressions of clauses second and third, from the form of words used in clauses sec- the conclusion might be reached that both ond and third is that the legacy given in each of these clauses is the complete expression of the design of the testator for the benefit of these legatees. When a testator makes a gift to one of his next of kin on the express condition that he shall receive nothing if he publishes his disappointment by making contest as to the validity of the will, that usually is a full and consummated statement of testamentary purpose. That is the impression conveyed by the words used in clauses second and third. (2) In the second place this interpretation is the only one which imputes intelligence to the testator in phrasing these clauses. If the Rome grandchildren are included among those who are to share in the residue of the estate, then the five hundred dollars given to each by the second and third clauses would be a gift of that sum more than would be received by any other next of kin of equal degree or than would be received by the Rome grandchildren if they should contest the will successfully. It would be a gratuity of five hundred dollars more than they possibly could get in any other way, upon the express condition that each one does not contest the will. It would be a gift to induce them not to do something which no rational person would think of doing. Such a provision would be without sense. It would have no foundation in reason. Such vacuity of mind cannot be attributed to the testator unless there is no escape from it.

[3, 4] Clause fifth is not couched in accurate or felicitous language. Its construction is not free from difficulty. But the necessary meaning seems to us to be that which we have stated. By giving to the words "subject to the conditions heretofore set forth" a narrowly constricted and somewhat technical construction, by unduly enlarging the scope of the phrase "the children of my deceased

[5] The decision of all questions respecting the construction of wills "depends upon the intention of the testator as manifested by the words he has used, and an omission to express his intention cannot be supplied by conjecture. But if a reading of the whole will produces the conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words," or a benefaction to be denied which is not manifested by an apt phrase, "the court must supply the defect by implication, and so mould the language of the testator as to carry into effect as far as possible the intention which it is of opinion that he has on the whole will sufficiently declared." Metcalf v. Framingham Parish, 128 Mass. 370, 374. Polsey v. Newton, 199 Mass. 450, 85 N. E. 574, 15 Ann. Cas. 139; Jones v. Gane, 205 Mass. 37, 44, 91 N. E. 129. The application of that principle leads to the conclusion which has been stated.

[6] Extrinsic evidence to show the intent of the testator and to explain the will was inadmissible.

The result is that the decree is reversed and a decree is to be entered to the effect that the Rome and McKie grandchildren take only under clauses second, third and fourth and are excluded from benefits under clause fifth. Costs as between solicitor and client are to be allowed out of the estate, the amount to be determined by a single justice. So ordered.

(123 N.E.)

(189 Ind. 100)
TERRE HAUTE, I. & E. TRACTION CO. v.
STEVENSON. (No. 23307.)*

(Supreme Court of Indiana. June 27, 1919.)
1. RAILROADS 328(11)—INJURIES AT CROSS-
ING CONTRIBUTORY NEGLIGENCE-FAILURE
TO LOOK.

That plaintiff's buggy top was up and back curtain down did not excuse her for not looking for an approaching interurban car before going upon the track at a private crossing.

2. RAILROADS 338-INJURIES AT CROSSING -LAST CLEAR CHANCE.

Where the motorman of an interurban car when 500 feet away from a private crossing saw plaintiff's buggy approaching crossing, and knew plaintiff had no knowledge of approaching car, but failed to slow down or stop, and struck the buggy, the motorman was guilty of negligence subjecting his company to liability under the last clear chance doctrine, despite plaintiff's contributory negligence.

3. RAILROADS 320-INJURIES AT CROSSING -GENERAL DUTY OF CARE.

A special duty to use due care in favor of one in danger on a railroad's crossing or track to the knowledge of the company's employé arises only in the case of actual notice to the employé of the particular person's peril, though a general duty exists to use due care for the protection of persons who may or may not be in danger at crossing, but are not known to be in danger.

4. RAILROADS 338-INJURIES AT CROSSING -LAST CLEAR CHANCE-CONTINUING CONTRIBUTORY NEGLIGENCE.

person, to realize that plaintiff probably did not know of her peril as she approached the crossing, was admissible under the allegation of the complaint that he knew she did not know her peril.

