tions that said appellant had no interest in | appellant was not aggrieved was denied, and the appointment of said appellee as said exception taken. There was a jury trial in guardian. The case has been heard on said the case. Before the trial appellee renewed motion to dismiss the bill of exceptions. her motion to dismiss, which was again deThere is no evidence or suggestion even to show that the appellant is aggrieved personally by the decree in question. Indeed, he makes no such claim, but alleges himself to be aggrieved by said decree only in his capacity as guardian of Rita Fanning.

[1] Passing the technical question as to whether the appeal has been properly taken in his own name, instead of hers, and treating the appeal as if taken by her, it is to be regarded as the well-settled law of this state that as an expectant heir of her grandfather, now living, said Rita Fanning is not aggrieved by the decree of the probate court in question, so as to entitle her to appeal therefrom. See Hamilton v. Court of Probate, 9 R. I. 204, Gannon v. Doyle, 16 R. I. 726, 19 Atl. 331, Tillinghast v. Brown University, 24 R. I. 179, 52 Atl. 891, and McKenna v. McKenna, 29 R. I. 227, 69 Atl. 844. See, also, Nimblet v. Chaffee, 24 Vt. 628, and Deering v. Adams, 34 Me. 421.

[2] The appellant, however, claims that the motion to dismiss comes too late, and that the hearing of the appeal on its merits waived all defects as to parties and to per

sons. He cites a number of cases in support

of his claim. Not many of the cases cited by him are pertinent. Cannon v. McEnanly, 21 R. I. 60, 41 Atl. 1016, does not involve the right of the appellant to appeal, but whether the reasons of appeal had been filed in time. The motion to dismiss in that case was made after three jury trials, the last of which was in favor of the appellant. The court held the appellees to be estopped from taking advantage of any defect in the pleadings, unless such defect be jurisdictional. In Re Robinson, 106 Cal. 493, 39 Pac. 862, a case arising under the California Civil Code, the court held that the right of the parties to ask for a revocation of the probate of a will was not involved upon the appeal. The superior court had recognized their right by bearing their petition and rendering judgment thereon, to which action no exception was taken by the respondents in the court below.

nied, and exception again taken. At the close of appellant's testimony verdict was rendered by direction of the court for the appellee. The appellant excepted, and brought his bill of exceptions to this court. The appellee did not come here on her exceptions, but filed a motion in this court to dismiss the appellant's bill of exceptions. That case, therefore, was before this court in the same position as the present one, namely, on the appellant's bill of exceptions to the dismissal of the appeal on its merits, except that the record in the former case disclosed motions to dismiss in the superior court, while this case simply shows that the appellee urged upon the superior court that the appellant had no standing as an aggrieved person, though no formal motion to dismiss was

made. Each case was heard on its merits

If the

in the lower court and dismissed.
question of waiver or estoppel is considered
important, it seems fair to conclude that
there has been in this case no waiver or es-
toppel, although no motion to dismiss was
made in the superior court.

McKenna there is no reference to the quesIn the opinion in the case of McKenna v. tions of waiver or estoppel, but the court undoubtedly considered the case on the motion to dismiss the bill of exceptions on the broad ground of the right of the appellant to present the case here. On page 226 of 29 R. I., and page 845 of 69 Atl., the court says: "This question of the right of the petitioner to appeal lies at the threshold of the cause. If the petitioner had no right to ap peal from the decree of the probate court, he has no right to complain of the rulings in the superior court, and no right to bring the case here on exceptions." In that case the motion to dismiss was granted, and the case was remitted to the superior court, with direction to enter a decree dismissing the appeal for want of jurisdiction. Obviously the term "jurisdiction" is there used with the meaning that this court had no jurisdiction of the appeal, because section 796, C. P. A., now section 1 of chapter 311 of the General Laws, gives the right of appeal only Trinity Church v. Hall, 22 Conn. 125, seems to a limited class defined by the word "agto lend support to appellant's claim, although grieved," to which class the petitioner and it implies the existence of a form of plead- appellant in that case did not belong, but ing and procedure quite different from the was before the court merely as an intruder practically entire absence of pleading pre- or interloper, without the interest in the proscribed in our statute for an appellee in pro-ceeding required by said section 1. The apbate appeals. However, it will not be followed as a precedent, because it is not consistent with the action of this court in the recent case of McKenna v. McKenna, supra. That was a probate appeal from the dismissal of a petition for the appointment of a guardian. In the superior court a motion to

pellant in this case is in a like situation.

