substance that it was made in accordance | 13 Allen (Mass.) 334, 337. The first question with an agreement of the heirs, that they is as to the construction of the testator's were all fully cognizant thereof and consent- will, of which the superior court has jurised to the settlement, and that the considera- | diction, and authority, consequently, to protion was the relinquishment by J. Langdon ceed with such hearing as may be necessaof all claims upon the property of the estate, to which he had none under the will because his indebtedness was greater than the share to which he would otherwise have been entitled. The plaintiff Yates claims that the evidence tends to show that J. Langdon took no interest in his father's real estate, and that the matter of advancement had been settled by agreement. The defendant Ruschenberger contends that the matter of advancement to J. Langdon must first be determined in the probate court. Eastman, Scammon & Gardner, for Albert Yates. Frink, Marvin & Batchelder, for Charles C. Wentworth and Katherine W. Ruschenberger. PARSONS, C. J. An "advancement is a completed gift by the ancestor, to be accounted by the recipient as his share or part of his share in distribution, * * and is no part of the ancestor's estate at his death. It is not a loan to be repaid to the ancestor or to his representative after death. It is not a legacy paid in advance; * it cannot be understood that repayment was intended by the parties, nor, in the absence of express provisions in the statute to that effect, can it be inferred that the Legislature intended the advancement should be paid into the estate and considered as a part of the assets in distribution. The heir who has received an advancement, in accounting for it according to its value, as a part or the whole of his share, receives so much less of the residue of the estate than he otherwise would. It is deducted from his share of what estate is found at the ancestor's death. If, as in this case, the advancement exceeds what his share otherwise would be, he accounts for it as 'the whole' of his share, * but is not called upon to contribute something as a gift to make the other shares equal to the remainder of his advancement." Marston v. Lord, 65 N. H. 4, 17 Atl. 980; Dixon v. Marston, 64 N. H. 433, 14 Atl. 728; Fellows v. Little, 46 N. H. 27. J. Langdon's note held by his father evidenced a debt owed by J. Langdon, and does not prove, but disproves, a completed gift to him from the ancestor. The debt was not an advancement. Moreover, the children of Ebenezer take as devisees under the will and not as heirs under the statute. The law of advancement does not directly apply. Pub. St. 1901, c. 196, § 9; 14 Cyc. 165, and cases cited. But while a debt is not an advancement, a testator may doubtless direct that a debt due from a legatee be regarded as an advancement and so treated in making dis Lucy ry to construe the will. No question of construction has been transferred. The real estate of a deceased person not insolvent vests at once upon his death in his heirs or devisees, subject to be divested by proper proceedings in due course of administration. v. Lucy, 55 N. H. 9. Unless the will means to exclude J. Langdon, because of his indebtedness, from the list of the testator's children to whom he gave his estate in equal shares, upon the proof of the will one-seventh of the real estate vested in him, subject to his mother's life estate, and subject to be divested in whole or in part upon the final distribution of the estate, as his indebtedness might prove to be less than or equal to his interest as legatee. No proceedings were had in the probate court to ascertain the amount of Ebenezer's personal estate available for distribution, but the proof tends to show that each of the legatees settled with and discharged the executor. If any party interested in the estate and aggrieved by this discharge desires further administration, application therefor can be made to the probate court. Mercer v. Pike, 58 N. H. 286; Clarke v. Clay, 31 N. H. 393; Childs' Appeal, 23 N. H. 225; Kittredge v. Betton, 14 N. H. 401. Having discharged the executor, it was competent for the legatees to divide the estate, both personal and real, among themselves as they saw fit. Brewster v. Demarest, 48 N. J. Eq. 559, 23 Atl. 271. The superior court has jurisdiction to determine the existence of such an agreement and to give such effect to it as it may legally have. No question of administration is involved. The title as between the devisees would depend upon the agreement and not upon the will, except in so far as it was a part of the agreement. The plaintiffs' contention is understood to be that in the settlement of which evidence was offered J. Langdon agreed to release his entire interest in the estate. There was evidence that he released the executor and conveyed to his five surviving codevisees his interest in two parcels of land belonging to the estate, but made no conveyance of the other two. If the conveyance was made in full compliance with the agreement, the parties must have contemplated J. Langdon's ownership of one-sixth of the real estate not conveyed. If he agreed to convey and did not, the question would be whether performance could now be required. The agreement was made in 1873. As a general rule, courts of equity, equally with courts of law, are bound by the statute of