Sinton v. Boyd.

dren, one of which was James S. Boyd, who died, leaving a widow and one child, Kate J. Boyd, in 1836, prior to the death of the widow of the testator.

The leasehold was sold to Mary Boyd, the widow, with the consent of all the heirs except Kate J. Boyd, who was a minor. This leasehold she afterward disposed of, and it was in turn sold by her grantee to David Sinton, the plaintiff in error.

The plaintiff recovered a judgment below, and to reverse this judgment this petition in error is prosecuted.

Aaron F. Perry, for plaintiff in error.

Lewis E. Mills, for defendant in error.

DAY, J. Numerous perplexing questions have been presented in this case, but they are all founded on the assumption that Kate J. Boyd derives title under the will of her grandfather, John Boyd. If this assumption be not well founded, there is an end of the case. This, then, is the prime question to be considered.

There is no express devise to grandchildren; nor is there any thing in the will that will admit of that construction. The devise is to "children;" if, therefore, she has any interest in the estate in controversy she derives it by descent from her father, James S. Boyd, who was the child of the testator. If nothing was vested in him at the time of his death, she can inherit nothing from him.

The question, then, is whether an interest under the will vested in James S. Boyd. He survived the testator, but died before the widow, "after" whose death the property was to be divided. The property was to be divided equally among the testator's children, 'or the survivors of them." It is necessary, therefore, to ascertain what was the point of time at which the survivorship was to be determined. Was it at the decease of the testator, or of his widow, who had a life interest in the property? This depends entirely upon the intention of the testator. In seeking that, we arrive at the same result, whether we apply the settled rules of the law, or are guided only by a study of the will itself.

The ancient holdings on this subject have been much modified by more recent decisions. Also the soundness of the distinction, taken between real and personal estate, has been questioned, until it has nearly or quite faded away. 2 Jar. on Wills, 650; Hawkins' Treat. 262.

Sinton v. Boyd.

The case of Young v. Robertson, 8 Jurist (N. S.), 825, decided in the house of lords in 1862, is directly in point. It was a will of real and personal estate to trustees, to account to the widow during her life, and, after her death, to certain grand nephews and nieces, or their survivors.

In that case it was held, "upon the authorities, as well as upon principle," to be the rule, "that where there is a clause of survivorship, prima facie survivorship means the time at which the property to be divided comes into enjoyment — that is to say, if there be no previous life estate at the death of the testator; if there be a previous life estate, then at the termination of that life estate:" or (as the rule is more briefly stated by the lord chancellor), that words of survivorship should be referred to the period "for the payment or distribution of the subject-matter of the gift." This is declared by him to be "the rule that is now finally established" in England.

This undoubtedly is the general rule recognized in this country, subject, of course, to such modifications as the paramount rule, giving effect to the intention of the testator, may require.

We think the general rule is the law applicable to this case, and that it is in harmony with the obvious purpose and intent of the testator, as gathered from the will.

Nor are we embarrassed by any question as to the state of the legai title to the leasehold in controversy during the life-time of the widow, for this court, in the case of Boyd v. Talbert, 12 Ohio, 212, held that it was vested in the executors. The legal estate, then, was not vested in the father of Kate J. Boyd during his life.

Nothing is given directly by the will to the children, except the library to the sons, and the household furniture contingently to the daughters. Every thing else is given to the wife, "to be used, employed and kept by her during her natural life for the support of herself and the support and education of the minor children." It is only that which may be " remaining" after her death that he directs to be divided among the children. Their interest, then, attaches at her death, and to that only which may be then remaining.

This view is strengthened by the provision in the will for the repayment of any advances the widow might make to the sons; nor does this provision conflict with that requiring the division to be made only among his children who might be alive at the period fixed for the distribution.

It is clear, then, that during the life of the widow no interest in

The Little Miami Railroad Company v. Wetmore.

this leasehold vested in the father of Kate J. Boyd. He died before the time for the distribution of the estate arrived; therefore, nothing vested in him or his heir, for the distribution was to be made only among the "children" of the testator that might be surviving at

the time mentioned in the will for the distribution.

The testator, it would seem from the record, was an educated man, and, from the manner in which he has frequently used the words, "survivors of them," in his will, we cannot but think that he fully understood their meaning, and that he intended to use them in their ordinary sense, when applied to his children, as he clearly does, in the same sentence, when applied to his executors.

He directs his "executors, a majority or the survivors of them," to make the division "equally among all my children, male and female, or the survivors of them." The distribution to be made by the executors to the children, if all of each class are alive when the period for the division arrives; if not, then it is to be made by one class of survivors to the other class of survivors that is, by those

of one class then living to those of the other class then alive.

The testator has used apt words to confine the distribution of his property to his own children; and, in the absence of any thing indicating a contrary intention, it is but reasonable to presume that he intended what is imported by their ordinary sense.

We are, therefore, constrained to hold that the plaintiff, in the court below, had no interest in the leasehold for which she brought suit. It follows that it is unnecessary to consider the other questions made in the case, and that the judgment of the court below must be reversed.

THE LITTLE MIAMI RAILROAD COMPANY, plaintiff in error, v.

WETMORE.

(19 Ohio St. 110.)

