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It is further alleged that, in pursuance of plied by a general averment that she was in the this understanding, said Mary Ann McKee in

exercise of due care when the accident occur

red. formed sundry persons there present that

3. A declaration in an actiou for injuries to the respondent was bidding on said estate

a servant which does not allege any breach of for this complainant, and that some of the duty in the master in failing to provide her a persons so informed ceased to bid against

safe place to work, or reasonably safe appli

ances to do the work, or show any occasion for the interest of the complainant on account

warning her as to the dangers of the work thereof, and that the estate was finally which she was ordered to do, since she was struck off to the respondent for the sum of perfectly familiar with the machinery by which $1,775, the same being less than the amount

she was injured, fails to show any negligence due on said mortgage.

on the part of defendant. The bill further alleges, in the sixth para Trespass on the case by Agnes Russell graph thereof, that the amount paid by the

against the Riverside Worsted Mills. Heard respondent for said estate was less than the

on demurrer to the fourth count of the decactual value thereof, and that a larger sum

laration. Demurrer sustained. would have been obtained for the same had

Argued before STINESS, C. J., and TILit not been for the representations made by

LINGHAST and ROGERS, JJ. said Mary Ann McKee that the respondent Clarence A. Aldrich and B. W. Grim, for was purchasing said estate for the complain. plaintiff. Walter B. Vincent, for defendant. ant. The complainant also alleges that the respondent well knew the doings and repre TILLINGHAST, J. The fourth count in septations of said Mary Ann McKee in the

the plaintiff's declaration sets out that the premises, and that he is now contriving to defendant was operating a certain swiftkeep the complainant out of said property, running and dangerous machine in its mill, and deprive her thereof, and is also endeav where the plaintiff was employed, to wit, a oring to take advantage of her on account spooler, with certain cogwheels and gears of the low figure for which the estate was attached thereto; that the plaintiff was under sold.

the direction and control of the defendant in In view of these allegations, we think it tending said machine, and was subject to the appears that the respondent has been enabled

orders of the section hand; that, while she to get the land in question by virtue of the was so employed, certain water was acciunderstanding aforesaid, which amounted to dentally overturned upon the floor under and a promise on his part to purchase it for the near said machine, and that the plaintiff was complainant, and that the latter has parted then and there called from her regular emwith an interest in the land upon the faith ployment by said section hand, to whose of such promise. And, tbis being so, the re orders and directions she was subject, and spondent was trustee for the complainant in directed to wipe up said water from the the transaction, and the complainant is there floor; that, being suddenly and unexpectedly fore entitled, in the absence of any denial of called upon and directed to wij

up said said allegations, to the relief prayed for. water, in loud and threatening language and

As the case falls within the principles adopt- signs, she bad no opportunity to examine and ed by this court in Jenckes v. Cook, 9 R. I. estimate the danger to which she would be 520. Aborn v. Padelford, 17 R. I. 143, 20 Atl. subjected in obeying said direction of the 297, and Place v. Briggs, 20 R. I. 540, 40 section hand, and that neither he, nor any Atl. 419, there is no occasion for any further other person, warned her of the danger to consideration thereof.

which she would be exposed in obeying said The demurrer is overruled.

order; that she proceeded to comply with said order, and, while in the exercise of due

care in attempting to wipe up said water (24 R. I. 591)

under and near said machine, her left hand RUSSELL V. RIVERSIDE WORSTED was suddenly caught and entangled therein, MILLS.

and so badly crushed that it had to be am(Supreme Court of Rhode Island. Jan. 23,

putated. To this count the defendant has 1903.)

demurred on the ground that, so far as apMASTER-INJURIES TO SERVANT-DANGEROUS

pears therein, the defendant was not negliMACHINERY - KNOWLEDGE OF SERVANT gent in the premises. We think the demurPLEADING - ALLEGATION OF DUE CARE

rer must be sustained. NEGLIGENCE OF MASTER.

