names. the phrase, my right heirs'?... The .. The words right heirs were as plain a descriptio personarum as though he had mentioned the parties by their individual His right heirs were his heirs at common law, and he used the words properly as words of purchase. Indeed he could have substituted no others, because he could not know who among the class would answer to that description at his death. But we need not labor a point which has passed into text law. 'Where the word "heirs" is used, not to denote succession or substitution, but to describe a legatee, and there is no context to explain it otherwise, it should seem that there is no reason to depart from the natural and ordinary sense of the word:' 2 Wms. on Executors, 1195. A bequest of personalty to the right heirs or to the heirs-at-law or the next heir of an individual, prima facie goes to such heir as persona designata, whether the bequest be to the heirs of the testator or of a stranger:' Theobald on Wills, 167." In Comly's Estate, supra, it was said that the words "assigns or legal representatives" following the word "heirs are referable to the latter word, and that the word "heirs," when used in a limitation of personal property to the heirs of the first taker, either substitutionally or by way of succession, is generally understood to mean those entitled under the statutes of distribution in case of intestacy, and that, in this particular instance, it indicated the legatee's next of kin under the intestate laws. The Court, among other things, said: "The transmission of beneficial ownership, upon his brother's death, was immediate and direct to the heirs' or next of kin of the latter, their assigns or legal representatives, as the case may be.' In Ringwalt . Ringwalt, 4 Pennypacker, 276, a case arising in this county, it appeared that Martin Ringwalt conveyed all the real estate which he was entitled to under his father's will to his mother, to be held by her during his life, and upon his death to his lawful issue, if he should leave any, and if not, then it should be equally divided among his surviving brothers or their legal representatives." It was held that the words 66 999 "legal representatives" in the deed were used as the equivalent of "heirs," and upon the grantor's death without issue, the son of a deceased brother was entitled to recover his share. In Hodge's Appeal, 8 W. N. C., 209, where in a life insurance and beneficial association the fund was to be paid, in case of the death of any member, under its constitution and by-laws, if there was no disposition by will and no widow, to his heirs and legal representatives, it was held by the Supreme Court, on appeal, that the words "heirs and legal representatives" signified next of kin as ascertained by the intestate laws, and that his administrator had no right to receive the fund as assets for the payment of debts. See also Stock's Appeal, 20 Pa., 349; Clark v. Scott, 67 Pa., 446. If some one else had owned the land, could the executors of Henry G. Hoffer, as such, have collected this charge? Because he happened to be the owner of the land himself, had he the right to pay it to himself and his brother as executors and thus preclude the plaintiff from making his claim under the deed against. the land? We think we must answer these inquiries in the negative. It follows that the defendant has set forth no sufficient defense in his affidavit, and that the rule for judgment must be made. absolute and judgment must be entered in favor of the plaintiff for the sum of $666.66, with interest from July 2, 1905, making $1,047.32. Rule absolute. Hohein's Administrator v. Rote. Executor and trustee-Power to sell. Under a will showing an intention to impose two sets of duties upon one named as executor and trustee, viz., to gather as exec utor the assets of the estate and turn them over to the widow, and on her death to hold as trustee certain real estate for the testator's sons and sell the same at the proper time, and dispose of the proceeds together with the residue of the estate, with power to sell any part of the estate, an administrator c. t. a., appointed on the renunciation of such executor and trustee, cannot sell the real estate after the death of the widow, as this is the duty of the succeeding trustee. Case Stated. C. P. of Lancaster Co. December Term, 1914, No. 49. John A. Nauman, for plaintiff. The plaintiff as the administrator c. t. a. of Oscar Hohein, deceased, entered into an agreement with the defendant to sell certain real estate. The defendant refuses to pay for it because, as he alleges, the plaintiff has no authority to convey it. This action is brought to compel payment. The facts are agreed upon in a case stated, and are as follows: Oscar Hohein died on March 13, 1901, leaving a will in which he named Charles F. Rengier executor and trustee. Charles F. Rengier renounced his rights as executor and trustee, and letters of administration c. t. a. were granted to Elizabeth H. Hohein, widow of the testator, and Franklin H. Hohein, a son. Some time subsequently the Union Trust Company was