case.

upon this particular road, and that in so doing he not only endangered the lives of the passengers on the train, but also imperiled the lives of the section or construction men who were on the road, and who had the right to remain there until within ten minutes of the time for the regular approach of the train, and that the jury were justified in finding from this single act of Mulligan that he was reckless and careless to such a degree as to render him wholly incompetent as an engineer, and that the defendant could not, with notice of the incompetency thus shown, retain him in its service as an engineer without rendering itself liable to those of its employés who might thereafter be injured through his negligence. But we do not think so. It may be and doubtless is true that a single act may be such as to furnish an unerring index of the character of the actor, and, when considered by itself or in connection with the circumstances surrounding it, be sufficient to demonstrate the unfitness of a person to be placed in any position requiring great or even ordinary care in the discharge of its duties. Still the act relied upon here was not of a character to necessarily stamp Mulligan as unfit or incompetent to discharge the duties of an engineer. It did not of itself show him to be a grossly careless person, or reckless of the lives, either of the passengers committed to his charge or the lives of the employés of defendants at work upon the track. No accident occurred at that time, nor is there anything in the evidence to show that this result was due more to chance or good fortune than to the management of the engine and the actual condition of the road upon which the train was running; and, although men were liable to have been working on the track, it does not appear that they could not have been easily seen, and would not have had ample time to escape all harm after being warned by bell or whistle of the approach of the train. Upon the facts disclosed by

is not liable, although its general agent | Mulligan knew, or ought to have known, erred in judgment in retaining the switchman that it was dangerous to run a train so fast in the same service. Ordinary care and a reasonable exercise of discretion and judgment is all that is necessary to absolve the corporation from the charge of neglect of duty in such a The transaction upon which stress is laid, and by force of which it is now sought to charge the defendant with the consequences of the servant's neglect on this occasion, and the agency of the switchman in causing the accident on that occasion, was investigated immediately thereafter by the agent of the defendant whose general duties included such investigation, and who was authorized to employ and discharge switchmen at that point. He had the statement of the switchman himself, and in this record we have his sworn statement of the same transaction, and assuming, as we must, that the facts disclosed upon this trial were made known to the agent and representative of the defendant, then it was certainly a question of doubt whether the fault of that accident was upon the switchman or the engineer in charge of the train that was thrown from the track." The court held that there was not sufficient evidence to carry the case to the jury. In Holland v. Southern Pacific Co., 100 Cal. 240, 34 Pac. 666, the following language is used: "It was shown upon the trial that some three or four months prior to the collision resulting in the injury complained of by the plaintiff, Mulligan was the engineer in charge of one of defendant's trains running between Marysville and Oroville, and upon that occasion ran a train between Marysville and Moore's station, a distance of 12 or 14 miles, in 40 minutes, while the schedule time between these points was one hour. The plaintiff himself testified that in making about 11⁄2 miles of this run, over a portion of the road which was level, the train was driven at a speed of about 40 or 45 miles an hour; and he further testified that this road was not considered safe to run fast upon, because it was laid with light iron rails. There was but one train a day run over this road, but the evidence, the jury was not warranted hand cars used by construction men might have been upon the track at this time, and under the rules of defendant would have had the right to remain there until within 10 minutes of the schedule time for the arrival of the regular train. This run was made in daylight, and without accident or injury to any one. The plaintiff, although requested by Mulligan not to do so, notified the proper officers of defendant of the manner in which this train was run upon the occasion just referred to. • * This was all the evidence tending in any degree to show the incompetency of Mulligan as an engineer prior to the collision in which plaintiff received his injuries. Counsel for plaintiff in the very able brief filed in this court argue

in finding that the defendant failed in its duty to plaintiff or its other employés in not discharging Mulligan from further service as an engineer because of this one act, assuming it to have been a negligent one. The true rule upon this subject is stated with great precision and clearness by Allen, J., in delivering the opinion of the Court of Appeals of the state of New York in the case of Baulec v. New York, etc., R. R. Co., 59 N. Y. 363, 17 Am. Rep. 325, as follows." The court then quoted from the opinion in Baulec v. Railroad Company, and then proceeded: "And in Wharton on Negligence, § 238, it is said: 'If single exceptional acts of negligence should prove an officer to be incompetent, no officer could be retained in