The plaintiff does not allege that the ma1. A servant who was engaged in operating a dangerous machine, with which she was

chine by which she was injured was defectfamiliar, and which was not defective. cannot ive in any way, or that she did not know recover for an injury received by having her that it was dangerous. Indeed, she alleges band caught in the wheels of such machine

that it was a swift-running and dangerous when suddenly ordered by a section hand, in threatening language, to wipe up the floor near

machine, and that it had certain cogwheels the machine.

and gears attached thereto.

It also appears 2. The defect in a declaration in an action that it was the machine which she was emfor injuries to a servant, in failing to allegeployed to tend; and hence it must be asany circumstances whereby plaintiff was prevented from observing the danger to which she

sumed that she was familiar with its operawas exposed in doing certain work, is not sup tion, and also familiar with such parts there.

of, whether cogwheels, gears, or other ap ion that it is well taken. In order for the purtenances, as were open to her observation. plaintiff to state a case of negligence against She must have known that, if her hands the defendant, it must be made to appear came in contact with said cogwheels and that the defendant owed her some legal duty gears, she was liable to be seriously injured, which it has failed to discharge, whereby and hence that for her own protection she she has suffered injury. That it owed her must take care not to expose herself to in the duty of providing a reasonably safe place jury by coming in contact with such parts in which to do her work, and of furnishing of said machine. See Morancy v. Hennessey, reasonably safe appliances for the doing of 24 R. I. 205, 52 Atl. 1021.

said work, is undoubtedly true. But it is not The mere fact that she was called from alleged in said count that the defendant her regular employment by the section hand, failed to discharge its duty in either of these and directed to wipe up water from the floor regards. That the defendant also owed to near to and underneath said machine, did the plaintiff the further duty of instructing not excuse her from exercising proper care her in the discharge of her duties, and parto protect herself from injury while doing ticularly as to the dangers incident thereto, said work. Nor do we see that it is mate if the dangers were of such a character as rial that she was suddenly and unexpectedly not to be obvious to a person of ordinary inordered to do said work, or that the order telligence, is also true. But so far as apwas couched in threatening language. That pears in the count in question, there was no she could see the machine about which she occasion for any instruction to be given, as was at work, and knew that it was danger- the danger connected with the doing of the ous to put her hand in close proximity to particular work which the plaintiff was orsaid cogwheels and gears, or other parts of dered to do was just as obvious to her as it said machine which were in rapid motion, was to the defendant. She was simply ormust be taken for granted, for she does not dered to wipe up some water which had been allege that she was lacking in common sense. accidentally spilled upon the floor near to her

We think it necessarily follows, therefore, machine. And there was no occasion for that the accident must have been caused by any one to tell her that if, in doing this simher own carelessness. If the plaintiff had ple work, she should put her hands into said been suddenly ordered to work on some ma machine, she would probably get hurt. We chine with which she was not familiar, and fail to see, therefore, that the count in questhereby been subjected to a risk which she tion charges the defendant with any actiondid not appreciate, and of which she was not able negligence. Whether, in case the plaininformed or cautioned, the case would have tiff had alleged in said count, as she does in been different, and would then fall within the the first one, that the defendant was guilty rule laid down by this court in Mann v. of negligence in failing to provide the gearOriental Print Works, 11 R. I. 152, cited by ing of said machine with proper safeguards, plaintiff's counsel, and the plaintiff would be as required by Gen. Laws 1896, c. 68, $ 6, a entitled to go to the jury on the questions prima facie case would have been stated, we involved. But the case stated is clearly dis are not now called upon to decide. tinguishable from that one, and hence is not The demurrer to the t'ourth count is suscontrolled by it.

tained, and the case remanded for further Again, no peculiar circumstances are al proceedings. leged to have existed, whereby the plaintiff was prevented from observing the danger to

(24 R. I. 587) which she was exposed in wiping up the water from the floor underneath or in close

FLAHERTY v. O'CONNOR. proximity to said machine. And hence the (Supreme Court of Rhode Island. Jan. 23, averment that she was in the exercise of due

