child prior to the termination of the life estate, whether with or without issue, in favor of the issue, if any; but, if none, in favor of the surviving children of the testator.

We quite agree with the counsel for Mrs. Paget that the legal effect of the provisions of a will, plainly expressed, must prevail over an implied intention. Chapin v. Hill, 1 R. I. 446; Perry v. Hunter, 2 R. I. 80; Derby v. Derby, 4 R. I. 414; Grant v. Carpenter, 8 R. I. 36. The first inquiry, therefore, is the legal effect of the terms of the will. This involves three things-the time of taking, the persons to receive, and the quantity of the estate devised. Upon these points we think that the will is explicit. The time when the interests of the children or their descendants were to attach was "upon the decease of my said wife." That is the focal point. That was the time when the interests were to be determined. The persons who were then to receive the property were the living children or their descendants, per stripes. The persons, therefore, who were to take, were uncertain. It could not be known which, if any, of them would be alive to take an interest in the estate. If one or more of the children did not live, the estate was not to go to their heirs, as heirs, nor to their assigns, but to certain described persons. For example, had Henry L. Stevens left children, a third interest would have gone to them, not as heirs of their father, but as devisees under the will. In this respect the will differs from that in Loring v. Arnold, 15 R. I. 428, 8 Atl. 335, where the remainder to A., B., and C., "their heirs and assigns," was absolute as to persons, and contingent only upon the death of the first devisee dying without leaving children. Hence the remainder was descendible, and so devisable.

The main contention, however, is upon the third element of the devise the resultant quantity of the estate devised. On the part of Mrs. Paget, who claims under the will of Henry L. Stevens, it is urged that, by the terms of the will in question, said Henry took a vested estate, subject to be divested by the two contingencies (1) of his death before the life tenant, leaving issue him surviving; (2) the death of all issue of the testator before that of the life tenant. As neither of these contingencies happened, it is claimed that the estate was in him unimpaired. On the part of Mrs. Melcher it is claimed that the remainder was a contingent remainder, taking effect at the death of the life tenant, and so giving no interest to said Henry, prior thereto, which was either descendible or devisable. Both views have been ably and learnedly presented.

Cases upon the construction of wills and upon vested and contingent remainders have been too numerous and conflicting for an attempt to review or to reconcile them. Indeed, the task would be well-nigh impossible. In view of the fact that the case involves

only title to realty in this state, and that the law applicable to it is settled by decisions of this court, we will confine our attention to such decisions. In Watson v. Woods, 3 R. I. 226, the devise was to a daughter, Mary, for life, remainder after her decease to her children and their issue; but if no issue, or in case of a subsequent failure of issue, then to other children of the testator. The terms of the gift were the same as in this case. It was held that it was the testator's intent to pass the estate to the descendants of Mary as long as there were any in being, and that until her decease her children could have no vested interest. In re ferring to the devise "after the decease of my said daughter," Brayton, J., said: "That language evidently contemplates the estates vesting at that time in the descendants of his daughter, such of them as were then living, and he is now limiting the estate which they take to the issue of their bodies, respectively." The counsel for Mrs. Paget suggests a distinction in the use of the word "after" the death in that case, instead of "upon" the death, as in this case. We are unable to see force in the distinction, if there be one. We do not see that the use of either word imports a different legal effect from the other. "Upon" or "on" the death means at the time of; and such a reference to the devolution of an estate points as clearly to the time of the death as the word "after." Certainly "upon" does not imply an estate before the death. The case was decided by the court, and not, as counsel assumes, by a single judge. Brown v. Williams, 5 R. I. 309, construed a devise similar to the one before us, upon a fuller examination of the law. The devise was to trustees for the life of a daughter, Mary, with remainder in fee to her issue, and, if none, to the children of another daughter, Ann. A son of Ann Brown died during the life of Mary, leaving a will devising his interest in the estate to his wife, who brought the bill for partition between herself and the surviving children of Ann Brown. Counsel for these children took the point that, as there was a contingent remainder in fee between the life estate and the second contingency, the latter was not vested. The court, however, based its decision upon a broader ground. Admitting that, as contingent and executory estates will descend to an heir, so they may be disposed of by will, the language of Lord Mansfield in Noden v. Griffiths, 1 W. Bl. 605, was quoted: "In all contingent, springing, and executory uses, where the person to take is certain, so that the same are descendible, they are de visable; these being convertible terms." Ames, C. J., added: "It will be noticed that the qualification is 'where the person who is to take is certain'; for if the contingency is to decide who is to be the object of the contingent limitation as the person or of the persons to or amongst whom the contingent or. future interest is directed, as it cannot be