8. RAILROADS 348(6)—Injuries at CrossING KNOWLEDGE OF MOTORMAN SUFFICIENCY OF EVIDENCE.

In an action against an interurban railroad for injuries to plaintiff in her buggy at a crossing, evidence held sufficient to sustain the allegation of the complaint that the motorman of the car knew in time to stop or check it that the occupants of plaintiff's buggy did not know of the car's approach.

9. APPEAL AND ERROR 1048(6)—HARMLESS ERROR-EVIDENCE.

In an action against an interurban railroad for injuries at its crossing to plaintiff in her buggy, sustaining objection by plaintiff to a question asked of plaintiff's witness, a motorman, on cross-examination, held harmless to defendant, which could have avoided the harm, if any, by adopting the witness or calling him in defense.

10. EVIDENCE 554-ANSWER OF MEDICAL EXPERT SPECULATION.

In an action for personal injuries, a doctor's answer as an expert that such an injury might permanently affect plaintiff's nervous system was proper, and not inadmissible as speculation.

11. RAILROADS

351(22)-TRIAL 253(4) -INJURIES AT CROSSING-INSTRUCTION ON "LAST CLEAR CHANCE."

In an action against an interurban railroad for injuries to plaintiff in her buggy at a crossThe last clear chance doctrine applies to ing, recovery being sought under the doctrine render an interurban railway liable for injuries of "last clear chance," instruction held proper, at a crossing to plaintiff, whose peril the motor-as charging that actual knowledge of the moman appreciated, though plaintiff's contributory negligence continued up to the moment of her injury.

5. RAILROADS 320-INJURIES AT CROSSING -DUE CARE-SPEED Of Car.

torman as to plaintiff's peril was required, and that failure of the motorman to use ordinary care to discover plaintiff would not charge the railroad with liability.

12. TRIAL

ERROR.

296(3)—INSTRUCTION-CURE OF

When the motorman of an interurban car saw the horse of one driving a buggy along a In an action against an interurban railparallel highway, leaving the highway and turn-road for injuries to plaintiff in her buggy at ing to go on and over a crossing, it became his its crossing, instruction that it was the duty duty to observe due care, an element of which of the motorman to have used every reasonable was the speed of the car. means to have avoided the collision, in view of other instructions that the motorman's obliga338-INJURIES AT CROSSING tion was to use the care of a reasonably prudent person, held harmless to the railroad. 13. TRIAL

6. RAILROADS

ERROR.

296(11)-INSTRUCTION-CURE OF

-Knowledge of Peril-PROOF. Plaintiff, injured at an interurban railroad's crossing and charging that the motorman of the car knew she had no knowledge of its approach when driving her buggy towards the In an action for injuries against an intercrossing, need show only such facts and circum- urban railroad, where other instructions informstances as would have caused a reasonably pru-ed the jury their verdict must rest on the evident person to realize that she probably did not know of her peril, and that it would continue. 7. RAILROADS 345(3)—INJURIES AT CROSSKNOWLEDGE OF MOTORMAN EVI

ING
DENCE.

dence and law as stated, the omission of an instruction to limit the amount of damages to the showing made by the evidence of the extent of the injury and suffering was harmless to the railroad.

In an action against a railroad for injuries 14. TRIAL 260(1) — INSTRUCTION-REPETIto plaintiff in her buggy at a crossing, proof of

facts and circumstances which should have

TION.

Requested instructions substantially covercaused the motorman, as a reasonably prudent | ed by others given were properly refused. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 123 N.E.-50

*Rehearing denied 126 N. E. 3.

Appeal from Circuit Court, Vermillion | the collision occurred; that the motorman County; Barton S. Aikman, Judge. knew that the buggy top was up and the back curtain down, and knew that neither

Action by Emma L. Stevenson against the

Terre Haute, Indianapolis & Eastern Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McNutt, Wallace & Sanders, of Terre Haute, Conley & Conley, of Newport, and W. H. Latta, of Indianapolis, for appellant. James E. Piety and John O. Piety, both of Indianapolis, H. B. Aikman, of Newport, and Wm. F. Elliott, of Indianapolis, for appellee.