1903.) care when the accident happened is over

TRUSTS-CREATION-EVIDENCE-GIFTS INTER come and virtually contradicted by the alle

VIVOS-REVOCATION. gations pertaining to her surroundings. And 1. Where evidence to prove a trust of ceras we held in the recent case of Baumler v. tain money delivered by plaintiff to defendant Narragansett Brewing Co., 23 R. I. 430, 50

was conflicting, and some witnesses testified Atl. 841, the mere fact that a plaintiff alleg

that plaintiff, on delivering the money, told de.

fendant to pay the bills incident to a decedent's es in his declaration that he was in the ex death, and use the balance for the interest of ercise of due care does not have the effect the children, and others stated that the balof rendering it proof against a demurrer, if

ance was "to be divided between the young ones,

and placed to their credit in the bank, this allegation is clearly inconsistent with

and others tbat defendant was to divide the the other allegations contained in the decla rest with the children, and still another that ration. See, also, Corning Steel Co. v. Pohl

he was to do whatever he wished with the balplotz (Ind. App.) 64 N. E. 476.

ance, it was not sufficiently definite to estab

lish a valid trust. Coming now to speak more particularly of 2. Where plaintiff delivered money to defendthe specific ground relied on in the demurrer, ant with which to pay the funeral expenses of namely, that, so far as appears in said count,

her deceased daughter, aud to apply the balance

to the benefit of others, and, before such ap. the defendant was not negligent in the prein

plication was made, plaintiff demanded a ri. ises, we have to say that we are of the opin turn of the money, such demand revoked de

fendant's authority as plaintiff's agent to fur but not necessarily for all the children or for ther apply the fund to the purposes of the gift, and rendered him liable for the return of

any particular child; for the defendant might the fund to plaintiff.

think that those earning money did not need

it, and that “the interests of the children" Action by Mary Flaherty against Jeremiah

required its expenditure for the younger J. O'Connor. A judgment was rendered for

ones, who were dependent. Mr. Quigley's defendant, and plaintiff applies for a new statement was: To “be divided between the trial. Granted.

young ones, and placed to their credit in the Argued before STINESS, C. J., and TIL

bank.” This would be a definite trust, if we LINGHAST and ROGERS, JJ.

take "young ones" to mean all the children; C. J. Farnsworth and Joseph A. Hughes, but he is the only one who states it in this for plaintiff. Charles E. Gorman, for de way. Mr. Kenney and Miss O'Connor said: fendant.

"Divide the rest with the children." This

would be a delivery of the money to the deSTINESS, C. J. The plaintiff received the fendant to be delivered to others, the real sum of $439 upon a policy of insurance on donees. Mrs. Patnaud said: "Pay the bills, the life of a daughter, made payable to the and you can do whatever you wish with the plaintiff. The plaintiff handed the money rest of it." This would amount to an absoover to the defendant, as claimed on her side, lute gift of the balance to the defendant. to pay the funeral expenses and bills of the From this conflict of testimony among the dedaughter, and to return the balance to her. fendant's own witnesses, it does not appear The defendant claims that she gave the mon that there is any trust which could be eney to him to pay the bills, and to use the rest forced by any one or more of the children. for the interest of the daughter's children. A trust should be sufficiently definite to be Before he had completed the payment of the capable of enforcement. Trusts are passive bills, the plaintiff demanded the balance in and active. In a passive or naked trust the his hands, which he refused to pay to her, trustee simply holds property for another, and thereupon she brought this suit. The with no duties to perform. In such a case jury gave a verdict for the defendant.

the law regulates the trust by giving the The plaintiff requested the court to instruct whole equitable title to the cestui que trust, the jury (1) that the plaintiff had the right to and enabling him to call in the legal title. revoke the gift at any time up to the time of A common illustration of this is the deposit delivery of the money or the completion of of money in a bank in the name of one as the direction of the plaintiff as to the dis trustee for another. An active trust is where position of the same; (2) that no trust was special and particular duties are pointed out, created under the circumstances of the trans to be performed by the trustee. 1 Perry on action; (3) that, to make a gift inter vivos, Trusts (5th Ed.) $ 18; Bouv. Law Dict. tit. there must bave been a delivery of the mon “Trusts." The testimony, as a whole, does ey to the children, and that the defendant's not clearly show a case of either one of duty was to hand it over to her on demand; these classes of trusts. With no issue to deand (4) that the defendant was the agent of termine the fact or the terms of a trust, the the plaintiff, whose agency could be revoked request of the plaintiff to that effect should before the completion of what he was called have been allowed. upon to do. The requests were denied, and If the defendant has not shown himself to exceptions taken.