determined in whom the interest is, until the contingency happens, no one can claim, before the contingency decides the matter, that any interest is vested in him to descend from, and hence to be transferred or devised by him." He also said: "The issue of children living at the determination of the life estate were certainly to take the share which their parents, if living, would have taken, as purchasers; and such an interest in them seems to us utterly incompatible with a right on the part of the parent to alienate his share, which would follow the vesting of any interest in the children pending the life of Mary. The issue were to take the shares which their parents, if living, would have taken,' which strongly implies that their parents were to take nothing, unless living at the death of Mary." The same words appear in the will before us. Judge Ames added: "Although it is a general rule that contingent interests, as well as vested interests, pass to the real and personal representatives of the person entitled, so as to entitle such representatives to them when the contingencies happen, it is an equally well ascertained exception to the rule that the contingent devisee has no such title to pass to his representatives, and none, therefore, to devise or bequeath, where the contingency is such that his own existence at some particular future time is to determine whether any interest is to take effect in him or not." Fear. Rem. 364, note "e," 365, 370, 371; 1 Jarm. on Wills (2d Am. Ed.) 653. In Daboll v. Field, 9 R. I. 266, the words of the will were somewhat different. There the devise was to nephews and nieces, their heirs and assigns, "provided they all survive me, if not, to the survivors." None of them survived the testatrix, and it was held that they took no estate, and that, as to that devise, she died intestate; the words "heirs and assigns" being used as words of limitation of the estate in case of a taking, and not to denote substituted devisees. In Bailey v. Hoppin, 12 R. I. 560, there was a deed in trust for life, remainder to children who should be living at the decease of the survivor of grantor or wife, and to such issue then living of deceased children. The question was whether the equitable remainders were vested or contingent, and they were held to be contingent. Durfee, C. J., said: "They were limited, after the death of the grantor and his wife, not to their six children, but only to such of them as should then be living, and to the issue of such of them as should be dead. It was uncertain at the creation of the trust, and it continued to be uncertain during the life of the surviving parent, who, if any, of the children would survive." That is exactly this case. The intervention of an express trust estate is not significant, since equitable interests pass under the same rules that apply to legal estates. R. I. Hospital Trust Co. v. Harris, 20 R. I. 408, 39 Atl. 750, is to the same effect. See, also, Ross v. Net

tleton, 24 R. I. 124, 52 Atl. 676. The cases in this state relied on by the counsel for Mrs. Paget are quite different from the case at bar. In Staples v. De Wolf, 8 R. I. 74, the devise was to children and their heirs-an absolute estate, with only a postponement of the time of enjoyment. In that case the interest was held to be vested. Rogers v. Rogers, 11 R. I. 38, was in similar terms. So, also, Grosvenor v. Bowen, 15 R. I. 549, 10 Atl. 589. Spencer v. Greene, 17 R. I. 727, 24 Atl. 742, was an application of the well-settled rule that when futurity is not annexed to the substance of the gift, but only to the time of payment, the right vests immediately. In that case the uncertainty was the death of a nephew. The remainder, the death happening, was held to be vested; the gift being absolute to the children of the sister of the testatrix, because the persons who were to take were certain. The case involved personal estate only. In all of these latter cases there was no remainder over. We think that the decisions we have quoted are conclusive of the case at bar.

