Du Bois v. Ray.

words he used to designate a class of persons then answering the description.

It must, however, be conceded that the use of the word "leave," in this same clause, "to the children whom my brother Robert Ray, and my sister Mary, the wife of John A. King, may leave, or the child or children of any who may die before me," if that word must be taken in the sense of leave at their death, is fatal to this construction. But I do not deem it necessary so to read it, nor that the testator so used it. Indeed, the very designation of the children of deceased children who were to take, is inconsistent with that reading; they were those only whose parents died before the testator, they were to be those living at his death-and the general purpose of the testator is, in this particular, I think, sufficiently clear to indicate that he used the word. in the sense of the word have, as a then present fact-and so read, the whole will become harmonious, conformable to the general design of the testator, and not inconsistent with any particular intent which appears in any part of the will.

Whether or not, at the moment of penning the will, the thought was passing in his mind that he should survive his brother and sister, and led to his employment of a word which was not apt to express his meaning, (if they survived him,) the whole sentence does not indicate to my mind that he meant to make their death before himself, any condition of the devise or of its construction; nor that he meant, by the use of that word, to postpone the determination of the children who should take, to a period so remote that his whole purpose in regard to his nephews and nieces might be thereby defeated.

It is to be assumed, as a rule of construction, that the testator knew the law, and if the language he employs be susceptible of a reading consistent with the law, we ought to assume that he so used it, and the intent to fix the time of his own death as that at which the persons who should take, as descendants of his brother and sister, were to be ascertained, seems to me so clearly indicated, that in the

Du Bois v. Ray.

gift over, the word "leave" has no operative meaning either as a condition or as a postponement of the time when those persons are to be ascertained, or, as deferring the vesting of the estate, or interest, so devised, until after his brother and sister's death.

The testator, in this sixth clause, has created the difficulty by expressing himself with greater conciseness than clearness, and yet, I think, the intent is apparent.

In this view of the construction of the will, the objection that the will is invalid in respect of the limitation over by the sixth clause, wholly fails; and (no child of the testator's brother or sister having died, leaving issue, in the lifetime of the testator) the judgment appealed from should be affirmed, except so far as it declares that the estate and property which, upon the death of Madame de Courval without issue, vests in the children of Robert Ray and Mary King, vests in those children living at the happening of the contingency, and that it is subject to let in after-born children. In those particulars it should be modified so as to declare that, in the event of the death of Madame de Courval without issue, such estates and property are by the said will limited over to the children of the said Robert Ray and Mary King, who were living at the death of the testator.

The foregoing view of the construction of the will in question, not being in accordance with the opinion of my associate, brother ROBERTSON, and the case having been submitted to four of the justices, I add a few observations upon the question, whether, by the construction of the will, the estate was not limited, on the death of Madame de Courval, to such children of Robert Ray and Mrs. King, as should then be living, and the issue, if any, who should die before the testator?

First. It is obvious that if this be the true construction, then, as before, the will is valid, and the limitation over good. For, in that view of its meaning, the estate will vest absolutely at the death of the survivor of the testa

Du Bois v. Ray.

tor's two children, and an absolute fee in possession can then be conveyed. But,

Second. If we depart from the time of the testator's death, as the period indicated for ascertaining those who are to take under the limitation over, I find no words of the will indicating the happening of the contingency as the time to which the word leave or have is to refer.

And there is, therefore, greater difficulty, not only in gathering from the language itself, that the testator meant to designate the children which his brother and sister should have, but also in saying, if that construction should obtain, that it did not open to let in after-born children, which would be equally fatal to the validity of the will, as if it were held that it could not be determined until the death of Robert Ray and Mrs. King, who should take, and they should be living at the death of Madame de Courval.