appointed trustee under the will. Elizabeth Hohein, the widow, died on July 3, 1913. In his will, Oscar Hohein directed that all his just debts and funeral expenses be paid as soon as conveniently could be done. He then devised all the residue and remainder of his estate, both real and personal, after the payment of debts and expenses, to his wife to have and to hold for life or widowhood, without impeachment of waste. Upon her death or marriage he gives and devises four houses to his trustee in trust, one for each of his four sons, and directs when they shall be sold and what shall be done with the proceeds of sale. He bequeathed a fifth house to another son in fee simple. He then provides as follows: "4. All the rest, residue and remainder of my estate after the death or re-marriage of my wife, as aforesaid, both real and personal, I give, devise and bequeath to my aforesaid trustee in trust to sell the same and divide the proceeds thereof into five equal parts or shares, and dispose of the same as follows." The fifth item of the will is as follows: "5. For the purpose of enabling my aforesaid executor and trustee to carry out the provisions of this my will, I hereby authorize and empower him to sell or dispose of all or any part of my estate, real or personal, for the payment of debts or otherwise at his own discretion as to time, manner, price and terms. And the said real estate to grant and convey to the purchaser or purchasers thereof in fee simple, or any less estate, by sufficient deeds, &c. . . . This power to sell shall extend not only to the estate of which I may die siezed, but also to any which my said executor and trustee may acquire for the protection of my estate or to carry out the provisions of this my will." The intention of the testator, as expressed in his will, must govern it. It was clearly his intention to impose two sets of duties upon his friend, Charles F. Rengier, in appointing him both executor and trustee. As executor, it was his duty to gather together the assets, pay all debts and funeral expenses, and, if necessary, he was empowered to sell any part of the real estate for these purposes. It was his duty then to turn over all the assets, which included real estate not sold, to testator's widow, who was to hold and use them during her life or widowhood without impeachment for waste. This ended his duties as executor. Upon her death or marriage the duties of the trustee were to commence. To him as trustee was devised four houses, to hold in trust for four of the testator's sons, to sell them when the time for the sale arrived, and to dispose of the proceeds as directed in the will. All the rest, residue and remainder of the estate was devised to him as trustee to sell and dispose of. In order to perform these duties he was given power to sell in the fifth item of the will. If the sale of the real estate was necessary in the performance of the duties of the executor - that is, in payment of his debts and expenses-Charles F. Rengier was empowered to sell, and would have sold as executor, but when the time arrived for him to sell what had been devised to him as trustee he was empowered to sell it as trustee. When different persons were appointed to perform these different duties, the administrator c. t. a. could only perform those imposed upon the executor and exercise the powers given to the executor, and the | A. (N. S.) 33; Berry, Law of Autoperson appointed trustee must perform mobiles, Sec. 147; also note to Kellogg v. such duties and exercise such powers as Charity Foundation, cited in Ann. Cas., are imposed upon the trustee. A sale of 1913A, 886; Thompson on Law of the real estate after the death of testa- Negligence, Sec. 581; Meyers v. Tritor's widow is a duty imposed on the State Automobile Co., 121 Minn. 68, 140 trustee who is given power to do it. The N. W. 184, 44 L. R. A. (N. S.) 113. administrator c. t. a. who stands in the place of the executor has no power to do so. He, therefore, cannot convey any title to the defendant, and we enter judgment for the defendant. Legal Miscellany. There are also some cases which approach the one under consideration more closely in their facts than do the cases cited. In these cases the occupant of the vehicle owned it; but the horse and driver were furnished by the liveryman. In such cases the latter has been held liable for the negligence of the driver. Kellogg v. Charity Foundation, 203 N. Y. 191, 6 N. E. 406, 38 L. R. A. (N. S.) 481. See comprehensive note to this case in Ann. Cas. 1913A, 883, 885; Quarman v. Burnett, 6 M. & W. 499; Jones v. Mayer, etc., 14 Q. B. Div. 890; Parsons v. Wisner, Sup. 113 N. Y. Supp. 922. The case of Neff v. Brandies, 91 Neb. 11, 135 N. W. 232, 39 L. R. A. (N. S.) Automobile Operated by Outside Chauffeur. In Ouellette v. Superior Motor and Machine Works, in the Supreme Court of Wisconsin (June, 1914, 147 N. W. 1014), it was held that where the owner of an automobile stored it at a garage under an agreement by which the ga-933, is not distinguishable in principle rage-keeper, for an agreed compensation, was to furnish