be a trustee, he must have been an agent of Nine persons were present when the money the plaintiff. In such cases, before the exewas turned over. Of these, three-the plaintiff cution of the agent's authority by delivery, and Mr. and Mrs. Maher, the plaintiff's daugh the donor may revoke the authority and reter and her husband--testified that the bal sume possession of the property, thus defeatance was to be returned to the plaintiff with ing the gift. The right of revocation in a the receipts for bills paid. The defendant case of agency and a gift inter vivos is the and the other five state the directions differ

same, since a gift is not complete until deently from the plaintiff's witnesses, and in | livery. In Sessions v. Moseley, 4 Cush. 87, most cases differently from each other. Shaw, C. J., said: “The difference between

Gifts may be regarded as of five kinds: a gift inter vivos and a gift causa mortis is (1) Absolute to the donee; (2) to one for de this: The former is absolute, irrevocable, livery to another; (3) to one as a trustee; (4) and complete, whether the donor die or not. inter vivos; and (5) causa mortis. There is The subject of it must therefore be delivered no claim in this case that there was an abso to the donee or to some other person, with lute gift to the defendant, nor that there was his consent, for his use, and must be accepta gift causa mortis.

ed by him. Grover v. Grover, 24 Pick. 261, We will first consider whether it was a 35 Am. Dec. 319. If, therefore, it be deliver gift in trust. The defendant testified that ed to a third person, with authority to dethe words were, as he understood them, liver it to the donee, this depositary, until the "Take that money, and pay the bills, and use authority is executed by an actual delivery it for the interest of the children.” Mrs. to and acceptance by the donee, is the agrat Casey states it in the same way. These of the donor, who may revoke the authoriy words would constitute a discretionary trust, and take back the gift; and therefore, if the

delivery do not take place in the donee's life son, and left it with said Charles P. Moies, time, the authority is revoked by his death; with direction that in case anything happened the property does not pass, but remains in to her (she meaning thereby, as Moies underthe donor, and goes to his executor or admin stood it, that in case she should die), he istrator." See, also, Thompson y. Dorsey, 4 should then deliver the deed to her daughMd. Ch. 149; Wells v. Collins (Wis.) 43 N. ter, said Mary A. Johnson. He did not unW. 160, 5 L. R. A. 531; Pearson v. Pearson, derstand, however, from the instructions giv7 Johns. 26; Dicheschied v. Exchange Bank, en him, that the grantor intended by said acts 28 W. Va. 340. In this last case the court to place the deed beyond her control, but, on corrects an apparent misprint in the above the contrary, he understood that she retained quotation from Sessions v. Moseley by say the right to recall the deed at any time, and ing: "If the delivery does not take place also that she retained the right to sell and during the donor's lifetime, the authority is dispose of the property thereafterwards if revoked by his death; the property does not she saw fit. In short, the substance of Moies' pass, but remains in the donor, and goes to understanding, from the instructions given his executor or administrator."

him, was that the deed was left with him A gift causa mortis is not intended to take subject to the control of the grantor during effect until after death of the donor. There her life, and that in case of her death, withhaving been no delivery in this case to any out having disposed of the property, he was one prior to the demand by the plaintiff, the to deliver the deed to the grantee named there gift was not complete, and she had the right in. The grantor continued to exercise domin. to revoke it. Woonsocket Institution v. Hef ion over said real estate up to the time of her fernan, 20 R. I. 308, 38 Atl. 949.

death, which occurred on the 13th day of NoNew trial granted.

vember, 1901. She advertised it for sale, and in other ways attempted to effect a sale

thereof; she paid the taxes, collected the (24 R. I. 571)

rents, and paid the interest on the mortgage JOHNSON et al. v. JOHNSON.