I still prefer the former construction. Nevertheless, if my brethren agree that the time of the death of Madame de Courval is the period at which the persons who are to take, is definitely and finally settled, and that they are those who are then living, the will is sustained. The result would not, as I perceive, affect the management of the estate henceforward, during the life of Madame de Courval, otherwise than the view I have above taken, and I should be disposed to concur, for the purpose of a determination which the parties have apprised us they wish to present to the court of last resort for review and adjudication.

Kohler v. Wright.

CHARLES KOHLER, Plaintiff and Respondent v. Garret P. WRIGHT, CHRISTOPHER P. JONES, CHRISTOPHER PORT and EDWARD JONES, who were impleaded with EDWARD A. DECKER, Defendants and Appellants.

1. Where, on appeal from a judgment on the decision of a referee, the case states that the cause was submitted, "the counsel for the defendants admitting that the defendants are liable for the payment of a bill," which was one of the bills for the payment of which the plaintiff claimed to recover, the defendants on appeal cannot question the correctness of the decision of the referee allowing such payment to the plaintiff, although the defendants, after such submission of the cause, handed to him written points assailing the plaintiff's claim in respect thereto.

2. As a general rule, all the owners of a vessel who assent to the employment of the vessel, and share the proceeds of such employment, are prima facie liable for repairs and supplies to the vessel, and for the wages of the seamen while the vessel is employed for their benefit.

3. Where, in such case, the master of a vessel, by the express direction of one of such part owners, pays a sum of money to satisfy the claims of seamen for their wages on a voyage immediately preceding that for which such master is employed-which claim another part owner, who was captain on such previous voyage, states to be correct-the master making such payment is entitled to recover the sum so paid, in an action against all the

owners.

4. Neither the claim of the seamen, nor of the master making such payment, can be defeated by proof of a private arrangement between such owners, that the wages should be paid out of the share of the earnings belonging to the part owner who was captain on such previous voyage.

(Before HOFFMAN and WOODRUFF, J. J.)

Heard April 16, decided July 7, 1860.

THIS action was brought by the plaintiff to recover from the defendants, as owners of the schooner "William B. Marsh," for services, and also for moneys paid out for their benefit. He had been mate of the vessel until March, 1856; down to which date, one of the part owners, the defendant Decker, was the captain or master. On and after that date, the plaintiff was employed and sailed the vessel as master. While employed as master, the plaintiff paid a bill to one Francis, for cups and saucers, broom, paints,

Kohler v. Wright.

putty and other small articles, furnished by Francis for the use of the vessel, amounting to $4.95.

He also paid several small sums claimed by three of the seamen, (Jones, Patten and Ward,) for wages accrued while Decker commanded the vessel, and due when he left in March, 1856, amounting to $38.54. The proofs showed that the defendant Decker, examined the bills of those three seamen, (which the plaintiff showed him,) and said that they were correct; and that when the seamen demanded their wages, and threatened to libel the vessel therefor, the plaintiff applied to Jones, one of the other owners, for directions, and he instructed him to pay them, and he did 80. The defendant Decker, though served with process, did not put in an answer. The other defendants denied the plaintiff's claim. The action was referred to Henry J. Scudder, Esq., before whom it was tried, on and after the 17th of February, 1859.

The defense was, that one of the owners, Decker, ran the vessel when these wages accrued, on shares, and that by the arrangement with him, he was to pay the wages and expenses out of his share of the proceeds; and that when the plaintiff took the command, he took the vessel upon the same terms while he acted as master.

The case made and settled by the referee, states that the cause was submitted "after having been summed up, and the counsel for the defendants who had answered in this action admitting that the defendants were liable to the plaintiff for the payment of Francis' bill," ($4.95.) But the case also states, that after the submission, the counsel "handed in to the referee written points which discussed the liability of the defendants for the bill of Francis;" those points denied such liability. The opinion of the court also states some of the facts proved on the trial.

The referee, upon all the evidence in regard to the claim of the plaintiff for services, and in relation to his claims for moneys paid for the use of the plaintiffs, found and decided as follows, viz.:

"That the defendants were owners of the schooner