some time to some degree negligent.' Hence, careful servant, he has a right to rely upon is has been properly held that intelligent the presumption that he will continue careful men of good habits, who are engineers, or and skillful, and, when notified that he has brakemen, or switchmen on railroads, are not become careless, he is not ordinarily bound necessarily to be discharged by their employ- to discharge such servant without an investiers for the first error or act of negligence gation into such charge, unless such notice is such employés commit, nor will railroad accompanied by such evidence as leaves no companies necessarily be liable for a second reasonable doubt of the truth of such charge. error or negligent act of a servant to all oth- A rule that would require the master to diser servants of such companies, when the charge a servant, careful and competent latter sustain damages by reason thereof." when employed, without investigation, upon a In Bailey on Master's Liability, 48, it is charge of carelessness, would be a harsh one, said: "Liability on the part of an employer and would often result in great injustice to for an injury caused by the incompetency of employés. Lake Shore & M. S. Ry. Co. v. a fellow servant depends upon its being es- Stupak, 123 Ind. 210, 23 N. E. 246; Ohio tablished by affirmative proof that such in- & M. R. Co. v. Collarn, 73 Ind. 261 [38 Am. competency was actually known by the mas- Rep. 134]; Lake Shore & M. S. Ry. Co. v. ter, or that, if he had exercised due and Stupak, 108 Ind. 1, 8 N. E. 630; Indiana B. proper diligence, he would have learned that & W. Ry. Co. v. Dailey, 110 Ind. 75, 10 N. which would charge him in the law with E. 631; Chapman v. Railway Co., 55 N. Y. such knowledge. When, however, it is not 579; Moss v. Railway Co., 49 Mo. 167 [8 shown but that due care was exercised in the Am. Rep. 126]; Blake v. Railway Co., 70 choice of a servant, no presumption of the Me. 60 [35 Am. Rep. 297]; McDowell v. Raillatter's unfitness arises afterwards. The pre-way Co. (Ky.) 5 S. W. 413; La Rose v. Bank, sumption is that, if competent and fit when 102 Ind. 332, 1 N. E. 805." At page 67, Id., he enters the service, he remains so. The master, in the exercise of his duty of supervision over the conduct of his servants, to ascertain whether they should be retained, must consider the nature of the service, as well as the dangers attending the employment or retention of unfit or incompetent persons. A closer supervision over the habits and conduct of an engineer is required than over a common laborer for the very plain and obvious reason that the dangerous consequences of neglect are likely to be so much greater in the one case than in the other. The greater the danger, the greater the care, is the rule. The presumption is that the master has exercised proper care in the selection of the servant. It is incumbent upon the party charging negligence in this respect to show it by proper evidence. This may be done by showing specific acts of incompetency, and bringing them home to the knowledge of the master or company; or by showing them to be of such nature, character, and frequency that the master, in the exercise of due care, must have had them brought to his notice. But such specific acts of alleged incompetency cannot be shown to prove that the servant was negligent in doing or omitting to do the act complained of. So it is proper, when repeated acts of carelessness and incompetency of a certain character are shown on the part of the servant, to leave it to the jury to determine whether Rolling-Stock Co. v. Wilder, 116 Ill. 100, 5 they did come to the knowledge of the master, or would have come to his knowledge if he had exercised ordinary care. In such case the presumption that the master had discharged his duty may be overcome to such an extent as to call upon him to rebut the proof made showing his negligence." In a note on page 64, Id., the following is said:

the text says: "When the injured servant knew of the incompetency of the offending servant as well as the master, or had equal knowledge, and, notwithstanding such knowledge continued in the employment without objection, he waives the negligence of the master in this respect." The note is as follows: "Laning v. Railway Co., 49 N. Y. 525 [10 Am. Rep. 417]; Wright v. Railway Co., 25 N. Y. 566; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 563 [67 Am. Dec. 312]. One of the rules of the common law still in force is as follows: 'If an employé knows that another employé is incompetent or habitually negligent, or the materials with which he works are defective, and he continues his work without objection, and without being induced by his employer to believe that a change will be made, he will be deemed to have assumed the risk of such incompetency, negligence, or defects, and cannot recover for an injury resulting therefrom. Kansas Pac. Ry. Co. v. Peavey, 34 Kan. 472, 8 Pac. 780; Kroy v. Railway Co., 32 Iowa, 357; Laning v. Railway Co., 49 N. Y. 521 [10 Am. Rep. 417]; McQueen v. Railway Co., 30 Kan. 689, 1 Pac. 139; Jackson v. Railway Co., 31 Kan. 761, 3 Pac. 501; Assop v. Yates, 2 Hurl. & N. 768; Hayden v. Smithville Mfg. Co., 29 Conn. 548; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 541 [67 Am. Dec. 312]; United States

