and what sort of fence would be suitable along
it, and to allow for such a crossing and for the
amount of such fence made necessary by the
ditch, in fixing appellant's damages.

cine County; Richard T. Daly, Judge.
Appeal from District Court, Yellow Medi-

given them are granted solely for the purpose | average farmer would construct over the ditch, of enabling them to perform this public duty. As governmental agencies they are always under the control of the Legislature which may modify or abrogate their powers and privileges to any extent that it may see fit. Their boundaries or territorial jurisdictions may be enlarged, diminished or abolished in such manner and through such instrumentalities as the Legislature may prescribe. 24 R. C. L. 562, §§ 6, 7, and numerous cases there cited. City of Winona v. School District No. 82, 40 Minn. 13, 41 N. W. 539, 3 I. R. A. 46, 12 Am. St. Rep. 687; Bank v. Brainerd School District, 49 Minn. 106, 51 N. W. 814; Associated Schools v. School District No. 83, 122 Minn. 254, 142 N. W. 325, 47 L. R. A. (N. S.) 200; Common School District No. 85 v. County of Renville, 141 Minn. 300, 170 N. W. 216.

The constitutional provisions cited do not apply to governmental agencies, nor restrict the power of the Legislature over such agencies. Neither is section 33 of article 4 of the Constitution infringed by this statute for it is a general law applicable to all districts having a borough, village or city of not more than 7000 inhabitants partly or wholly within

its boundaries.

Order affirmed.

In re JUDICIAL DITCH NO. 2. FALKENHAGEN v. YELLOW MEDICINE COUNTY et al. (No. 21536.)

P. J. Falkenhagen demanded a jury to assess the amount of benefits and damages assessed to his land from a judicial ditch established by the counties of Yellow Medicine and Lac qui Parle, and after the jury's reassessment moved for a new trial. From the order denying his motion, he appeals. Order affirmed.

Oluf Gjerset, of Montevideo, for appellant.
O. A. Lende, of Canby, for respondents.

TAYLOR, C. The appellant is the owner of a half section of land which is crossed by judicial ditch No. 2 of Yellow Medicine and Lac qui Parle counties. Being dissatisfied with the amount of benefits and damages assessed to this land in the order establishing the ditch, he demanded a jury trial and had the benefits and damages reassessed by a jury. Thereafter he made a motion for a new trial and this appeal is from the order denying his motion.

[1] 1. It appears that when the original report of the viewers came before the court for consideration, the court resubmitted the entire matter of assessments to the viewers for further examination and further report, and that the order establishing the ditch

(Supreme Court of Minnesota. Dec. 5, 1919.) was based on the second report of the view

(Syllabus by the Court.)

1. DRAINS 57, 82(3)-ORDER ESTABLISHING

JUDICIAL DITCH NOT APPEALABLE.

An order establishing a judicial ditch is not appealable and cannot be attacked on an appeal taken to review a reassessment of benefits and damages.

2. DRAINS 57-TESTIMONY AT JURY TRIAL TO DETERMINE BENEFITS AND DAMAGES.

Where a jury trial is had to determine the benefits and damages which a farm will receive from the ditch, the viewers may testify as to the quantity of wet land on the farm and as to its value with and without the ditch, and such testimony does not infringe the rule that their assessment is not to be used as evidence at such trials.

ers made pursuant to such resubmission. Appellant seeks to attack the order establishing the ditch on the ground that the resubmission to the viewers of the matter of the assessments was not warranted by the facts then before the court. It is sufficient to say that no appeal lies from the order establishing the ditch and that the ruling in question is not reviewable on this appeal.

[2] 2. At the trial the viewers were called as witnesses and testified as to the number of acres of wet land on the different subdivisions of appellant's farm, and while doing so were permitted to refer to memoranda made by themselves while examining the land as viewers. They also testified as to the value of the farm with and without the ditch We find nothing improper or objectionable

3. EVIDENCE 474(18)-COMPETENCY OF WIT- in this testimony, and are unable to sustain NESS TO TESTIFY AS TO VALUE.

The court did not exceed its discretion in ruling that the witnesses who testified as to value were competent to do so.

4. DRAINS 57 - ALLOWANCE OF ORDINARY FARM CROSSING AND NECESSARY FENCES AS

DAMAGES.