limitations. Sugar River Bank v. Fairbank, 49 N. H. 131, 139. Whether the bar of the statute will prevent J. Langdon's heir from claiming the interest vey, or debar the heirs of the other five from | and the defendant brings exception. Excepdenying her claim to the same, or whether, tion sustained, and verdict set aside. if the statute does not apply, the five from the long delay have lost such remedy in equity as they might otherwise have had, are questions dependent upon facts as to which the case gives no information. The plaintiffs offered evidence tending to show that Ebenezer actually owned only onefourth of one of the tracts. The defendant Ruschenberger has no interest in this tract, as J. Langdon conveyed his interest in 1874, and no one has appeared to controvert the plaintiffs' claim. Case discharged. All concurred. GERRY v. KENNETT. (Supreme Court of New Hampshire. Dec. 6, 1910.) The controversy related to the location of a boundary line between the parties, who were owners of adjoining lots of land. The defendant claimed that a certain wire fence was on an agreed line. His evidence tended to show that the line upon which the fence was located had been surveyed and the fence established by the adjoining owners, and that for some years afterward the fence had been treated as the actual boundary, each party occupying up to the fence on his side. The defendant requested the court to charge as follows: "An agreed location of the boundary line may be found, not only from direct testimony as to the actual making of the agreement, but also from the conduct of the parties at and subsequent to the time at Carroll. which it is claimed the agreement was made. Evidence that the line was run by a surveyor in the presence and with the assistance of the owners, that a permanent fence was erected and has been maintained on the line so run for a number of years to the knowledge of both parties, and that they have since the erection of the fence occupied up to the fence on each side, and no farther, would warrant a finding that there was in fact an agreement that the line so run was the dividing line." 1. BOUNDARIES (§ 35*)—TriaL OF ISSUES-Ev IDENCE. In a writ of entry, where the controversy related to the location of a boundary line between the owners of adjoining lots, and in which there was evidence as to a former agreement between the parties as to the boundary, it was competent for the defendant to show that a surveyor, assisted by the parties, ran the line as claimed by the defendant, that a permanent fence built upon that line had been maintained for many years, and that the parties have occupied their respective lots up to the fence, and no further; the evidence having a direct tendency to show that the parties had agreed to the line which the surveyor ran. The court refused to give the requested instruction except so far as it is included in the charge as given, and the defendant excepted. The court charged [Ed. Note. For other cases, see Boundaries, the jury as follows upon this point: "The Cent. Dig. §§ 153-183; Dec. Dig. § 35.*] law is that, when two men having a dis2. BOUNDARIES (§ 41*)-TRIAL-INSTRUCTIONS. In a writ of entry, where the controversy pute about a line agree where it shall be and related to the location of a boundary line be- execute that agreement, it is binding upon tween the owners of adjoining lots, and in them and their successors, although it is a which there was evidence as to a former agreement between the parties as to the boundary, mere verbal understanding. That was the and as to a line run by a surveyor, an instruc- law governing the rights of the parties at tion that the jury were to consider on this ques- the time of the transaction involved when tion of agreement, not only what the parties this suit was begun. So you are to consider said at the time the line was run by the surveyor, but what they did at the time the work on this question of agreement not only what was being done, "and immediately afterward," the parties said at the time they obtained in executing the agreement, was erroneous, as Mr. Lord's services, but what they did at unduly limiting the jury's consideration of the the time the work was being done and imacts of the parties tending to prove the estab-mediately afterward in executing that agreelishment of the line by agreement. [Ed. Note. For other cases, see Boundaries, Dec. Dig. § 41.*] 3. TRIAL (§ 296*) - ERRONEOUS INSTRUCTION NOT CURED. An instruction given at the trial of a writ of entry to determine a boundary line, where there was evidence of a location of the line by acts of the parties, which was erroneous as limiting the consideration of the jury to acts of the parties immediately after their agreement, was not cured by the subsequent instruction that the jury should consider "everything which the circumstances and the evidence disclose." [Ed. Note. For other cases, see Trial, Cent. Dig. 88 705-718; Dec. Dig. § 296.