We therefore give as our opinion (1) that the devisees of Henry L. Stevens took no interest in the real estate in question; (2) that said real estate belongs in equal moieties to Mrs. Melcher and to the trustees under the antenuptial settlement of Mrs. Paget. Decree accordingly.

(24 R. I. 583)

PECK v. WILLIAMS. (Supreme Court of Rhode Island. Jan. 20, 1903.)

DOGS-BITING PERSON IN CART ON STREET. 1. Under Gen. Laws 1896, c. 111, § 3, providing that, if a dog bite a person traveling the highway, the owner shall be liable, without proof that he knew that the dog was accustomed to do such damage, it is no defense that the person was committing a trespass by climbing onto the cart of the dog's owner, though it would be if he willfully provoked the dog, and thereby caused it to bite him.

2. A dog in the owner's cart in a street is out of the owner's inclosure, within Gen. Laws 1896, c. 111, § 3, providing that if a dog bites a person while traveling the highway, or out of the inclosure of the dog's owner, the owner shall be liable.

Action by Forrest A. Peck, pro ami, against Walter A. Williams. Plaintiff demurs to a plea. Demurrer sustained.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Wm. M. P. Bowen, for plaintiff. Page & Page & Cushing, for defendant.

TILLINGHAST, J. This is an action of trespass, and is brought to recover damages for injuries alleged to have been sustained by the plaintiff from the bite of a dog while the plaintiff was traveling upon a highway in the city of Providence. The action is based upon Gen. Laws 1896, R. I. c. 111, § 3, which provides that "if any dog * shall as

sault or bite or otherwise injure any person while traveling the highway, or out of the enclosure of the owner or keeper of such dog, the owner or keeper of such dog shall be liable to the person aggrieved, as aforesaid, for all damage sustained, to be recovered in an action of trespass on the case, or in an action of trespass, with costs of suit, and it shall not be necessary, in order to sustain any such action, to prove that the owner or keeper of such dog knew that such dog was accustomed to do such damage."

* * *

In addition to the plea of the general issue, the defendant has filed a special plea in bar, in which he sets up that the plaintiff ought not to have or maintain his action against him, because, he says that before and at the time when, etc., in the declaration mentioned, a certain cart or vehicle of the defendant was being driven along a certain public highway in the city of Providence, in charge of a servant of the defendant, and that the said dog was then and there in and upon said vehicle. And the defendant avers that the said Forrest A. Peck then and there, without the invitation, leave, or license of the defendant, either by himself or through his servant, suddenly and without right, took hold of and climbed up upon the rear part of said vehicle, whereupon the said dog attacked and assaulted him as charged, he being then and there a trespasser. And the defendant avers that he was in the exercise of due care in the management of said dog. Wherefore he prays judgment if the said plaintiff ought to have or maintain his aforesaid action against him. To this plea the plaintiff has demurred on the ground that the statute upon which the action is based makes the owner or keeper of any dog absolutely liable to any person who shall be assaulted or otherwise injured while such person is traveling on the highway or is out of the inclosure of the owner or keeper of such dog.

The only question raised by the demurrer is whether, under the statute aforesaid, the plaintiff can recover, notwithstanding the fact that he was a trespasser at the time | when he was attacked and bitten by defendant's dog. Counsel for plaintiff contends that, the statute being absolute in its terms, and containing no exception whatsoever, the defense set up by said special plea is of no avail, and hence that the plea should be overruled. Counsel for defendant, while admitting that defendant is liable, under the statute, regardless of any question of negligence on his part in the care and management of said dog, claims that the defendant is not liable if the plaintiff by his negligence provoked the dog, or if, by the exercise of ordinary care, he could have prevented the action of said dog.