thereon, and generally treated the estate as (Supreme Court of Rhode Island. Jan. 5,

her absolute property. After her death said 1903.)

deed was delivered to the grantee by Moies, DEEDS-DEPOSIT WITH THIRD PERSON-DE

and by her caused to be recorded in the reg. LIVERY-EFFECT AS WILL.

istry of deeds in Pawtucket. And the com1. Grantor executed a deed to defendant, and plainants now seek by this bill to have said left it with M., with directions that, in case

deed set aside and declared void and of no anything happened to grantor, M. should deliver the deed to defendant. M. testified that he effect, on the ground that no delivery tnereof understood that the grantor intended to retain was ever effected by the grantor. the right to recall it, and the right to sell the In view of the facts aforesaid, we are of property before her death. The grantor thereafter advertised the property for sale, collected

the opinion that said deed was ineffectual to the rents, and paid interest and taxes. After pass any title to the estate. In order to congrantor's death, M. delivered the deed to de vey title to real estate, it is necessary that fendant. Held, that the deed was void for want

the deed thereof shall be delivered to the of a sufficient delivery, in the grantor's lifetime.

grantee or to some one for his use. And 2. Where a deed was deposited with a third the ordinary test of delivery is: Did the person to be delivered to the grantee on the grantor, by his acts or words, or both, intend grantor's death, but was not executed with

to divest himself of the title to the estate the formalities required for the execution of a will, it could not operate as a will.

described in the deed? If so, the deed is de

livered. But if not, there is no delivery; and Bill by Peter Johnson and others against Mary A. Johnson to set aside a deed. De

hence no title passes. See Am. & Eng. Ency. cree for complainants.

Law, vol. 9 (2d Ed.) 154-158; Brown v. Argued before STINESS, C. J., and TIL

Brown, 66 Me. 316. In order to constitute LINGHAST and ROGERS, JJ.

a delivery, the grantor must absolutely part

with the possession and control of the instruClaude J. Farnsworth, for complainants.

ment. Younge v. Guilbeau, 3 Wall. 636, 18 Edward W. Blodgett, for respondent.

L. Ed. 262; Hawkes v. Pike, 105 Mass. 562,

7 Am. Rep. 554. TILLINGHAST, J. The only question pre That a deed may be effectual to convey tisented for our decision by the bill, answer, tle, although delivered to a third person to and proof in this case is whether the deed un hold until the grantor's death, and then to der which the respondent claims title to the deliver it to the grantee, there can be no real estate described in the bill was so depos doubt. But, in order to make such a delivited or left with the witness Charles P. Moies ery valid, the deed must be left with the deby the grantor during her lifetime as to positary without any reservation on the part constitute an absolute delivery thereof for of the grantor, either express or implied, of the use and benefit of the grantee.

the right to recall it or otherwise to control The material facts in the case are these:

its use.

Walter v. Way, 170 III. 96, 48 N. E. On May 9, 1899, Mary Johnson made and 421; Foster v. Mansfield, 3 Metc. (Mass.) 412, executed a quitclaim deed of the premises 37 Am. Dec. 154. In other words, in order to referred to, to the respondent, Mary A. John make a delivery of a deed valid when it is

OW.

of the power

and control over the deed by the **

made to a third person for the benefit of the would have taken if living, and if no descendgrantee, such delivery must be an absolute ants of mine survive my said wife, then said one on the part of the grantor; that is, he

property shall belong and be delivered" by my

executors to the residuary legatees named in must divest himself of any right of future the succeeding clause of the will. Held, that control thereof. And, if such control is re the interest of testator's children did not vest tained by the grantor, no estate passes.

until the termination of the widow's life estate,

and hence a child dying without issue before The law relating to delivery of a deed is

that time had no interest in the land which he well stated in Prutsman v. Baker, 30 Wis. could devise by will. 614, 11 Am. Rep. 592, as follows: "To con

