478, and in Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, but whether it is to be followed in this commonwealth has never been decided.

The question in this case is different. The defendant was a landlord who maintained outside steps and a platform for the use in common of tenants of different parts of her building. The plaintiff was injured by a defect in the platform while passing over it on a visit to one of the tenants, made on his express invitation to come on a particular day for a particular purpose. The duty of the defendant to keep the platform safe for the tenant, and for those claiming under him, grew out of the contract of hiring. It was a part of the contract that the platform should be kept reasonably safe for the tenant for use in connection with his tenement. The contract impliedly included, not only the tenant himself, but the members of his family, and his servants and agents who might rightfully occupy and use the tenement with him. It included boarders and lodgers, if, in a proper use of the tenement, such persons might be received there by the tenant. It included all persons who, in connection with the use of the tenement by the tenant, might properly pass over the platform under the express authority of the tenant, and in his right. To all such persons, by virtue of her contract with the tenant, the landlord owed the same duty that she owed to the tenant personally, to keep the platform reasonably safe. Whether the tenant would or would not have been liable to the plaintiff for an injury received from an unsafe condition of the tenement which he occupied, he expressly authorized the plaintiff 460 to pass over the platform in the exercise of his rights under the contract with the defendant, and the defendant owed the plaintiff the duty which arose from the contract in favor of those who were acting by express authority of the tenant in the tenant's right: Wilcox v. Zane, 167 Mass. 302. Exceptions overruled.

LANDLORD AND TENANT-COMMON STAIRWAY-LANDLORD'S DUTY AND LIABILITY-TENANT'S GUESTS.-If rooms or portions of the same building are let to different tenants, the building having a common stairway for the use of all, the landlord is bound to keep it in reasonable repair, and is liable for a failure to do so, where the tenant's guests, or strangers rightfully on the premises, are injured in consequence of the defective condition of the stairway: Sawyer v. McGillicuddy, 81 Me. 318, 10 Am. St. Rep. 260, and note; note to Lindsey v. Leighton, 15 Am. St. Rep. 201, notes to Poor v. Sears, 26 Am. St. Rep. 278; Nalley v. Hartford Carpet Co., 50 Am. Rep. 53.

HAYDEN V. Barrett.

[172 MASSACHUSETTS, 472.]

DESCENT-ILLEGITIMATE CHILD AS AN HEIR.-Under the statutory law of Massachusetts, an illegitimate child is the heir of his mother; but at common law he could not be an heir, even of his mother.

WILLS-ILLEGITIMATE CHILD AS AN "HEIR BY BLOOD."-An illegitimate child is the "heir by blood" of his mother within the meaning of a will wherein the term "heirs by blood" is used, where it plainly appears that the testator intended by the use of that term to indicate those persons whose relationship was by some tie of consanguinity; and to exclude all others, such as husband, wife, or adopted children.

Bill in equity, brought by trustees, Hayden and another, against Barrett and others, for instructions as to the construction of the following portion of the will of Sidney B. Morse: "I give, devise, and bequeath all the rest, residue, and remainder of my property and estate, real, personal, and mixed . . . . to

trustees. . . . to pay the net income, rents, and profits thereof to my beloved wife, Mary Ann Morse, during her life, .. and upon her decease to continue to hold the same during the term of ten years from said time; . . . . 5. To pay three-tenths of the income thereof to the children of my brother, George H. Morse, viz., Mary Ann Morse, Fannie E. Barrett, wife of Frank S. Barrett, and Roswell M. Morse, to be equally divided among them, the portion payable to females to be so paid upon their sole receipt and free from the control or interference of any husbands they may have, or, in case one or more of them decease prior to the expiration of said ten years, to pay the income due to such one or more to his or her or their respective heirs by blood, and, at the expiration of said ten years, to transfer, pay over, and convey one of said ten parts so divided as herein before provided to the said Mary Ann Morse, one of said ten parts to the said Fannie E. Barrett, and one of said ten parts to the said Roswell M. Morse; or, in case one or more of them are not then living, to transfer, pay over, and convey such part or portion to his or her or their respective heirs by blood." Mary Ann Morse, the widow of the testator, died on or about July 11, 1895, and his niece, Mary Ann Morse, died on or about November 25, 1895. The respondent, Fannie E. Barrett, was the sister, and the respondent, Horace E. Morse, was the son, of a pre-deceased brother of the niece, Mary Ann Morse. This niece was never married, and the respondent, Ernest L. Morse, was her illegitimate child. She left no father

or mother, and no issue, brother or sister, or descendant of any deceased brother or sister, other than the respondents. It was alleged in the bill that a certain portion of the income in the hands of the trustees was payable by the terms of the fifth clause above-mentioned, and that a like portion of the income to accrue during the period of ten years from the death of the testator's widow, and also of the principal of the trust fund at the expiration of the ten years would be payable to the "heirs by blood" of the niece, Mary Ann Morse, deceased. The justice who heard the bill was of the opinion that Ernest L. Morse was entitled to the portion of the fund in controversy, but, at the request of the other respondents, reported the case for the consideration of the full court.

C. P. Lincoln, for the petitioners.

W. Sullivan, for the respondent, Ernest L. Morse.

E. G. McInnes and C. A. Whittemore, for the other respondents.

474 HAMMOND, J. The single question is, whether under the fifth clause of the tenth item of this will the illegitimate son of Mary Ann Morse takes as her "heir by blood."