At the common law the mere fact that the plaintiff was a trespasser at the time of being bitten by a dog was no defense to an action for the recovery of damages for the

injury sustained, if the dog was vicious, to the knowledge of the owner or keeper thereof. Loomis v. Terry, 17 Wend. 496, 31 Am. Dec. 306; Sherfey v. Bartley, 36 Tenn. 58, 67 Am. Dec. 597; Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Meibus V. Dodge, 38 Wis. 300, 20 Am. Rep. 6. See, also, Plumley v. Birge, 124 Mass. 57, 26 Am. Rep. 645. But in order to state a case against the owner, the plaintiff was called upon to allege what was technically called the "scienter" (that is, knowledge of the dog's vicious propensity), and also to prove the same at the trial. And we think it is quite evident that the statute now in question originated in view of the well-known fact that personal injury was frequently sustained from dogs, for which the injured party had no adequate remedy, by reason of the practical difficulty of proving the owner's knowledge of the vicious character of his dog. And therefore it was thought best to make the owner or keeper liable for the injuries caused by his dog, regardless of the question as to whether he actually had knowledge of its vicious character. Kelly v. Alderson, 19 R. I. 544, 37 Atl. 12. See, also, Newton v. Gordon, 72 Mich. 642, 40 N. W. 921. As the statute thus enlarges the common-law liability of the owner or keeper of the dog so as to include damages sustained by his misconduct by any person while traveling on the highway, or while out of the inclosure of the owner or keeper of the dog, whether the dog is vicious or not, we are of the opinion that the mere technical trespass set up in the special plea aforesaid is not a bar to the action. The case of Quimby v. Woodbury, 63 N. H. 370, which is mainly relied on by defendant's counsel, is not in point, for the reason that the statute upon which that action was based, while it allows any person who has been injured by a dog not owned or kept by him to recover of the person who owns or keeps the dog, yet it expressly excepts from its operation those cases where the injury has been occasioned to the party suffering the damage while engaged in the commission of a trespass or other tort. As our statute contains no such exception, the defense set up by the special plea aforesaid is not available.

If it be claimed that, under the facts set up in the plea, the dog, being in the defendant's cart at the time the plaintiff was attacked by him, was not "out of the enclosure of the owner," within the meaning of the statute, we reply that we do not feel warranted in construing the term "enclosure" as including the cart of the defendant when on the highway. The word "enclosure," in its ordinary legal signification, imports land inclosed with something more than the imaginary boundary line; that is, by some visible or tangible obstruction, such as a fence, hedge, ditch, or an equivalent object, for the protection of the premises against encroachment. Thus, in Taylor v. Welbey, 36 Wis.

42, the court held that the word "enclosure," used in the statute of that state relating to damage done by cattle, means a tract of land surrounded by an actual fence, together with such fence, "and does not include that part of a public highway of which the fee belongs to the owner of such adjoining inclosure." In Porter v. Aldrich, 39 Vt. 326, the term is defined substantially in the same manner. We therefore feel constrained to limit the meaning of said term as thus indicated.

If, however, it shall be made to appear that the plaintiff willfully provoked the dog, and thereby caused him to attack and bite him, we think he must be considered to have purposely or recklessly brought the injury on himself, and hence should be left to bear it, although the owner of the dog was in the wrong in allowing him to be on the highway, for in such a case it cannot be said, in a legal sense, that the keeping of the animal produced the injury. Muller v. McKesson, 73 N. Y. 195, 29 Am. Rep. 123; Fake v. Addicks, 45 Minn. 37, 47 N. W. 450, 22 Am. St. Rep. 716. This was the rule at the common law in cases where the animal was known to be vicious. And we do not think the statute in question was intended to so far modify the common law as to enable a plaintiff to recover where he purposely brings the injury upon himself. But so far as appears from the plea in the case at bar, the plaintiff was not interfering with the dog, and may not even have been aware of his presence until attacked by him in the manner alleged. The demurrer is sustained, and case remanded for further proceedings.

(24 R. I. 574)

SLATER v. FEHLBERG et al. (Supreme Court of Rhode Island. Jan. 7,

1903.)

PLEADING-DECLARATION — VARIANCE FROM

WRIT-AMENDMENT-PLEA-WAIVER
OF OBJECTION.

1. Where plaintiff declares in trespass, after suing out a writ in case, there is a fatal variance between writ and declaration, and the action must be dismissed.