The court properly directed the jury to determine what sort of a farm crossing the

appellant's contention that its reception infringed the rule recognized in Dodge v. Martin County, 119 Minn. 392, 138 N. W. 675, Cunningham v. County of Big Stone, 122 Minn. 392, 142 N. W. 802, and Rooney v. County of Stearns, 130 Minn. 176, 153 N. W. 858, that the assessments made by the viewers should not be used as evidence before the jury. The viewers were competent witnesses and no

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(175 N.W.)

attempt was made to show the amount of their assessments either by offering their report in evidence or otherwise.

of death or disability for which compensation or damages are not required by law to be paid by his employer. This being a case in which liability of the employer arose under the Compensation Act, liability under the benefit cer

tificate does not arise.

TY ON BENEFIT CERTIFICATE.

[3] 3. Appellant also complains that some of the witnesses "were permitted to give their opinions as to the value of the land involved in the suit without showing that they were 3. MASTER AND SERVANT 100(3)-LIABILIqualified to give such opinion." They had been farmers in that part of the state for many years and had a general knowledge of the value of such lands derived from common report or other information. We think it was within the discretion of the trial court to receive their testimony.

[4] 4. Appellant complains of four paragraphs of the court's charge, but we find nothing improper or prejudicial in them. The two most important related to a farm crossing over the ditch and fences along it. The court in effect directed the jury to allow appellant the expense of constructing and maintaining such a crossing as in their judgment "the average man (would) use for a crossing there," and further directed them to determine what kind of a fence would be suitable along the ditch, and whether a fence was needed on both sides of it, and allow him the cost of constructing and maintaining such fencing as they found that he would need. We think that these questions were for the jury to determine and that appellant has no substantial ground for complaining of the manner in which they were submitted. We are also unable to sustain the contention that the matter of these damages was submitted in such a manner as to exclude damages for the inconvenience in operating the farm caused by its being divided into two parts by the ditch.

Order affirmed.

HOLMQUIST v. CURTIS LUMBER & MILL
WORK CO. et al. (No. 21393.)

(Supreme Court of Minnesota. Nov. 21, 1919.)

(Syllabus by the Court.)

1. STATEMENT OF CASE.

Plaintiff, while in the employ of one of defendants, was injured by the negligence of a third party. The injury was one for which his employer was liable to make compensation under the Compensation Act (Gen. St. 1913, §§ 8195-8230), but plaintiff sued the third party, and recovered in settlement more than the compensation allowed by the compensation act. Plaintiff also held a benefit certificate issued by defendants' benefit department and now sues for benefits under that certificate.

2. MASTER AND SERVANT 100(3)—EMPLOYERS' LIABILITY ON BENEFIT CERTIFICATE; LIABILITY UNDER COMPENSATION ACT. Plaintiff's contract with defendants' benefit department entitled him to benefits in event

The fact that the payment of damages by the railroad company discharged the liability of the employer does not give rise to liability under the benefit certificate.

Appeal from District Court, Hennepin County; Daniel Fish, Judge.

Action by Alfred Holmquist against the Curtis Lumber & Mill Work Company and another. Directed judgment for plaintiff, defendants appeal. Reversed.

and

George T. Simpson, John F. Dahl, and H. V. Mercer, all of Minneapolis, for appellants. John M. Nelson and T. J. Stevenson, both of Minneapolis, for respondent.

HALLAM, J. [1] 1. Plaintiff, while in the employ of defendant, Curtis-Yale-Howard Company, was injured by the negligence of the Omaha Railway Company. The injury was one for which his employer was liable to make compensation under the Compensation Act (Gen. St. 1913, c. 84A). Plaintiff sued the railway company, and, by compromise, secured in settlement of his claim, $4,750, which was more than the compensa. tion for which his employer was liable under the Compensation Act. He now brings this action to recover under a benefit certificate issued to him by the Benefit Department of the defendant, Curtis Lumber & Mill Work Company, of which the Curtis-Yale-Howard Company is a subsidiary. The trial court commenced the trial with a jury. At the close of the testimony, the court, observing that the case presented only questions of law, discharged the jury, and later directed judgment for plaintiff. Defendant appeals.