N. E. 92; Hatt v. Nay, 144 Mass. 186, 10 N. E. 807; Lake Shore & M. S. Ry. Co. v. Knittal, 33 Ohio St. 468. In United States Rolling-Stock Co. v. Wilder, 116 Ill. 109, 5 N. E. 92, the duty of the servant was thus aptly expressed: 'All that the law demands of one thus employed is that he keep his eyes open to what is passing before him, and

receive with respect to the habits and characteristics of his fellow servants; and if from either of these sources of information he finds one of them, from incompetency or other cause, renders his own position extrahazardous, it is his duty to notify the master, and, if the latter refuses to discharge the incompetent or otherwise unfit fellow servant, the complaining servant will have no other alternative but to quit the master's employ. If he does not, he will be deemed to have assumed the extra hazard of his

position thus occasioned. The case suggested, it will be perceived, is one of mutual neg ligence. On the part of the master it is negligence to retain the incompetent servant in his employ. It is, on the other hand, negligence in the complaining servant to continue longer in the master's service, unless he intends to run the extra hazard himself." See, also, La Batt on Master and Servant, pp. 397, 423, 424; Railroad Company v. Do

lan, 32 Mich. 510.

If we apply these principles of law to the case in hand, it is not difficult to reach a result. The defendant employed an engineer shown to be fairly competent. He continued in their employ for a year, presumably be coming more competent. It is sought to show him incompetent by proving that the plaintiff upon one occasion overloaded his fire with coal and upon another occasion failed to shake down the fire when he ought. This may have established the fact that plaintiff was an inexperienced fireman, but falls far short of showing such a degree of incompetency upon the part of the engineer as to make it the duty to discharge him.

A general intent by testator, indicated in the will, as to his provisions for his sons. should be followed, if the will, reasonably construed, conforms to such intent.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 960; Dec. Dig. § 443.*] 3. WILLS (§ 561*)-CONSTRUCTION-PROPERTY DEVISED.

and the S. 12 of the N. W. 4, all of the S. A testator owning the S. E. and S. W. 14, E. 14 of section 21, and also a like quantity in section 22, devised all his realty to his wife for life, and gave to his son L., after her death, "the south part of the west half of the southeast quarter of section No. 21; also the west and the north part of the southeast quarter of section No. 21; also the west half of the tion No. 22," and to his son H. the W. 1⁄2 of northwest quarter of southeast quarter in secthe N. E. 14 of section 22, and provided that, at his death, it should be equally divided among his children, if any, and, if none, should descend to testator's heirs. L. was a helpless cripple, who lived with his mother until his death, and H., who was three years younger than L., was mentally incompetent, and one of his children der over after the life estate in the S. E. 4 was also incompetent. Held, that the remainof the S. E. 4 of section 21 was not devised to son L., testator dying intestate as to that

property.

[Ed. Note. For other cases, see Wills, Dec. Dig. § 561.*]

4. WILLS ($ 448*)-PRESUMPTION AGAINST IN

TESTACY.

While it is presumed that testator did not

intend to die intestate as to any of his estate, and a will susceptible of two constructions will be construed in favor of testacy, such construction must be reasonable and consistent with the general scope of the will and a fair construction of its provisions.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 964; Dec. Dig. § 448.*]

Appeal from Circuit Court, Cass County, in Chancery; L. Burget Des Voignes, Judge.

Action by Gardner Powell, administrator, against Hamaline Beebe. From a decree for Reversed, complainant, defendant appeals. and decree entered.

As to what occurred at Metz: There is no great conflict between Mr. Bolen and the plaintiff as to what occurred so far as they testify. It is doubtless true that, when Mr. Bolen stopped the train, he supposed the engineer was running past the station at Metz, and was likely to meet the north-bound train; but when he saw the engineer and talked with him, and saw the two cars at the north end of the siding, he was satisfied. The incident, when fully related, instead of showing that the engineer was incompetent, showed just the reverse; that he was quick to observe and to comprehend that he could not go into the siding from the north end because of the loaded cars, but must go in as he did go in, even according to the testimony of the plaintiff, by backing in from the south. We think the judge might very properly have instructed the jury that plaintiff had failed to show such incompetency of the engineer as to make it the duty of the MCALVAY, J. A bill was filed for the condefendant to discharge him. Having reached struction of the will of Abel Beebe, executed this conclusion, it is not necessary to pass July 31, 1871. He died May 6, 1881, leaving upon the other questions. surviving him a widow, Mary Beebe, and Judgment is reversed, and new trial or- three adult children, Lafayette, Hamaline, and Sarah Ann. At the time of the execu

dered.