2. The statute relating to amendments is not sufficiently broad to permit a change in the form of the action.

3. A variance between writ and declaration may be taken advantage of at any stage of the action, and the filing of a plea by defendant is not a waiver of the objection.

Trespass on the case by John H. Slater against John H. Fehlberg and another. On petition of plaintiff for a new trial. Petition denied, with direction to dismiss the action. Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Leon L. Mott, for plaintiff. Francis Colwell, Albert A. Baker, and Frank T. Easton, for defendant Parker. Frederick Rueckert, for defendant Fehlberg.

3. See Pleading, vol. 39, Cent. Dig. § 1373.

TILLINGHAST, J. There is a fatal variance between the writ and declaration in this case, and hence we are of opinion that the action must be dismissed. The form of action set out in the writ is trespass on the case, while that set out in the declaration is trespass.

Our statute relating to amendments is not sufficiently broad to enable the court to permit the form of action to be changed. Wilcox v. Sherman, 2 R. I. 540; Thayer v. Farrell, 11 R. I. 305; Barnes v. Mowry, Id. 422; Dowling v. Clarke, 13 R. I. 650; Vaill v. Town Council, 18 R. I. 405, 28 Atl. 344; Wilson v. Ry. Co., 18 R. I. 598, 29 Atl. 300. See, also, Hobbs v. Ray, 18 R. I. 84, 25 Atl. 694.

As a variance like the one in question may be taken advantage of at any stage of the case, the mere fact that the general issue and other pleas were filed by the defendants before taking the objection is immaterial. Rathbun v. Ry. Co., 19 R. I. 463, 36 Atl. 1134.

The case is remanded to the Common Pleas Division, with direction to dismiss it.

(24 R. I. 565)

MOWRY et al. v. MOWRY. (Supreme Court of Rhode Island. Dec. 31, 1902.)

DOWER-MORTGAGED LANDS.

1. A widow is entitled to dower in the full value of the real estate, against the heirs, though it is subject to mortgages, which, in the absence of personal property, are paid by sale of real estate by order of the probate court.

Appeal from Probate Court.

Application by. Helen L. Mowry, administratrix cum testamento annexo, for an order to sell real estate to pay debts. From such order, Raymond G. Mowry and others appeal. Affirmed.

Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ.

Thomas A. Jenckes, William J. Brown, and Raymond S. Mowry, for appellants. William H. Sweetland, for appellee.

PER CURIAM. Approving the decision of Mr. Justice DOUGLAS in this case, we adopt his opinion as the opinion of the court.

DOUGLAS, J. This is an appeal from the order of the municipal court of the city of Providence directing the administratrix of the will annexed to sell certain real estate for the purpose of paying the debts of the estate, the personal estate being insufficient.

Jencks Mowry died in 1898, leaving a number of children by his first marriage, who are the appellants here, and a widow, his second wife, who is the administratrix with the will annexed, and the appellee here. The will of the deceased was probated. That will contained but one devise, and that was of the testator's farm in Smithfield to his grandson. This will did not name any executor, and the widow was, by the municipal court, appointed administratrix with the will an

nexed. The personal estate of the testator was inventoried at $113.21.

The testator at the time of his death was possessed of four parcels of land: First parcel, farm in Smithfield, which was unincumbered, taxed for about $2,000, and devised to his grandson, Harold Mowry. Second parcel, homestead estate on Academy avenue in Providence, valued at about $10,000. On this estate were two mortgages, one for $3,000, reduced by payments to $2,000, given by Mr. Mowry, before his marriage with Mrs. Mowry, to the City Savings Bank. The other for $1,500, given by Mr. Mowry after his marriage to Mrs. Mowry, and in which Mrs. Mowry released her right of dower to the mortgagee, the City Savings Bank. These two mortgages, with interest in arrears, amounted to $3,742.10. Third parcel, Academy estate on Academy avenue, valued at about $7,000. On this estate was a mortgage given by Mr. Mowry, before his marriage with Mrs. Mowry, to the Mechanics' Savings Bank, which mortgage, with interest in arrears, amounted to over $1,600. Fourth percel, estate on Amity street, in Providence, valued at about $3,000. On this estate was a mortgage given by Mr. Mowry, after his marriage to Mrs. Mowry, in which Mrs. Mowry did not release her right of dower to the mortgagee. Mortgage now held by Mrs. Anderson, one of the heirs of Jencks Mowry. Mortgage amounted, with interest in arrears, to about $1,900. In all, real estate valued at about $22,000, upon which was mortgage indebtedness of about $7,300. There was other indebtedness of the estate, of about $2,000; in all, an indebtedness of $9,300.

