transportation of freight from one State to another but every link in that transportation, whether or not some of the links are entirely within one State. In Foster v. Davenport, 22 How. 244, it was held to extend to a steamboat employed as a lighter and towboat in the harbor of Mobile. In that case, Mr. Justice Nelson, speaking for the court, said, “. . . this steamboat was employed in aid of vessels engaged in the foreign or coastwise trade and commerce of the United States, either in the delivery of their cargoes, or in towing the vessels themselves to the port of Mobile. The character of the navigation and business in which it was employed cannot be distinguished from that in which the vessels it towed or unloaded were engaged. The lightering or towing was but the prolongation of the voyage of the vessels assisted to their port of destination." And in Harman v. Chicago, 147 U. S. 396, an ordinance of that city imposing a license tax for the privilege of navigating the Chicago River and its branches upon steam tugs was held to be unconstitutional as a burden and restraint upon interstate commerce, over which Congress has control. See also The Daniel Ball, 10 Wall. 557; Northern Pacific Railway v. Washington, 222 U. S. 370.

At the time of the plaintiff's accident the tug Hersey had run under the bow of the barge Helen, preparatory to towing it down to the flats. The captain of the Helen was on the wharf for the purpose of casting off the hawser; and the donkey-engine, which was used in heaving in the hawser, was started. At that time the purpose of the movements of the plaintiff and of the tug, was to reach and move an interstate vessel. See Louisville & Nashville Railroad v. Parker, 242 U. S. 13, 14. In North Carolina Railroad v. Zachary, 232 U. S. 248, it was held that acts of a locomotive fireman in oiling and preparing his engine for a trip to move freight in interstate commerce, although done prior to the actual coupling up of the interstate cars, are acts done while engaged in interstate commerce under the federal employers' liability act. It was said in St. Louis, San Francisco & Texas Railway v. Seale, 229 U. S. 156, 161, that interstate transportation is not ended by the arrival of the train at the terminal, "Whether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains or for unloading or delivering

freight, and this was as much a part of the interstate transportation as was the movement across the state line." And in New York Central & Hudson River Railroad v. Carr, 238 U. S. 260, it was held that a brakeman on an intrastate car in a train consisting of both intrastate and interstate cars who is engaged in cutting out the intrastate car so that the train may proceed on its interstate business, is while so doing engaged and employed in interstate commerce, within the federal employers' liability act. See also Pedersen v. Delaware, Lackawanna & Western Railroad, 229 U. S. 146; The Hazel Kirke, 25 Fed. Rep. 601; Erie Railroad v. Jacobus, 221 Fed. Rep. 335; S. C. 137 C. C. A. 151; Corbett v. Boston & Maine Railroad, 219 Mass. 351, 356; Marconi Wireless Telegraph Co. v. Commonwealth, 218 Mass. 558. We are of opinion that the towboat Hersey was "engaged in interstate . . . commerce," at the time when the plaintiff was injured, within the principle of these cases.

This conclusion renders it unnecessary to consider the further contention of the defendant that the Hersey was engaged in interstate commerce by reason of the fact that it was transporting a bundle of fish to the barge Helen where it was to be eaten by the crew of the barge on its trip to Virginia. See United States v. Colorado & Northwestern Railroad, 157 Fed. Rep. 342; Northern Pacific Railway v. Washington, 222 U. S. 370; United States v. Colorado & Northwestern Railroad, 85 C. C. A. 27.

The instant case is reported upon the stipulation that if the verdict for the defendant was properly ordered final judgment is to be entered for the defendant. As the plaintiff's sole claim was made under St. 1911, c. 751, and as that statute is not applicable to "masters of and seamen on vessels engaged in interstate or foreign commerce," for that reason and in accordance with the terms of the report the entry must be

Judgment for the defendant.

VOL. 227.

16

FRANCIS C. WELCH, trustee, vs. WILLIAM D. M. HOWARD & others.

Suffolk. March 19, 1917. - May 26, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Devise and Legacy, Time of vesting. Words, "Heirs at law.”

A provision in a will, that, "Upon the decease or marriage of my said wife and the decease of the last survivor of my said four children, my trustees shall divide and distribute all said trust property and estate among my heirs-atlaw, according to the statutes which shall then be in force," indicates an intention that the distribution shall be among those persons who would have been the testator's heirs at law according to existing statutes if he had died at the time of the death of the last survivor of his wife and children. An intention clearly manifested, in the will referred to above, to exclude the testator's widow from any participation in the income or principal of his estate in case of her remarriage, was held to be an indication that the testator did not use the phrase "heirs at law" literally to describe such heirs as of the time of his death and thus include his widow as one of them. In the interpretation of the will containing the provision above described, where the testator's wife and children were the testator's only heirs at law at the time he made his will and at the time of his death, the fact that the distribution of the residue was not to be made until the death of the last survivor of them unless his wife should remarry and then upon the death of the last survivor of his children, so that their interest as heirs at law never could vest in possession, justifies an inference that the testator did not intend the remainder to vest in them as his heirs at law but intended instead that such remainder should be distributed among those persons who would have been his heirs at law if he had died at the time of the death of the last survivor of his wife (if she did not remarry) and his children.