Argued before OSTRANDER, C. J., and BIRD, MOORE, MCALVAY, BROOKE, BLAIR, STONE, and STEERE, JJ.

D. O. French, for appellant. Clarence M. Lyle and M. L. Howell, for appellee.

"To Elizabeth Beebe, wife of Hamaline Beebe, I do give and bequeath the sum of ten dollars ($10) to be paid to her by the execution of this my last will and testament as soon as convenient after my decease.

tion of this will, and also at the time of his, bequeath the use during his natural life of death, Abel Beebe was the owner in fee sim- the following described real estate, viz.: ple of the following described lands in Porter The west half of the northeast quarter of township, Cass county, viz.: The S. E. 4 section number twenty-two in township numof the S. E. 4 (except one acre in the south- ber 7, south of range thirteen west in the east corner thereof sold for a cemetery), the county of Cass, and state of Michigan, but S. W. 4 of the S. E. 14, and the S. 1⁄2 of at the decease of the said Hamaline Beebe the N. W. 4 of the S. E. 14, all of section the said real estate last described to be No. 21; and the W. 1⁄2 of the N. E. 4, and equally divided amongst his children if he the W. 1⁄2 of the N. W. 4 of the S. E. 14, leaves any, and in case he leaves no chilall of section 22. No dispute arises relative dren then said real estate last described to to the testamentary disposition of the land be equally divided amongst my heirs that located on section 22. It was used all to- may be living after his decease. gether as a farm with the buildings near the southwest corner of the 80-acre description. The above-described 99 acres of land situated on section 21 constituted the home farm of the testator, the house and buildings of such farm being located upon the S. E. 4 of the S. E. 4 of said section. These lands on this section were purchased by the testator in 1840 by deed, in which they were described as the "southeast quarter of the southeast quarter of section 21, and also the west half of the southeast quarter of said section 21, town 7 south, of range 13 west." He later sold the N. 1⁄2 of the N. W. 4 of the S. E. 4 of said section and one acre for cemetery purposes situated in the southeast corner of the S. E. 4 of the S. E. 14 of said section. The will we are asked to construe reads as follows:

"In the name of God, Amen, I, Abel Beebe, of the township of Porter, in the county of Cass, and State of Michigan, of the age of sixty-seven years and being of sound mind and memory, do make, publish and declare this my last will and testament in manner following, that is to say:

"Lastly after the payment of all lawful demands against my estate at the time of my decease and the widow's right therein of my personal estate, if any there be left, is to be equally divided between my two sons, Lafayette and Hamaline Beebe. And I do hereby nominate and appoint my wife, Mary Beebe, to be the executrix of this my last will and testament, hereby revoking all former wills by me made.

"In witness whereof I have hereunto set my hand and seal this 31st day of July A. D. 1876. Abel Beebe. [Seal.]" An attestation and publication clause is added, signed by two witnesses.

The files and records in this estate show that this will was admitted to probate June 15, 1881. The widow filed her bond as executrix, qualified, and entered upon the duties of such office. Appraisers and commissioners on claims were appointed and made "First. After the payment of all just and and filed their reports. No other proceedlegal demands against my estate, I do give ings were ever had in said estate. The exand bequeath unto my wife, Mary Beebe, the ecutrix up to the date of her death never use of all my real estate so long as she re- filed any report, and was never discharged. mains my widow, together with the provi- After her death no proceedings were taken sions the law makes for her in my personal to close the estate. The son Lafayette was estate. To my daughter Sarah Ann Beards- a helpless cripple, who had always lived at ley, I give and bequeath the sum of six hundred dollars ($600.00) over and above all sums of money she has heretofore received out of my estate or any notes now held by my son, Lafayette Beebe. The aforesaid sum of six hundred dollars to be paid to my daughter, Sarah Ann Beardsley, by execution of this my last will and testament as soon as convenient after my decease.