HARVEY, J. This cause was transferred to the Supreme Court under Acts 1901, p. 590. Appellee was injured by a collision at a private crossing between appellant's interurban car and a buggy in which appellee and her daughter were riding.

plaintiff nor her daughter knew of the approach of the car, but knew that they were not aware of their perilous situation; that the motorman, so knowing, could have stopped said car within a distance of 100 feet before reaching said crossing, but the motorman, notwithstanding said knowledge, wrongfully, carelessly, and negligently failed to stop the car or check the speed, and wrongfully, carelessly, and negligently ran said car toward and over said crossing without sounding its gong or whistle, or giving any warning of any kind, and so ran said car at from 35 to 45 miles per hour against said horse and buggy; that, if the speed of the car had been checked, plaintiff could have crossed said track in safety, or a warning given to plaintiff would have caused her to stop the horse before reaching the crossing.

These allegations show a clear chance in defendant to have avoided collision after

The complaint, in substance, alleges that a public highway near the point in question runs parallel to the interurban track of appellant, and upon the other side of the track from the plaintiff's home; that said cross-discovery of the peril, which is sufficiently ing is a part of the private drive leading from said highway over the track to her home.

To avoid a judgment upon a verdict for plaintiff appellant relies upon allegations of error in overruling its demurrer to the complaint; and overruling its motion for a new trial.

alleged. The alleged discovery by defendant of such chance, and the alleged failure to use due care after such discovery, show a cause of action, notwithstanding plaintiff's admitted negligence.

Appellant asserts that, as the complaint shows that the contributory negligence of plaintiff continued to the time of the collision, and further shows that the negligence of plaintiff was concurrent with the alleged negligence of defendant, the doctrine of last clear chance does not apply.

[3, 4] The traveler's peril known to the motorman creates a special duty to take advantage of his chance, if he have a chance. This duty to avoid a collision continues so long as the peril continues. When a travel

By a fair construction it appears from the allegations of the complaint that as the vehicle turned into said private approach to said track the plaintiff did not look for the car, nor did her daughter, who was driving, It is not alleged that there were obstructions preventing them from seeing the car. It is not alleged that they listened for a car, nor that there was anything to prevent them from hearing had they listened. It is alleg-er is in a perilous situation resulting from ed indirectly that neither of them knew of the car's approach, and that in such ignorance they continued to approach, and drove upon the track.

[1] The fact alleged that the buggy top was up and the back curtain thereof down does not excuse those in the buggy for not looking. It rather emphasizes the need of their looking. So considered, the complaint shows contributory negligence, and is there for insufficient, unless further allegations show that this contributory negligence does not bar recovery.

[2] An effort to show that such contributory negligence does not bar a recovery is found in further allegations to the effect that, when more than 500 feet from this private crossing, the motorman had a clear and unobstructed view of the horse and buggy, and saw it turn from the highway into said private drive at about 60 feet from said private crossing, and knew it was approaching said crossing to go over the same, and he continued to have such unobstructed view until

his own negligence, and the peril is known to the motorman in time to clearly afford an opportunity to avoid injuring the one in peril, his duty to use the chance arises and continues while the peril lasts, whether the negligence of the traveler continues or is concurrent, or whether the traveler becomes duly, though ineffectively, diligent. Neither concurrence nor continuance of the traveler's negligence alone is a' defense when the motorman has a last clear chance to avoid the injury by due diligence after the discovery of the peril. Such continuance of the negligence of the traveler would be a defense if the motorman did not know of the peril thereby created, though the motorman was at the time negligent in not knowing. No special duty to use due care in favor of a particular party arises without actual notice of the particular party's peril. A general duty exists, in the absence of such actual knowledge, to use due care for the protection generally of parties who may or may not be in danger at crossings, but are not

(123 N.E.)

known to be in danger, and contributory! E. 343; Krenzer v. Pittsburgh, etc., Ry. negligence is a defense when this general, Co., 151 Ind. 587, 43 N. E. 649, 52 N. E. and not a specific, duty of the motorman 220, 68 Am. St. Rep. 252, cited in 8 Am. St. is violated.