In 1889, for the purpose of paying debts, the administratrix obtained permission from the municipal court to plat the first parcel, or homestead estate, into eight house lots, and to sell seven of these house lots, retaining one house lot, on which the homestead was situated. The administratrix sold these seven lots at public auction, including in said sale her right of dower in said seven lots, and, as widow, executed a release of her dower to the purchasers at said sale. The proceeds of said sale, including the right of dower, amounted to $5,230. At that time Mrs. Mowry was 54 years old, and her dower right in said $5,230 was, by the combined experience tables, worth $988. With the balance, after deducting her dower right, as she claimed it, which balance amounted to $4,242, the administratrix paid the two mortgages on the homestead estate, amounting to $3,742.10, leaving a balance in her hands of $499.90 from the sale of said homestead estate. It then came to the knowledge of the administratrix that one of these appellants, Joseph E. Mowry, had purchased from the Mechanics' Savings Bank the mortgage upon the third parcel, or Academy property, and had advertised the property for sale under the mortgage. Fearing a loss to the estate by this sale, she advanced to the estate $988,

which she had retained as dower in the sec. ond parcel, and, with other money in her hands belonging to the estate, paid the mortgage on Academy estate, amounting to $1,611.63. The administratrix afterwards applied to the municipal court to have her dower assigned in the remaining land of her husband, particularly describing in her petition the farm in Smithfield, the one lot not sold in the homestead estate, the Academy estate, and the Amity street estate. This proceeding was compromised by the widow releasing her dower in the farm and receiving therefor a certain sum of money; by the widow releasing dower in Academy estate and Amity street estate and receiving therefor a life estate in the one lot not sold in the homestead estate. The administratrix in all these proceedings insisted that she still claimed the $988 advanced by her to the estate to pay debts. There then remained of indebtedness against the estate the mortgage of $1,900 on the Amity street estate, which the holder, one of these appellants, does not claim against the administratrix (in accordance with some family arrangement), and also the sum of $2,803.15, which included debts of the de ceased, expenses of administration, allowance to widow, and the sum of $988 advanced as aforesaid. The administratrix made the application now under consideration for leave to sell the third parcel, or Academy estate, for the purpose of paying these debts. Since this application was made the appellants have paid all other claims against the estate.

The appellants claim that the widow is entitled to dower in the surplus of the money for which the seven lots were sold over the amount paid to satisfy the mortgage debts, or $1,480, instead of on the whole value of these lots, or $5,230. They further claim that the contribution which the widow made to redeem the Academy estate was due from her as her proportion of the mortgage debt, and so she has no claim for reimbursement of that sum. They also claim that the conveyance of the life estate in the homestead lot was accepted by the widow in full satisfaction of all her claims against the estate arising from rights of dower.

I do not consider the third claim established by the evidence. It seems pretty certain that, while the heirs may have thought they were settling all these claims, the widow did not in any way give up the claims she now makes, and there is nothing in the documents which passed to extend the scope of the settlement beyond the parcels of land which these conveyances affected.

The most serious question arises with respect to the estimation of dower in the seven lots sold from the homestead estate. It is undoubtedly true that, where the personal property of an estate is sufficient to pay debts, it must be used to exonerate the real estate from mortgages; and, when relieved from such liens, the whole land is subject to the widow's dower. Whether the mort