Plaintiff's claim is contractual and his right to recover naturally depends on the terms of his contract. The trial court remarked that the decision gave plaintiff double reimbursement for his injury, and that this was a "bit unfair," but considered that the contract call-. ed for insurance and contemplated double compensation in such a case as this. Plaintiff paid the dues required by his contract and is entitled to all that his contract allows. If it is a contract of insurance, plaintiff is entitled to the amount claimed. State ex rel. City of Duluth v. District Court, 134 Minn. 28, 158 N. W. 791, Ann. Cas. 1918B, 635, and his demand is not a "bit unfair." On the other hand, the fact that he has paid for benefits in defendants' Benefit Department

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

does not entitle him to any benefits other [any signatory company." Nowhere is there than those for which his contract provides. any provision for payment of benefits in any [2, 3] 2. Defendants' Benefit Department and the rights of its members, including plaintiff, are governed by certain "Rules and Regulations" which are part of the contract between the parties. These rules and regulations contain the following provisions:

Article II provides:

"The objects of this department are to provide for the payment of benefits upon the death or disability of a contributing employé in all cases in which compensation or damages are not payable by the signatory company employing him."

Article VIII, § 1, provides:

"The benefits of membership in this Department in event of death or disability to compensation for which no payment is required by law to be made or is in fact made by any signatory company shall be"-and then follow provisions for benefits allowed for death and various forms of disability.

Article X, § 5, provides:

"No benefit shall in any case be payable for death or disability for which the employé or his dependents or next of kin shall make claim

against any signatory company to compensation, indemnity or damages or receive any sum from a signatory company, or on its behalf, or from any company, association, or funds, insuring or securing such payment, as or on account of compensation, indemnity or damages for such death or disability."

case where the employer is liable, either to common-law damages or to statutory compensation. In other words the plan is not one of absolute insurance, but one providing for cases in which the law does not provide for damages or compensation to be made by the employer, such, for example, as injuries received without negligence and not received in the course of employment or arising out of it. The injury received by plaintiff being one for which his employer was required by law to make compensation, the case seems clearly excluded from the contract with the Benefit Department.

The only difficulty in the case arises from the fact that the injury was caused by the negligence of a third party, namely, the railway company, and that plaintiff received damages from the railway company in excess of the compensation defendant employer was required by law to pay, and that under section 8229 this payment by the railway company relieved defendant employer of its liability to pay the compensation it would otherwise have been required to pay. We are of the opinion that these facts do not give

rise to liability under the contract with the Benefit Department.

As soon as the injury had occurred, there arose an obligation on the part of defendant to make compensation under the Compensation Act. Compensation was "payable," payPlaintiff and defendants are subject to the ment was "required by law to be made," and Workmen's Compensation Act. The Benefit from that fact it followed that there was no Department was organized, and its rules and claim to benefits under defendants' Benefit regulations adopted, after the compensation Department. Under section 8229 it was oplaw had been passed and before it went into tional with plaintiff to assert his claim effect. The operation of the department un-against the employer defendant or against der the Compensation Act was contemplated the railway company and he chose to purand the use of the term "compensation" in the sections above quoted no doubt has reference to the compensation provided by the statute.

The language of article II, and of section 1, article VIII, seems to us decisive of this case. The former section explicitly states the object of the department to be the payment of benefits in "cases in which compensation or damages are not payable by the signatory companies," and the latter section provides that benefits shall be paid to compensate for death or disability "for which no payment is required by law to be made by

sue the railway company. But his pursuit of the railway company did not create any new right against the defendants or their Benefit Department. It simply operated to discharge the liability of the employer defendant under the compensation statute. In our opinion the injury received by plaintiff was one for which defendant employer was required by law to pay compensation as those words are used in the provisions of the Rules and Regulations above quoted and that no claim existed against the Benefit Department on account thereof.

Reversed.

(175 N.W.)

In re PEAVEY'S ESTATE (two cases).
HEFFELFINGER et al v. APPLETON.

HEFFELFINGER v. SAME.

(Nos. 21331, 21332.)

(Supreme Court of Minnesota. Nov. 28, 1919.)

(Syllabus by the Court.)

1. STATEMENT OF CASE.

A will gave certain legacies and created several trusts directing the deposit of funds in trust, the income to be paid to beneficiaries for life. On the death of each legatee, the funds deposited for his benefit were to become part of the residuary estate. The will directed that the balance of the estate be transferred to a corporation to be formed. The residuary estate, made up mostly of the returned deposits, the will gave to the wife and children of the testator and provided, "that if either of my children shall die without leaving a child or children, then the share of such child shall become the property of the survivors, it being my intention that the surviving child, in case the others die without leaving a living child or children, shall have the whole balance of my estate." The executors, having in their possession a substantial sum of money, petitioned the probate court for an order making a partial distribution, and asking a construction of that clause of the will. The court construed the will and ordered the distribution.