By the common law of England and of this commonwealth a bastard in all matters relating to the inheritance of property was nobody's child, and as to such matters his existence was therefore ignored: Cooley v. Dewey, 4 Pick. 93, 16 Am. Dec. 326; 2 Dane's Abridgment, 522, and cases therein cited; Pratt v. Atwood, 108 Mass. 40.

And accordingly it is also well settled that, in the absence of any language clearly expressing the contrary, all general words in the statutes of distribution, such as "child," "children," "next of kin," and similar words descriptive of classes who are to inherit, do not include illegitimate children: Kent v. Barker, 2 Gray, 535, and cases therein cited. And so of similar expressions in a Massachusetts will: Kent v. Barker, 2 Gray, 535; Adams v. Adams, 154 Mass. 290; Haraden v. Larrabee, 113 Mass. 430.

If, therefore, the rights of the illegitimate son of Mary Ann Morse depended upon the common law, the decision must be against him. But for two generations and more it has been the statute law of this commonwealth that an illegitimate child shall be the heir of his mother, and the tendency of legislation

as shown by an amendment to the statute seems to be growing in the direction of change in the common law in this respect more favorable to him. By our statutes Ernest L. Morse was the heir of his mother, and of any maternal ancestor, and, if the mother died intestate, he, being the only child, was her sole heir as to all her property: See Pub. Statutes, c. 125, sec. 3.

By the will the property at her death goes to the "heirs by blood." The illegitimate son, it is true, does not take it by descent from his mother, but, if at all, as the person designated by the will.

475 In Lavery v. Egan, 143 Mass. 389, 392, where real estate had been devised to a person for life, with contingent remainder to her heirs, it was decided that the husband of the life tenant took as her heir under the Statutes of 1880, chapter 211, section 1, which provides that in certain cases a husband shall take in fee the real estate of his deceased wife to an amount not exceeding five thousand dollars in value. In giving the opinion Mr. Justice Field says: "Although in the case at bar the heirs of . . . . [the life tenant] do not take from her by inheritance, but take as persons designated by the will, yet we know of no way of determining the persons intended by the will, except by ascertaining the persons who by law would have inherited the estate from her if she had died seised of it and intestate."

Applying that principle to this case, we have no doubt that, within the meaning of the will as interpreted in the light of the statute, the illegitimate child was the heir of his mother, and it only remains to be considered whether he was her heir "by blood" within the meaning of the will.

The expression "heirs by blood" occurs several times in the will. In the first clause of this tenth item the trustees are directed to pay certain income "to my niece Helen E. Howland, daughter of my said sister Caroline Ware Morris, upon her sole receipt and free from the control or interference of any husband she may have, and in case of her death prior to the expiration of said ten years to pay said balance, if any, to her heirs by blood." And the second clause of said item is as follows: "To pay one-tenth of the income thereof to my niece Caroline E. Dutton upon her sole receipt, free from the control or interference of any husband she may have, and, in case of her death prior to the expiration of said ten years, then to pay the said income to her heirs by blood, and at the expiration of said ten years to transfer, pay over, and convey one of said ten parts

so divided as herein before provided to the said Caroline E. Dutton, or, in case she is not then living, to her heirs by blood."

And the same language is used with reference to the legacies to the other nieces and to his nephew, in the same item of the will. All the way through this item the testator was bearing constantly in mind the husbands of these various nieces, and he desired that there should be no control or interference on the 476 part of any such husband during the life of the niece, and then in the same general line of thought uses language which finally excludes the husband from having any share in the property after the decease of the niece.

It is plain, we think, that the testator intended by the use of the term "heirs by blood" to indicate those persons whose relationship was by some tie of consanguinity, and to exclude all others, such as husband, wife, or adopted children. He intended to keep the property in the family and within the tie of consanguinity, but otherwise was content that the law should determine who should be the heir to any niece.

Within the meaning of the will, Ernest L. Morse was the "heir by blood" of his mother.

Decree accordingly.

ILLEGITIMATE CHILD AS AN HEIR.-A bastard could not inherit even from its mother by the common law, but this rule has been changed by statute in some of the states: McDonald v. Pittsburg etc. Ry. Co., 144 Ind. 459, 55 Am. St. Rep. 185, and note. See, also, the monographic note to Simmons v. Bull, 56 Am. Dec. 263, on the policy of the ancient common law toward bastards, and rights of, generally.

SPADE V. LYNN AND BOSTON RAILROAD COMPANY.

[172 MASSACHUSETTS, 488.]

RAILROADS-STREET-CARS-RISK ASSUMED BY PASSENGER-EXPELLING DRUNKEN MAN.-A passenger upon a street-car assumes the risk, when he takes passage, of the conse quences of a lawful and reasonable act of the conductor in expelling a drunken man from the car.

RAILROADS

ACCI

STREET-CARS - UNAVOIDABLE DENT TO PASSENGER IN EJECTING DRUNKEN MANRIGHT OF ACTION.-If due care is used in expelling a drunken man from a street-car, an unavoidable battery committed on a passenger's person, during the process, by the conductor's jostling another drunken man, who falls upon the passenger, seems not to be actionable.

RAILROADS-STREET-CARS-DAMAGES FOR FRIGHT CAUSED BY EJECTING DRUNKEN PASSENGER.-If the con