*] ment, if you find that it was executed. You will take into consideration everything which the circumstances and the evidence disclose in this case-what the evidence as given you upon the stand shows was done." Frank Weeks, Arthur L. Foote, and Sewall W. Abbott, for plaintiff. Walter D. H: Hill and Niles & Upton, for defendant. WALKER, J. The instruction requested should have been given. It is not claimed by the plaintiff that there was no evidence to which it was applicable, or that it is an Transferred from Superior Court, Carroll incorrect statement of the law in view of County; Chamberlin, Judge. Writ of entry by James O. Gerry against Sewell F. Kennett. Verdict for the plaintiff, the defendant's evidence; but it is argued that the requested instruction was substantially incorporated in the charge which the court gave. Upon the issue whether the parties had established the line between them by parol agreement (Bartlett v. Young, 63 N. H. 265), it was clearly competent for the defendant to show, as bearing on the probability that such an agreement was in fact made, that a surveyor, assisted by the parties, ran the line as claimed by the defendant, that a permanent fence built upon that line has been maintained for many years, and that the parties have occupied their respective lots up to the fence and no farther. The evidence had a direct tendency to show that the parties agreed to the line which the surveyor ran. Their acquiescence would be evidence of an assent or a meeting of minds. Hobbs v. Cram, 22 N. H. 130; Dudley v. Elkins, 39 N. H. 78; Wheeler v. Wilder, 61 N. H. 2, 7. The defendant was therefore entitled to have the jury instructed that the acts of the parties after the running of the line by the surveyor and the building of the fence, as indicated by the evidence, tended to prove the establishment of a line by agreement. But the charge as given limited the jury to a consideration of the acts of the parties at the time the line was run by the surveyor "and immediately afterward." If the court meant by this expression that the building of the fence on that line might be considered as some evidence of an agreement, it did not amount to an instruction that the jury might also consider upon that question evidence of the acts of the parties in maintaining the fence for many years and in occupying their lots up to the fence, and no farther. The jury would naturally understand from the charge that they were limited in their consideration of the evidence to acts of the parties at the time of and "immediately" after the running of the line. In this view of the case, it is clear that a mistrial might naturally result. Nor can it be said that the error was cured by the general instruction that the jury should consider "everything which the circumstances and the evidence disclose." The court by this remark did not intend, and it is not probable the jury understood they were authorized by it, to extend their inquiry be yond the limit laid down by the court in the previous sentence. Exception sustained. All concurred. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 299, 308; Dec. Dig. § 150.*] 2. MASTER AND SERVANT (§ 278*)-INJURY TO SERVANT-NEGLIGENCE EVIDENCE. caught in a belt and drawn on a revolving shaft while attempting to place the belt on the pulley on the shaft, and on a pulley on a machine to operate the machine, evidence held to justify a finding that the servant did not know, and was not bound to know, that if the belt happened to stick to the driving pulley he was liable to be caught in it and killed, so that the master failing to notify the servant of the danger was guilty of negligence. In an action for the death of a servant Servant, Cent. Dig. § 972; Dec. Dig. § 278.*] [Ed. Note.-For other cases, see Master and 3. MASTER AND SERVANT (§ 281*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE-EVI DENCE. Proof that a servant an instant before he was killed was doing his work in the usual way justifies a finding that he was free from fault contributing to his death. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. $ 987-996; Dec. Dig. § 281.*] 4. MASTER AND SERVANT (§ 276*)-INJURY TO SERVANT SCOPE OF EMPLOYMENT - EVIDENCE. Where, in an action for the death of a servant while attempting to put a belt on pulleys to start a machine, the evidence showed that it was customary for the spare hand who usually started the machine to call on any of the men who worked in the room to help him to start it, and that the custom had so long continued that the master ought to have known of it, a finding that the servant was acting within the scope of his employment at the time of his death was justified, though the foreman had told the spare hand to get some one other than the servant to help him start the machine, it not appearing that the instruction had been communicated to the servant. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 952; Dec. Dig. § 276.*] On Rehearing. 5. MASTER AND SERVANT (§ 288*)-INJURY TO SERVANT-ASSUMPTION OF RISK-QUESTION FOR JURY. A servant is chargeable with knowledge of what he has seen and of the conclusions reasonVerdict set aside. able men must draw therefrom, but, beyond this, the question of what knowledge he is chargeable with, as bearing on his assumption of risk, is for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1072-1075; Dec. Dig. § 288.*] 6. MASTER AND SERVANT (§ 280*)-INJURY TO SERVANT-ASSUMPTION OF RISK-EVIDENCE. In an action for the death of a servant caught in a belt and drawn on a revolving shaft while attempting to place the belt on pulleys to start a machine, evidence held to justify a finding that he did not assume the risk of injury by being caught and dragged by the belt. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 983; Dec. Dig. § 280.