We are of the opinion that the motion to dismiss the bill of exceptions was made within proper time. The motion is granted, and the appellant's bill of exceptions is dismissed. The case is remitted to the superior court, with direction to enter a decree dis

(35 R. I. 342)

COOK et al. v. COOK et al. (Supreme Court of Rhode Island. May 22,

1913.)

for final decree, under chapter 289, § 35, Gen. Laws 1909.

The bill sets out the death of William Cook, a copy of his will, the probate there

1. WILLS (§ 449*)-CONSTRUCTION-INTENTION of, the declination of the executor therein OF TESTATOR.

A will will be construed so as to avoid partial intestacy, if such construction is natural and reasonable, and appears to comport with the intention of the testator.

[Ed. Note. For other cases, see Wills, Cent. Dig. 965; Dec. Dig. § 449.*]

named, the appointment of Charlotte Cook Sayles and James Cook as administrators with the will annexed, and a prior request by the parties to this bill to the Supreme Court for an opinion on various matters involving certain questions pertaining to the

2. WILLS (§ 566*)-CONSTRUCTION-DESCRIP- will and estate of William Cook deceased, TION OF PROPERTY-"SAVINGS BANKS."

Testator by a holographic will, in which he attempted to dispose of all of his property without residuary clause, bequeathed to his wife, in addition to certain other property, onethird of the money in his business bank account, and also one-half of all money "in savings banks." Held, that the term "savings banks" was not limited to corporations which were such alone, but included trust companies operating savings bank departments, and included. all testator's funds invested' in such banks and trust companies, other than his checking deposit, whether they were represented by its passbooks, participation certificates, or otherwise.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 12382, 1239; Dec. Dig. § 566.*

For other definitions, see Words and Phrases, vol. 7, pp. 6338, 6339.]

Case Certified from Superior Court, Providence and Bristol Counties.

Bill by Kate Cook and others against James Cook and others for the construction of the will of William Cook, deceased. On certified questions from the superior court under Gen. Laws 1909, c. 289, § 35. Decree for complainants.

See, also, 30 R. I. 494, 76 Atl. 356. Fitzgerald & Higgins, of Providence, for complainants. Frank H. Wildes and Barney & Lee, all of Providence, for respondents.

and refers to the opinion thereon, reported in 30 R. I. 494, 76 Atl. 356. It further sets out the filing of a bill of interpleader against all the parties to this suit by the Citizens' Savings Bank, and a final decree therein by consent of certain of the parties, but not of Kate Cook, and certain proceedings thereunder relative to a certain deposit in the Citizens' Savings Bank, resulting in the payment to one Sidney F. Whipple of said deposit; also certain other allegations not material upon the question of construction of the will. The complainants further represent that they and the defendants are all of the children, heirs at law, and persons interested under the said will of William Cook, deceased.

Service was made upon all the respondents. Howard T. Metcalf was appointed by the superior court guardian ad litem of the aforesaid minors Charlotte I. Cook, Kate Cook, Williminer Cook, and Ann Cook, and James Cook was appointed guardian ad litem of his infant son, Allison Cook. The respondents James Cook and Charlotte Cook Sayles, in their individual capacity and in their capacity as administrators with the will annexed of William Cook, and James Cook in his capacity as father, next friend, and guardian ad litem of Allison Cook, a minor, and Howard T. Metcalf, guardian ad litem of Charlotte I. Cook, Williminer Cook, Kate Cook, and Ann Cook, concurred in the amended bill and joined in the prayer for the construction of said will.