a chauffeur as requested, it being left to the garage-keeper to select the chauffeur, pay his compensation, and to hire and discharge him at pleasure, the chauffeur while so operating the car for the owner, the owner being an occupant thereof, but not directing or controlling the manner of driving further than to tell the driver where he desired to go, was the servant of the garage-keeper, and he, and not the owner was liable for an injury caused by the negligence of the chauffeur. On this point the court said: "Had the car and driver been hired from the garage-keeper, there would be no doubt that the rule of respondent superior would apply. This court has so decided. Garrison v. Rambler Garage Co., 149 Wis. 528, 136 N. W. 186, 40 L. R. A. (N. S.) 457; Hannon v. Van Dycke Co., 154 Wis. 454, 143 N. W. The law elsewhere is in harmony with these decisions, which really rest on the principle established in numerous cases dealing with the liability of livery stable keepers. See notes to Frerker v. Nicholson, 13 L. R. A. (N. S.) 1122, and Morris v. Tredo, 25 L. R. from the case under consideration. There the defendant owned the car and kept it in a garage under a contract to pay a stipulated sum for storage and for a driver whenever desired. The accident occurred while the chauffeur was taking the car from the defendant's home to the garage. The defendant was not in the car when the accident occurred; but if the chauffeur was the defendant's servant while defendant was riding in the car, surely he was his servant for the purpose of taking the car from the defendant's home to the place where he desired it stored. The court held that the chauffeur was not the owner's servant. The case of Dalrymple v. Covey Motor Car Co., 66 Or. 533, 135 Pac. 91, 48 L. R. A. (N. S.) 424, in which the garage owner was held liable, would also seem to be on all fours with the present one. There the owner of the car was occupying it when the accident occurred, and had given directions where to go and when to stop to the chauffeur furnished by the defendant. The mere fact that Father Fardy was the owner of the automobile does not make him responsible and much less solely responsible for every injury caused by it. Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227; Cunningham v. Castle, 127 App. Div. 580, 1II N. Y. Supp. 1057; Reynolds v. Buck, 127 Iowa 601, 103 N. W. 946; Babbitt, Law of Motor Vehicles, Sec.. 582. that any particular employe should do the work. The plaintiff offered to prove that the garage-keeper did not give any authority to the owner to control the chauffeur, and that the owner did not assume any control over him except to designate the streets over which he desired to pass. The evidence was ruled The respondent cites a number of out by the court on the ground that it cases as holding that, where the general was immaterial. It seems clear that unservant of one person is loaned or fur- der the principle referred to the relation nished to another, he thereupon becomes of master and servant not only existed the servant of the one for whom the between the defendant and the chauffeur, service is being performed, and the lat- but also that the rule of respondeat suter is liable for his negligence. This is perior applied, assuming that the proofs no doubt accurate enough where the ser- offered were forthcoming. There seems vant is placed under the control of the to be more reason to hold that there is person for whom the work is being liability in automobile cases than in livdone and the latter assumes to direct the ery stable cases. Most people. either manner of doing the work. Most of the know how to drive a horse or how one cases cited are of this class. In some should be driven, and can ordinarily tell of them this distinction is not very when a driver is reckless or incompetent. closely observed; but we think it forms | Many people own automobiles who know the true line of demarcation between lia- nothing about driving them. It requires bility and nonliability. If one arranges some degree of experience and skill to with a painter or a carpenter who has do the work safely and properly. Under several men in his employ to send a man such a contract as here existed between to do a certain piece of work and points the owner of the car and the defendant out to such person the work which he the owner was obliged to rely on the desires done, but does not undertake to knowledge and skill of the garage owner direct, control, or interfere with the man- to procure a safe and competent driver. ner of doing the work, the relation of We are only concerned with the liability master and servant does not arise, and of the defendant, and conclude that it the liability for the negligence of the was error to direct a verdict.” servant toward a third party would rest on the general employer. Smith v. M. B. & Tex., 91 Wis. 360, 64 N. W. 1041, 30 L. R. A. 504, 51 Am. St. Rep. 912. On the contrary, if the party for whom the work was being done undertook to direct what should be done, and how it should be done, he would thereby make the employe his own