2. On the death of the life tenant the real stitute delivery good for any purpose, the

estate so devised passed in equal moieties to

testator's two children who survived the widgrantor must divest himself of all power and dominion over the deed. To do this he must part with the possession of the deed, and all

Application by Ellen S. Melcher and others right and authority to control it, either finally

for the construction of the will of Paran and forever, as where it is given over to the

Stevens, deceased, on a case stated. grantee himself, or to some person for him,

Argued before STINESS, C. J., and TILwhich is called an absolute delivery; or, oth

LINGHAST and ROGERS, JJ. erwise, be must part with all present or tem Samuel R. Honey, George Zabriskie, and porary right of possession and control until John S. Melcher, for Ellen S. Melcher. the happening of some future event or the Charles H. Koehne, Jr., and John A. Garver, performance of some future condition, upon for trust companies. Robert M. Franklin, the happening or not happening or perform- for Alfred Wills. Andrew Jameson, Matance or nonperformance of which his right thews Duncan, and John W. Sterling, for of possession may return, and his dominion trustees. and power over the deed be restored; in which case the delivery is said to be contingent or STINESS, C. J. The case stated for an conditional. An essential, characteristic, and opinion sets forth that title to real estate in indispensable feature of every delivery, Newport is involved under a clause of the whether absolute or conditional, is that there will of Paran Stevens, which gave said real

estate to his wife for life, and then added:

"Upon the decease of my said wife, the propgrantor for the benefit of the grantee, at the erty by this and the preceding clause detime of delivery." Porter 1. Woodhouse, 59 vised shall belong to my children, the deConn. 568, 22 Atl. 299, 13 L. R. A. 64, 21 Am.

scendants of any deceased child to take the St. Rep. 131; Baker v. Haskell, 47 N. H. 479, share their parent would have taken if living, 93 Am. Dec. 455.

and if no descendants of mine survive my In the case at bar the evidence shows that, said wife, then said property shall belong and while there was a parting with the manual be delivered over by my executors to the possession of the deed by the grantor, she did

same persons named as residuary legatees, not part with the control thereof; and hence

in case of such failure of descendants, in the a very essential element of delivery was lack next clause of this will and in the same proing. Her intended disposition of the property portions." was evidently of a testamentary character.

Paran Stevens died in 1872, leaving Mari"In case she died," as Moies testifies, "she

etta Stevens, his widow, and three childrenwanted the property to go that way.” But Mrs. Melcher, Mrs. Paget, and Henry L. an instrument which is intended to operate Stevens. Henry L. Stevens died without isas a will, without being executed in accord

sue in 1885, before the termination of his ance with the provisions of the statute relat

mother's life estate, leaving a will which ing thereto (Gen. Laws R. I. c. 203), cannot

gave one-half of his property to her, and onebe allowed to have the effect of a will. See

half in trust for his sister, Mrs. Paget. Providence Institution for Savings v. Car Mrs. Stevens, the life tenant, died in 1895, penter, 18 R. I. 287, 27 Atl. 337, and Coulter

leaving a will giving her property in trust v. Shelmadine (Pa.) 53 Atl. 638.

for Mrs Paget. For the reasons above given, the deed in

The questions presented are whether the question must be set aside and declared null

devisees of Henry L. Stevens took an and void and of no effect. Decree accord divided third of the real estate in ques. ingly.

tion, and what are the respective interests

of the parties therein? The answers to these (24 R. I. 575)

questions depend upon the decision of the In re MELCHER et al.

effect of the will of Paran Stevens as to the (Supreme Court of Rhode Island. Jan. 7,

interest taken by Henry L. Stevens there1903.)

under. On the part of Mrs. Paget it is claimWILLS-CONSTRUCTION-VESTING OF REMAIN

ed that he took a vested interest, which passDER-DEVISES.

ed under his will; and on the part of Mrs. 1. Testator devised real estate to his wife Melcher, that the estate did not vest in the for life, and added, "Upon the decease of my children upon the testator's death, but if it said wife, the property

* devised shall • belong to my children, the descendants of any

did, it was only a vesting defeasible in redeceased child to take the share their parent spect to any child upon the death of that

un

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