By Exhibit A, attached to said bill, a copy of said will was set forth as follows: "Exhibit A. Copy of Will of William Cook, of Providence, R. I.

"In the name of the Lord-Amen.

JOHNSON, C. J. This is a bill in equity, brought by Kate Cook, William Cook, Charlotte I. Cook, Williminer Cook, Kate Cook, and Ann Cook (the last four being minors, who bring this bill through their next friend and mother by adoption, Kate Cook), all of the city and county of Providence, in said state, Willie Collins, a minor, by his next friend and father, Harry L. Collins, of the city of Boston, in the commonwealth of Massachusetts, Kate Cook Collins, also of said Boston, and Janet Cook Crowley, of the town of Greenwich, in the state of Connecticut, against James Cook and Charlotte Cook Sayles, both in their individual capacity and in their capacity as administrators with the will annexed of William Cook, deceased, and against Allison Cook, a minor and son of said James Cook, said Allison Cook and James Cook being residents of said Providence, and the said Charlotte Cook Sayles being a resident of the city of Central Falls, said county of Providence, and state of Rhode Island. Said cause has been certified to this court by the superior court as ready for hearing and bequeath to her one-fifth part of my For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep's Index

"I, William Cook, of the City and County of Prov., in the State of R. I., being of lawful age, of sound and disposing mind, calling to mind the frailty and uncertainty of life, and being desirous of disposing of that property which God has blessed me with, do make publish and declare this, and this only, to be my last will and testament.

"First-I give and bequeath to my wife Kate Cook the use of my house and furni ture and lands not otherwise disposed of, as long as she lives. Said house and lands are at 735 Smith Street, Prov. I also give

“Fifth-To my adopted daughter Charlotte May 27, 1908, said William Cook had on I. Cook and her heirs I give and bequeath deposit in his own name (apart from deposit one-fifth part of my building at 14 No. Main of $1,516.95 in the Industrial Trust CompaSt., Prov. Also one-fifth part of the busi-ny's checking or business bank account) the ness carried on there, also one-fifth part of following accounts: the stock, fixtures and leases and money in business bank account. I also give her my diamond ring. I also give her one-quarter of all moneys I have in Savings Banks. I (c) People's Savings Bank...... also give and bequeath to my adopted daugh- (d) Union ter Charlotte I. Cook and heirs forever three (3) lots of land situated on the northerly side of Hilltop Avenue, Providence. Said lots are marked 34, 35, 36 on the plat from 7 Grosvenor.

"Sixth-To my daughter Kate Cook Collins I give the sum of ten dollars, she hav-(e) Citizens' Savings Bank... ing already got five thousand dollars from

accounts of the Industrial Trust Company, companies have on participation account the and Rhode Island Hospital Trust Company; deposits of the testator is set out in the and one-half of said negotiable and contingent certificates in Union Trust Company, or does she take simply one-half of the deposit in the People's Savings Bank alone?

bill. Whether they were empowered under their charters to have savings accounts, whether called participation accounts or oth. erwise, is not the question before us. The "(b) Does Kate Cook, widow of William question which we have to consider is wheth Cook, under said first paragraph of the willer said deposits are included in the words of said William Cook, deceased, take any "all money I have in saving banks." Did share in the said deposit in the Citizens' the testator so intend? Savings Bank?"

also, the rules, regulations, and methods of doing business in the participation branch, of trust companies are entirely different from those of the checking or business department. In the latter, the money is always on call, it draws a smaller percentage of interest, and no notice is necessary to enable the depositor to draw the money.