*] 7. EVIDENCE (8 571*)-EXPERT TESTIMONY-first attempted to place it upon the pulleys, EFFECT-ASSUMPTION OF RISK BY EMPLOYÉ. it had pulled off the conveyor pulley and The question of what the average man will appreciate, as bearing on the assumption of risk, snapped back toward and under the revolv is for the jury, and an expert giving his opin- ing shaft. There was no testimony that he ion that a danger was such that any man ought had ever seen the belt snap back and wind to understand that it was hazardous is not conup on the revolving shaft, either when he clusive on the jury. was putting it on alone or. when assisting others in doing so; but it appeared that this had occurred with most of the men who testified at the trial, when they were doing this work. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2395; Dec. Dig. § 571.*] 8. MASTER AND SERVANT (§ 280*)-INJURY TO SERVANT ASSUMPTION OF RISK-EVIDENCE. Where, in an action for the death of a servant caught in a belt and drawn on a revolving shaft, while attempting to place the belt on pulleys to start a machine, an expert testified that a man ought to understand that he might be caught, and that a man to avoid injury must use care and be on his guard, the jury could find that the danger called for warning and instruction, so that the servant, not warned or instructed, did not assume the risk as a matter of law. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 983; Dec. Dig. § 280.*] Transferred from Superior Court, Coos County; Wallace, Judge. Sullivan & Daley and Burritt H. Hinman, for plaintiff. Rich & Marble and Drew, Jordan, Shurtleff & Morris, for defendant. YOUNG, J. The conveyor pulley is on the end of the shaft. Consequently, if the belt sticks to the driving pulley hard enough to pull it away from the man who is attempting to put it on the conveyor pulley, there is nothing to prevent it from winding up on the driving pulley, and, if it happens to catch him, winding him up in it. It is the danger peculiar to this condition of the defendants' Action on the case by George E. Bouthet, administrator of Emerigile Rousseau, deceased, against the International Paper Com-instrumentalities of which the plaintiff company for the death of the deceased. There was a verdict for plaintiff, and the cause was transferred on defendants' exception to the denial of a nonsuit. Overruled. The evidence tended to prove the following facts: In the defendants' mill at the time in question there was a revolving shaft with a fixed pulley upon it, and some 15 feet distant therefrom was another shaft equipped with a similar pulley, which when in motion operated a sawdust conveyor. The sawdust conveyor was not always in motion, and it was customary for the men, when starting it up, to place a belt upon the pulley on the revolving shaft and then upon the pulley that operated the conveyor. The belt when placed upon the pulley on the driving shaft and drawn back toward the conveyor pulley was liable to stick and snap back toward the revolving shaft and wind up on it, and such an occurrence was rendered more probable from the fact that the pulley on the conveyor shaft overhung the bearing in which the shaft ran. It was while Rousseau was attempting to do this work that he was caught in the belt, drawn upon the revolving shaft, and killed. There was no evidence that Rousseau was notified of the danger by the defendants, or that it was ever spoken of in his hearing. He was a man 22 years old, of average intelligence, and had been in the defendants' employment for two years. For a year or a year and a half of the time he had acted as spare man, and in this capacity it was his duty to assist in putting on the belt. The conveyor had to be started up some days as often as three times, while at other times not oftener than once in three days. Rousseau had adjusted this particular belt many times. On the day of the accident, when he plains. It was the defendants' duty to do what the ordinary man would do under these circumstances to enable Rousseau to do his work in safety; but as the law is usually administered, it cannot be found they failed to perform that duty unless this condition was an abnormal one, and the risk incident thereto one of which they did, and he did not, know. It is conceded it can be found that this condition was abnormal, and that they knew of the risk incident thereto; consequently, it can be found that they were in fault, if there is any evidence tending to prove that Rousseau did not know of it. The only knowledge of belts and the dangers incident to using them which Rousseau possessed was what he had acquired while working in the defendants' mill. Although he had seen this belt pull away from him on one or two occasions, he had never seen it wind up on the driving pulley as it did on the day of the accident. Notwithstanding the defendants knew that that was liable to happen, they never told him of it, and it is not common knowledge that such is the fact. From these facts it can be found that Rousseau neither knew nor was in fault for not knowing that if the belt happened to stick to the driving pulley he was liable to be caught in it and killed. Although no one saw Rousseau when he was caught in the belt, he was seen only an instant before and at that time was doing his work in the usual way; consequently it can be found that he was free from fault. 