In the same case it was held that, under the provision quoted above directing that "my trustees shall divide and distribute all said trust property," and under a power contained in another article of the will giving the trustees power to "make, execute and deliver all deeds, leases and other instruments that may be proper in the execution of the trusts and powers herein conferred upon them,” the trustees held the real estate constituting a part of the trust property for the purpose of distribution by conveyance, and that it did not vest, without conveyance, immediately on the death of the last survivor of the testator's widow (who did not remarry) and his four children in the persons designated by the statute then in force.

BILL IN EQUITY, filed in the Supreme Judicial Court on November 27, 1916, by the sole trustee under the will of Nathaniel Whiting, late of Watertown, who died on November 18, 1871, for instructions, containing the prayers which are quoted in the opinion.

The will of Nathaniel Whiting was dated September 23, 1871. The fourth article of the will was as follows:

"Fourth: All the rest and residue of my property and estate, of every description, real, personal and mixed, of which I shall die seized, or to which I shall be entitled at the time of my decease, I give, devise and bequeath to John P. Healy, of Boston, in the County of Suffolk and Commonwealth aforesaid, my son, Arthur N. Whiting, and J. Franklin Fuller, of said Boston, in trust, nevertheless, that they shall prudently manage the same, and take the income thereof, and after paying therefrom all taxes and premiums for insurance thereon, all expenses for repairs upon the real estate, and all other expenses incident to the proper care, management and preservation of all the trust property and estate, and a reasonable compensation for their own services, they shall dispose of the net income remaining, so long as my said wife shall live and remain my widow, or either of my four children hereinafter named shall live, as follows, viz.: they shall pay to my brother, Timothy Whiting, one thousand dollars annually, by quarter-annual instalments, during his life, in such ways and manner as that all sums paid to him shall be used for his support and comfort, and not be liable for any debt or debts he may owe; and they shall pay to my nephew, Horatio Whiting, six hundred dollars annually, by quarter-annual instalments, during his life, in like ways and manner, and affording him a like protection-my purpose being in each case to provide the means for the support of my relative, and not to give money to his creditors. The residue of said net income shall be divided, quarter-annually, among my said wife and my four children, Adelaide M. Whiting, Arthur N. Whiting, Anna D. Whiting and Dwight Whiting, so long as my said wife shall live and remain my widow and all my said children shall live, equally, share and share alike. When my said wife shall die or be married, my trustees shall divide her said share of said income among my said children, or the survivors of them, and the issue of my deceased children, if any, by right of representation, equally share and share alike. When and as often as any one of my said children shall die, if the child so dying shall leave issue surviving, my trustees shall pay to such issue the share of said income which would be payable to the deceased child if living; if the child so dying shall leave

no issue surviving, my trustees shall pay the share of said income which would be payable to the deceased child if living, to my said wife, if living and unmarried, and the survivors of my said four children and the issue of my deceased children, if any, by right of representation, equally share and share alike; and if my said wife shall be dead or married, to the survivors of my said four children and the issue of my deceased children, if any, by right of representation, share and share alike.

"Upon the decease or marriage of my said wife and the decease of the last survivor of my said four children, my trustees shall divide and distribute all said trust property and estate among my heirs-at-law, according to the statutes which shall then be in force in said Commonwealth, regulating the distribution of intestate estates, unless my said brother and my said nephew, or either of them, shall then be living. If my said brother and my said nephew, or either of them, shall then be living, my trustees shall, before making said division and distribution among my heirs at law, reserve enough of the trust property or estate to secure to them respectively the full provision hereinbefore made for them."

Timothy Whiting died about 1873. Horatio Whiting also. died. Rebecca Whiting, the widow of Nathaniel Whiting, never remarried and died intestate on April 20, 1906, leaving as her heirs at law and next of kin her two children, Anna Dwight Howard and Dwight Whiting, and one grandchild, Ethel Whiting Otis, the daughter of Arthur N. Whiting.

The case came on to be heard by Pierce, J., who reserved it for determination by the full court.

B. Corneau, for the plaintiff, stated the case.

F. Rackemann & F. Brewster, for Gertrude H. Whitwell and others.

A. J. Selfridge, for William D. M. Howard and another.

Joseph Wentworth, for John K. Howard and another.

J. L. Hall, special administrator, and named as executor in pending will of Anna D. Howard.

J. C. Bassett, for Emily S. Perkins and others.

R. H. Gardiner, Jr., for Ethel W. Otis.

C. Hunneman, administrator de bonis non of Adelaide (Whiting) Fullerton.