The fact that these deposits were made in We do not suppose that, in order to be a what are called trust companies does not, "saving bank" or "savings bank," it is nec- in our opinion, affect their nature. It is well essary that the name of the corporation known that trust companies, such as those should express the fact that it is such. The set out in the bill, have long maintained savmere designation by the name of savings ings or participation departments, and that bank we apprehend is immaterial. Its char- their rules and manner of doing business acter must be determined by a consideration connected with such departments are pracof its organization, powers, and mode of do- tically the same as those under which saving business provided in the incorporation ings banks do business. In practically every act. Thus, where a loan and trust company, essential respect, a deposit in an institution incorporated to do a trust business, a safe called a savings bank is the same as a dedeposit business, and a general banking busi-posit in the participation account of a trust ness, has a savings department, in which company such as those involved in this bill; term savings deposits are received upon a specified rate of interest, the corporation, as respects its term savings deposits, has been held to be de facto a savings and loan corporation, whether so de jure or not, and to have been properly assessed for taxation upon the amount of credits, claims, debts, and demands due, owing, or accruing for or on account of such term deposits. Los Angeles v. State Loan & Trust Co., 109 Cal. 396, 42 Pac. 149. The court (109 Cal. 404, 42 Pac. 151) says: "Respondent saw proper to classify its business, and designated one part as the 'savings department,' and named certain hours for that business. It received a large amount of deposits in that department in full accordance with one of the modes of conducting a savings and loan corporation as authorized by the statute. It gave to the depositor a passbook, which denominated the deposits therein entered as 'savings deposits.' It assumes to be a savings bank pro tanto, at least, in obtaining the deposits, and should not be heard to say that it is not, when the question of taxation arises, whether it arises between the bank and the state or between it and the depositor."

The testator himself divided his deposits throughout his will between what he calls "business bank account" and "saving banks" or "savings banks." What did he mean by these expressions? He had, as appears from the third paragraph of the amended bill of complaint, a deposit of $1,516.95 in the checking account of the Industrial Trust Company. All his other deposits were in savings banks and the participation accounts of trust companies. Is it not properly inferable that he intended by these expressions to give to his wife one-fifth of the Industrial Trust Company checking account under the name of a business bank account, and onehalf the money in the participation accounts of the Industrial Trust Company and the other trust companies, under the words, "all money I have in saving banks"? Is it probable that in thus providing for his wife he did not realize the difference between a business bank account and a savings or a participation account? He was a man of mature age and had been in active business for many years. This will was entirely in his own handwriting, and was evidently prepared without the advice of counsel. It is not drawn with the technical accuracy that might be expected, had it been prepared by an experienced attorney. From a careful In the matter before us, however, we do reading of the will itself and a consideration not apprehend that we are necessarily con- of the circumstances under which it was cerned as to the organization, powers, and drawn, it seems probable that when he used mode of doing business prescribed in the the term "business bank account" he meant acts of incorporation of the trust companies the ordinary checking account, and when he named in the bill. The fact that said trust used the words "money in saving banks" he

In State v. Lincoln Savings Bank, 82 Tenn. (14 Lea) 42, also a suit for the collection of a tax, the court, at page 43, says: "It is true that in the act of January 11, 1869, incorporating the defendant, it is named the 'Lincoln Savings Bank'; but the mere designation of it by this name does not make it a savings bank. To determine its character, we must look to its organization, powers, and mode of doing business, provided in the incorporation act."