servant, and become liable for the servant's negligence in following his directions. Where a general employer of labor, in response to calls, assigns his men to do certain jobs, presumably he is making a profit out of their labor by receiving more for it than he pays the laborer. There can be little doubt that such employes are facilitating their master's business while doing the work assigned them. Here the general employer had the right to hire and discharge the employe. The owner of the car made no stipulation The court refers to the liability of livery stable keeper. The law on this subject, however, is by no means harmonious or well settled. See editorial in this journal for June 26, 1914. We concur with the Supreme Court of Wisconsin in the view that a livery stable keeper who furnishes a vehicle with a driver or chauffeur should be held liable under the rule respondeat superior if all that the hirer of the vehicle does is to direct the driver or chauffeur where to go. We also are of opinion that the same rule should apply where a supposedly skilled chauffeur is supplied from a garage to one who is merely the owner of an automobile and that the principal case was correctly decided. -New York Law Journal. company to do some work, failed to give LANCASTER LAW REVIEW. him any explanation of the condition of the top of the dam, or any "warning as VOL. XXXII.] FRIDAY, FEB. 5, 1915. [No. 14 to its not being level but curving or slop Common Pleas--Law, Sam Montilovic, by his Next Friend, W. H. Keller, v. The Pennsylvania Water & Power Co. Employer and employee - Risk of employment-Notice-Fall from dam at night-Lights on top of dam. It is not the duty of an employer to warn his employees of such dangers as are subject to common knowledge or are open and apparent to ordinary observation, and which the employee has had an opportunity to observe. It is the duty of employers to sufficiently light dangerous places where employees may be required to go at night. The plaintiff was injured by falling at night from the top of a dam, where he had been sent to do work. He had been working for five months about the dam, and its top, which was about four feet wide, could be seen from the shore, although he testified that he had never seen it and did not know its shape and danger. Held, in suit for damages, that the defendant was not required to instruct the plaintiff as to the shape and dangers of the top of the dam, but the case was for the jury on the questions as to whether the top of the dam was sufficiently lighted, and if not, whether this caused the accident. Rule to strike off judgment of nonsuit. C. P. of Lancaster County. August Term, 1914, No. 22. Coyle & Keller, for plaintiff. January 9, 1915. Opinion by HASSLER, J. This is a rule to strike off a non-suit. The plaintiff sought to recover for injuries sustained while in the employ of the defendant company through, as he alleges, its negligence. In his statement he alleges two particulars wherein it failed in the performance of its duty to him. (1) That the foreman in charge, who directed him on a dark night to go to the top of the dam of the defendant ing down stream, or as to the dangers incident thereto "; and (2) that it was insufficiently lighted. The testimony showed that the plaintiff, a young Austrian then nineteen years of age, was in the employ of the defendant company. He had been its employee, as one of a gang of laborers, for about five months before the date of the accident. He worked all this time about the dam, but was never on top of it prior to that date. He says he did not know what the top of the dam was like. On the morning of September 21, 1912, about four o'clock, before daylight, he was ordered by the foreman to get a bag, fill it with ashes, and with other employees take it up to the top of the dam and empty it in front of some flashboards to stop a leak. When he got to the top he followed another employee a distance of from ten to fifteen feet and turned to empty the bag, when his foot slipped on a wet and round place and he fell over the edge of the dam to a trestle sixty-five feet below, sustaining severe injuries. The dam is sixty-five feet high, and has a level place on top of it. The plaintiff, who was the only witness who testified on the subject, could not say how wide it was. At first he was unable to say whether it was one foot or ten feet wide, and afterwards he said it was four. He further says that if it had been wide he would not have slipped. At the lower end of this level place it slopes sharply down. It was on this slope that his foot was then he slipped and fell. The spot was wet. He said there were incandescent electric lights on top of the dam, but he could not see, as it was pretty dark. He could not see the shape of the dam from that character of lights. These lights were from six to eight feet high. He was unable to say how many lights were there. He said they were pretty far apart. He at first could not tell how far apart, and then said they were twenty or twenty-five feet apart. He did not know how many he passed while walking |