2. COURTS 201-EXECUTORS AND ADMINISTRATORS 309 CONSTRUCTION OF WILL AND DISTRIBUTION BY PROBATE COURT; JU

RISDICTION.

The probate court had jurisdiction to construe the will for the purpose of determining to whom distribution should be made. Regular proceeding demands the entry of a decree of distribution by the probate court. That court alone can discharge the executor and determine the devolution of title to the property of the If the executor has transferred propestate. erty in anticipation of a proper decree, such decree may subsequently be made.

3. APPEAL AND ERROR 839(1)-DETERMIOF QUESTION NOT BEFORE TRIAL

NATION

COURT.

(Additional Syllabus by Editorial Staff.)

5. WILLS 452-CONSTRUCTION WITH REFERENCE TO TESTATOR'S DESIRE TO FAVOR OWN KIN.

The court will have regard for the common desire of men to favor with their bounty their own kin.

Brown, C. J., and Dibell, J., dissenting.

Appeal from District Court, Hennepin County; C. J. Rockwood, Judge.

Petition by Lucia L. Heffelfinger and others, executors of Frank H. Peavey, deceased, to the probate court for an order making a partial distribution of the residuary estate and for a construction of the will. Katherine Jordan Peavey Appleton appealed from the decree of distribution to the district court, and from a judgment reversing the decree and remanding the case the executors and Katherine Jordan Peavey Appleton appeal. Remanded, with directions to the district court to reverse its judgment and affirm the decree of the probate court.

Frank B. Kellogg and C. A. Severance, both of St. Paul, and Geo. W. Morgan, of Duluth (Richard Reid Rogers, of New York City, of counsel), for appellant-respondent Appleton. Lancaster & Simpson, of Minneapolis, for respondents-appellants.

HALLAM, J. [1] 1. Frank H. Peavey died testate December 30, 1901. He left two daughters and one son. The elder daughter was married to Frank T. Heffelfinger. They then had three children and now have four. The younger daughter was married to Frederick B. Wells. They then had one child and now have four. The son was married to appellant. He died childless in 1913. Appellant has since remarried. Mr. Peavey was engaged principally in the grain and elevator business and was possessed of large

wealth.

In his will he gave some specific legacies. He created many trusts, in each case, directing the deposit of money or securities with a trust company during the life of the beneficiary, and directing that, upon the death of the beneficiary the securities so deposited should become part of the residuary estate. He directed that $200,000 be placed in trust for the benefit of each of his three children, and that, if any child died leaving issue, the fund deposited for his benefit should be paid to such issue, if no issue 4. WILLS545(2)-OTHER CHILDREN TAKE then the fund should become part of the res

Where no question of fact is involved, and no appeal is made to discretion, and the question is purely one of law, this court may, with consent of all parties, determine a question not passed on by the trial court.

SHARE OF CHILD DYING WITHOUT ISSUE
WHETHER DEATH OCCURS BEFORE OR AFTER
TESTATOR.

The clause of the will above quoted, construed in connection with the balance of the will, means that, upon the death of one of the testator's children without issue, the others shall take his share, whether such death occur before or after the death of testator.

idue.

His son and sons-in-law were his partners in the firm of F. H. Peavey & Co. He directed that they continue the business for five years, and that, at the expiration of that time, they form a corporation, to which the executors should transfer all property then belonging to the estate, except that held in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Counsel for the executors take issue as to the correctness of this rule, and contend, that, where such language is used in a will, the court should interpret the devise over as taking effect, according to "the ordinary and literal meaning of the words," upon death at any time, whether before or after the death of the testator. Each contention has the support of much respectable authority. Many of the cases sustaining appellant's contention will be found cited in Fowler v. Duhme, 143 Ind. 248, 42 N. E. 623. See, also, Lawlor v. Helohan, 70 Conn. 87, 38 Atl. 903; Lumpkin The district court apparently understood | v. Lumpkin, 108 Md. 470, 70 Atl. 238, 25 L. R. the law as we do as to these propositions, | A. (N. S.) 1063; Dameron v. Lanyon, 234 Mo.