meant savings accounts in the various in- | in saving banks" includes not only money in stitutions where he had deposits, whether savings banks, thus entitled, but also money such banks were entitled savings banks or on deposit in the participation accounts of trust companies. It does not seem probable the trust companies named in the bill. As that a man of Mr. Cook's age and experience to the negotiable and contingent certificates could have confounded his two accounts, or given in exchange for a deposit of said testathat he meant by the expression "business tor on participation account in the Union bank account" anything other than the de- Trust Company at the time of the reorganposit in his checking account in the Indus- ization of said company, we do not think trial Trust Company. that the issue of these certificates affected [1] From an inspection of the will itself, the operation of the bequest in question upit appears that all of Mr. Cook's property on the deposit in said Union Trust Company. is bequeathed and devised specifically. He The bequest is of the money in "saving makes provision for all his estate, real and banks," and as, in our opinion, the language personal, and the will has no residuary of the bequest covered the deposit in said clause. He provides that the fees of the Union Trust Company, we do not consider executor and for the lining of his grave shall it at all material as to how said deposit was be taken from his savings bank money before evidenced, whether by a passbook or cerbeing divided. Having thus enumerated tificates. The mere exchange of negotiable all the parts of his real and personal prop- and contingent certificates under a reorganerty, and having specified his cash assets as ization of the trust company could not "business bank account" and "money in sav- change the nature of the deposit, and would ing banks," the gift to his wife in the clause not cause an ademption of the legacy. See referred to can easily be determined. What In re Peirce for an Opinion, 25 R. I. 34, 54 becomes of these participation accounts, if Atl. 588. they are not included in his expression "money in saving banks"? They certainly cannot be considered "business bank accounts." If, therefore, they are not included under the words "all money I have in saving banks," then they are not disposed of by the will. If such interpretation be given his will, we find Mr. Cook making specific devises and bequests of every article of his property, real and personal, except these particular deposits in the participation accounts referred to. It seems illogical that such a conclusion should be drawn, or such an interpretation be placed on his will as would admit of such a conclusion, especially after Mr. Cook has used diligent care to enumerate his devises and bequests in detail.

The general rule is to so construe a will as to avoid partial intestacy, if such construction is natural and reasonable. Staples v. De Wolf, 8 R. I. 74; Pell v. Mercer, 14 R. I. 412, 417; Smith v. Greene, 19 R. I. 558, 560, 35 Atl. 148; Fiske v. Fiske, 26 R. I. 509, 512, 59 Atl. 740; Woodward v. Congdon, 34 R. I. 316, 323, 83 Atl. 433. The intention of the testator is to be ascertained and be given effect, if possible, consistently with established rules of law. The court should place itself in the position of the testator as nearly as may be, and endeavor, if possible, to give his language such interpretation as will carry out his intention. In other words, the intent of the testator, as it appears from his will taken as a whole, rather than any particular technical word or phrase, should govern. Bailey v. Brown, 19 R. I. 669, 36 Atl. 581; Boardman, Petitioner, 16 R. I. 131, 13 Atl. 94; Woodward v. Congdon, supra.

[2] In our opinion, therefore, the bequest in the first paragraph of the will to said Kate Cook of "one-half of all money I have

Our answer to the first question, therefore, is that under the first clause of the will of William Cook his widow, Kate Cook, takes one-half of the deposits in the People's Savings Bank, and also one-half of the deposits in the participation accounts of the Industrial Trust Company, the Rhode Island Hospital Trust Company, and the Union Trust Company.

As to the second question, our answer is that by the terms of the first paragraph of said will said Kate Cook takes one-half of the deposit in the Citizens' Savings Bank, for the same reason that she takes one-half of the deposits referred to in the answer to the first question, provided the testator owned said deposit at the time of his death.

Of course, we can only construe the will. We cannot decide here whether or not William Cook owned said deposit in the Citizens' Savings Bank at the time of his death. The will took effect upon his death, and if he owned said deposit at that time one-half thereof went by the terms of said first paragraph of his will to said Kate Cook.

A decree in accordance with this opinion may be presented, in order that the same may be approved by this court and ordered to be entered in the superior court.

FRANCIS v. PROVIDENCE, F. R. & N.
STEAMBOAT CO.
(Supreme Court of Rhode Island. May 22,
1913.)

1. MASTER AND SERVANT (§ 278*)-INJURIES
TO SEAMAN-NEGLIGENCE EVIDENCE.

steamboat by the alleged turning of a gangplank as he started to go ashore after the boat had been tied up for the night, evidence

In an action for injuries to an oiler on a