his father's house, and, after the father's death, continued to live there with his mother until his death. He was born in 1837 and died in 1894. The son Hamaline was about three years younger than Lafayette, and is still living. He is mentally incompetent, and now represented by a guardian. He was permitted to marry twice. One of his children was also an incompetent. The daughter Sarah Ann Beardsley was the eldest child of the testator. She died in 1908, aged 74. The administrator of her estate is complainant in this suit. During her lifetime the widow lived upon the farm homestead, and under the will had and was possessed of a life estate in all of the real estate of the testator. Upon the death of Lafayette, who never married, his estate and interest in these lands under the will (subject to her life estate) was inherited by his mother. It appears from the record that his estate was

"To my son Lafayette Beebe, I give and bequeath, after the decease of my wife Mary Beebe, the following described real estate, viz.: The south part of the west half of the Southeast quarter of section number twentyone also the west and north part of the south east quarter of section number twentyone, also the west half of the northwest quarter of southeast quarter in section number twenty-two. All in township number seven south of range number 13 west in the county of Cass and State of Michigan.

determined. The mother and no other person his death, and the acreage of the different had always been in possession of all testa- descriptions:

20 A.

40 A 39 A

80 A.

SEC 22

20 A

tor's real estate after the testator's death, and so continued in possession until her death in 1898. In 1895 the widow, Mary Beebe, described as "sole heir at law of Lafayette Beebe, deceased," "in consideration of the sum of one dollar, of love and affection, and for the purpose of making a division of the lands inherited from her son Lafayette," undertook to convey to Sarah A. Beardsley and Hamaline Beebe "under certain conditions and limitations" the land which complainant contends was devised by the testator to his son Lafayette. It purported to convey to Mrs. Beardsley the entire homestead farm and to Hamaline Beebe the 20 acres on section 22. This deed was made subject to many limitations and conditions on the part of Mrs. Beardsley. It was made while the aged grantor was sick in bed, and there is evidence tending to show that it was induced by undue influence. Hamaline at this time was under guardianship. Mrs. Beardsley died November 3, 1908, testate, and complainant administrator with the will annexed, claiming to have been licensed by the proper probate court to sell her real estate to pay debts ascertained that claim was made by Hamaline Beebe that he was the owner of an undivided one-half of the S. E. 14 of the S. E. 4 of section 21. He also ascertained what is claimed to be the faulty description in the will of this land in dispute. He then filed this bill to quiet title, and reThe devise in dispute reads: "To my son move cloud therefrom, and to have this will construed. Hamaline Beebe was made sole Lafayette Beebe I give and bequeath, after defendant. He has by his guardian answer- the death of my wife, Mary Beebe, the foled, traversing and denying the material alle-lowing described real estate, viz: the south gations of the bill of complaint, and claim- part of the west half of the south east quaring fraud on the part of his deceased sister in getting possession of his property. Issue was joined, and the hearing of the case resulted in a decree for complainant. Defendant appeals.

SEC. 21

ter of section number 21; Also the west and north part of the south east quarter of section Number 21; also the west half of the north west quarter of the south east quarter in section number twenty two." ComplainThe contention of complainant is that the ant's contention is that the clause of this dewill in question devised the S. E. 4 of the vise, "Also the west and north part of the S. E. 4 of section 21 to his son Lafayette. south east quarter of section number twenty Defendant contends that this description was one," describes the remaining 39 acres of the not included in the will. This is the only S. E. 4 of the S. E. 4 of said section; in question in the case, and must be determin- other words, the homestead 40 on which the ed by a construction of the will to ascertain farm buildings were located. Defendant the intention of the testator in describing urges that this is a forced, and not a natthe devise to the son Lafayette. Testator ural, construction; that taking this devise as owned two farms of 100 acres each (except a whole, and applying it to the land testator one acre out of the corner of the homestead owned on that quarter section, a reasonable farm), and also personal estate of an amount construction would be that the testator innot shown, but evidently in his opinion tended "the south part of the west half of enough to warrant a provision for the equal the south east quarter of section number division of a balance (after paying all law- twenty one" to describe the south 40 acres ful demands and $600 to his married daugh- of the said W. ; that the next clause, “Also ter) between his two sons. He had formerly the west and north part of the south east owned all the S. E. 4 of section 21, except quarter of section twenty one," was intended the N. E. 4. He had sold the N. 1⁄2 of the to describe the south 20 acres he owned in N. W. 4 of this quarter section and also one the N. W. 4 of such quarter section; that it acre out of the southeast corner of the S. E. is the only west and north part of that quar14 thereof. The following diagram shows all ter section he owned at the time, and cannot