Master and servant - Liability of railroad company for assaults of servant. The plaintiff, a passenger on defendants' road, applied to the baggage-master to have his trunk checked, which not being promptly done, the plaintiff became angry and used threatening and abusive language, whereupon the baggage-master seized a hatchet and struck him. Held, that the company was not liable.

The Little Miami Railroad Company v. Wetmore.

THIS was an action in the court below, by defendant in error, against the railroad company, to recover damages for injury occasioned by an assault committed by one of the agents of the company, as averred, while he was acting within the scope of his employment. The facts were, that Wetmore went with his baggage to the depot of the railroad company, and requested the baggage-master, one Halpine, to check his baggage. Wetmore testified that Halpine replied he would "check it when he got ready," and continued checking other baggage, which was arriving after that of witness. After waiting some time, and making several requests to have his baggage checked, witness went around to the inside of the counter, on which baggage was placed, and repeated his request, whereupon he was seized by Halpine and violently pushed out of the inclosure. Witness then came up again, outside of the counter, and, shaking his finger in Halpine's face, said: "You d-n scoundrel, you shall suffer for this! What do you mean by annoying me in this manner? Why don't you check my baggage?" whereupon Halpine took up a hatchet and struck witness on the head. Halpine testified that when witness came up to him first he was getting checks for some other passengers, who were there first; that Wetmore was importunate, and came inside the inclosure and used abusive language; that he had merely taken him by the arm and led him out, and that Wetmore then came up with his hand under his coat, so that witness thought he was going to draw a weapon, and witness took up the hatchet and pushed him away with the end of it.

The jury found a verdict for plaintiff for $7,000, on which the court entered judgment. The case was now before this court on writ of error.

D. Thew Wright, for plaintiff in error, cited Smith on Mas. and Serv. 183 (2d ed.); Story on Agency, § 452; Croft v. Alison, 4 B. & Ald. 590; McManus v. Crickett, 1 East, 67; Cox v. Kehey, 36 Ala. 340; Steamboat Ohio v. Stunt, 10 Ohio St. 582; Steamboat Messenger v. Pressler, 13 id. 255; Steamboat Ocean v. Marshall, 11 id. 379: Ellis v. Turner, 8 D. & E. 533; Foster v. Essex Bank, 17 Mass. 509; Mechanics Bank v. Bank of Columbia, 5 Wheat. 326; Crocker v. „V. L. R. R. Co., 24 Conn. 249; Vanderbilt v. Richmond Turnpike Co., 2 id. 479; Wright v. Wilcox, 19 Wend. 343; Roe v. B. R. R. Co., 7 Eng. L. & E. 546; Goff v. Great N. R. R Co., 3 E. & E. 671; E. C. R. R. Co. v. Brown, 6 Exch. 314; Poulten v. L. & N. R. R. Co., L.

The Little Miami Railroad Company v. Wetmore.

R. (2 Q. B.) 531; Mitchell v. Crassweller, 13 C. B. 237; Story v. Ashton, L. R. (4 Q. B.) 476; Williams v. Jones, 11 J. N. S. 843; E. & C. R. R. Co. v. Baum, 21 Ind. 70.

H. L. Burnett and John F. Follett, for defendant in error, cited Fennsylvania Railroad Co. v. Vandiver, 42 Penn. St. 371; Joel v. Morrison, 6 C. & P. 501; Sleath v. Wilson, 9 id. 607; Powell v. Devency, 3 Cush. 300; Redf. on Rail., § 130 (4th ed.); Howe v. Newmarch, 12 Allen, 49; Weed v. P. R. R. Co., 5 Duer, 193; Moore v. F. R. R. Co., 4 Gray, 465; Hewett v. Swift, 3 Allen, 420; Meyer v. Second Avenue Railroad Co., 8 Bosw. 305; Seymour v. Greenwood, 7 H. & N. 355; Korah v. Ottawa, 32 Ill. 121; Chicago Railroad Co. . McCarthy, 20 id. 385; Whatman v. Pearson, L. R. (3 C. P.) 422.

WHITE, J. There is no controversy as to the general rule by which the question of the liability of the railroad company for the act complained of in the petition is to be determined. The difficulty arises in the application of the rule to the peculiar facts of the case. Halpine, the person guilty of the wrong, as the servant of the company, was charged with the duty of checking the baggage of passergers; and whatever liability, if any, devolved upon the company for the consequences of his wrongful acts, grew out of the relation of master and servant which existed between him and the company.

The general rule as to the liability of the master for the wrongful acts of his servant is thus stated by Mr. Smith in his work on master and servant: "A master is ordinarily liable to answer in a civil suit, for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in his master's service. The maxims applicable to such cases being respondeat superior, and that before alluded to, qui facit per alium facit per se. This rule, with some few exceptions, which will hereafter be pointed out, is of universal application; whether the act of the servant be one of omission or commission, whether negligent, fraudulent or deceitful, or even if it be an act of positive malfeasance or misconduct, if it be done in the course of his employment, his master is responsible for it civiliter to third persons." Smith's M. & S. s. p. 151.

But, to make the master responsible, the act of the servant must be done in the course of his employment, that is, under the express or implied authority of the master. Beyond the scope of his employ