2. It can be found that it was customary for the spare hand-the man who usually started the conveyor-to call on any of the men who worked in the room to help him start it, and that this had been the custom so long that, if the defendants did not, they, he acquired was not that of a trained meought to have known of it. 3. The jury therefore could find that Rousseau was acting within the scope of his employment at the time he was killed, even if it also found that the foreman told the spare hand to get some one other than Rousseau to help him start the conveyor; for if that instruction was given it was not communicated to Rousseau. chanic, but only that of a common laborer who sometimes did this particular piece of work. The danger he finally encountered was not frequently met with, and apparently was not a subject of comment among his fellow workmen. If it conclusively appears that Rousseau knew the belt might wind up on the driving shaft, it does not so appear that he understood and appreciated the dan Defendants' exception overruled. All con- ger in which this situation involved him. curred. After the foregoing opinion was filed on June 7, 1910, the defendants moved for a rehearing, and argument was invited upon the question of assumption of risk. Drew, Shurtleff & Morris and Rich & Marble, for the motion. Sullivan & Daley, opposed. The plaintiff's expert testified on cross-examination that in his opinion the only danger was that of being caught by the moving belt, and that any man ought to understand this was hazardous. From this the defendant argues that there is nothing in the case for the plaintiff upon the issue of appreciating the danger. But on the question of what the average man would appreciate, the millwright of long experience is not an expert who can inform the jury so as to preclude them from using their own knowledge on the subject. On the contrary, they are the true experts on this subject; while he, because of his familiarity therewith, is not qualified as they are to accurately gauge the average capacity to comprehend strange appliances and unknown forces. But if the expert's testimony is to be taken at its face value, it is not fatal to the plaintiff's case. In answer to an inquiry by the court as to whether he meant a man ought to understand he might be caught and dragged, or merely caught, he answered, "Might be caught." Again, when asked if all that was needed was that the men be careful, he said they "must be using care and on their guard." This is the crux of the matter. Something beyond the care of the ordinary man was needed-something the ordinary man would not know was needed. Plainly enough, he was seeking to describe a situation which might well be found to call for warning or instruction to the men set at the work in question. Rehearing denied. All concurred. PEASLEE, J. It is argued that it conclusively appears that the deceased knew of and appreciated the danger. Is this the only conclusion reasonably to be arrived at upon a fair consideration of the evidence? It is to be borne in mind that the danger was an obscure one. It was not something which the ordinary man would see and understand upon an inspection of the work place. The danger was a transient one, occurring at varying intervals, and from causes not readily apparent to an ordinary laborer. The defendant's theory is that, because the application of the law of chances shows a preponderance in favor of the proposition that Rousseau had seen the belt wind up on the driving shaft, therefore it must be held as matter of law that he knew and appreciated the danger of being caught in and drawn along with the belt. If it is the law that in a case like this the rule of average is the only one that can be applied, and that a conclusion not based thereon would be mere conjecture, it would follow that Rousseau must have at some time seen the belt wind up when it snapped back. Must it be found from this fact that he understood and appreciated the danger? So far as the case shows, he was absolutely without experience on this subject. He is to be charged with knowledge of what he saw and of the conclusions reasonable men must draw from what he observed. Beyond this, the question must be left to be determined by the triers of the facts. judge that he is not disqualified, or in excluding In order to review rulings by the trial It cannot be held that the likelihood of a testimony offered on behalf of appellant, or person being caught and dragged by a belt in that he was without power to exercise his disthis way is one that men in general under-cretion to receive from appellant's counsel after stand. There is nothing in the evidence to show that Rousseau had acquired such an understanding, but, on the contrary, much that points to the conclusion that he had not. He had been employed in the mill as a laborer a year and a half. On occasions of varying frequence, he had been called upon to put this belt on to the pulleys. The knowledge FARRINGTON v. CHEPONIS & PANA- (Supreme Court of Errors of Connecticut. 1. APPEAL AND ERROR (8 671*)-RECORDNECESSITY OF FINDING. the jury, a finding detailing the action of the the arguments had begun requests to charge court is necessary. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. § 671.*] 2. APPEAL AND ERROR (8 694*) — RECORDCERTIFICATION OF EVIDENCE. On appeal from the direction of a verdict, nothing further is necessary than a certification |