any structural defect or inadequacy in the appliance. He was engaged in work with which he was thoroughly familiar. He had aided in the construction of the appliance. He had assisted, standing upon the car, in dumping seven or eight loads, before the car tilted with him. Even. so, 'the man by his side, engaged in the same occupation, was not injured. It must be concluded, therefore, from the evidence, that the appliance was not inadequate or unsafe; that full knowledge of it was possessed by plaintiff; that, if there was any liability of tilting, he had been forewarned of that by his actual personal experience with the smaller car upon the day preceding. While it is the duty of the employer to furnish reasonably safe appliances, yet when he has furnished such appliances as may, by ordinary care, be used without danger, or with no more danger than is necessarily incident to the character of the work, he has discharged his duty.

The judgment and order denying a new trial are reversed, and the cause remanded.

We concur: MCFARLAND, J.; TEMPLE, J.

(136 Cal. 599)

FAY v. HOWE et al. (L. A. 1,051.) (Supreme Court of California. June 20, 1902.) WILLS TESTAMENTARY TRUSTS CHARITABLE USES-DESIGNATION OF CLASS-TRUSTEE-DESCRIPTION--PERSONAL TRUST-FAIL

URE TO NAME SUCCESSOR.

1. A bequest to a trustee, "to be used as, in his judgment, he may think best," in the "aid of deserving, aged native-born" in a certain town "needing such aid," is not invalidated by the fact that the court cannot determine by a perusal of the will, and independently of the action of the trustee, whether a particular person comes within the class designated, indefiniteness as to persons being the very essence of a charitable trust.

2. A bequest in trust for the aid of "deserying, aged native-born" in a certain town "needing such aid" is not invalid for uncertainty as to the class to be benefited.

3. A bequest by a testator to his "nephew," naming him, "to be used as, in his judgment, he may think best," for the benefit of a certain class of persons, was not invalid as creating a personal trust which could be exercised only by the nephew, since the word "nephew" was merely descriptive of the trustee named, and in case of his death or disability the court could appoint a successor.

Commissioners' decision. Department 1. Appeal from superior court, Santa Barbara county; W. S. Day, Judge.

Action by Waldo B. Fay against S. Herbert Howe and H. P. Lincoln, executors. From a judgment in favor of plaintiff, de fendants appeal. Affirmed.

Richards & Carrier, for appellants. Wm. G. Griffith (Chas. F. Choate, Jr., of counsel), for respondent.

CHIPMAN, C. Defendants are executors of the last will of Henry K. Winchester, deceased. Among other provisions of the will

2. See Charities, vol. 9, Cent. Dig. § 47.

was the following: "Thirteenth. I also leave in trust with my nephew, Waldo B. Fay, five thousand dollars ($5,000), the income to be used in aid of deserving, aged nativeborn in the town of Southborough, Mass., needing such aid; to be used as, in his judg ment, he may think best." The cause was submitted on an agreed statement of facts, and the court adjudged that "the bequest is a valid one, and the defendants are hereby directed to pay the same out of the assets of the estate of said decedent in like manner as other bequests of recognized validity of equal standing under the will of decedent." Defendants appeal from the judgment.

Appellants concede that trusts for charitable uses are good, and that one of the characteristic features of such trusts is that the number of the beneficiaries is indeterminate. But it is contended "that, although the number of individuals in the class cannot be determined, the class itself must be sufficiently defined so that it can be determined whether any specific individual belongs to that class." It is further contended "that a trust is void for uncertainty whenever its provisions are such that a court of equity could not determine whether or not the trustee was diverting the fund from the purposes intended by the giver; and that the test is, can the court determine in a particular instance whether a given person is the beneficiary intended? Judging by these principles, appellants maintain that the bequest to Waldo B. Fay is void for uncertainty." After referring to some of the cases decided by this court, the learned counsel for appellants say that it is a question "awaiting judicial determination in this state how great definiteness in the designation of the class of beneficiaries is required." Charitable uses embrace an almost unlimited field of human benefactions, and the classes themselves are many and varied. The multitudinous character of both the classes and the beneficiaries precludes the possibility of formulating with reasonable accuracy any rule of universal application prescribing the exact definiteness with which classes of charitable trusts must be designated. If the contention of appellants is that the court must be satisfied with the selection of the beneficiary made by the trustee, there would be little difficulty in the court's determining whether the beneficiary selected in a given case was within the class intended by the testator to be benefited. If appellants meant no more than this, there should be no difficulty in upholding the trust. But we infer that the contention goes much further, and the real position taken is that the trust is fatally uncertain and indefinite if the court cannot determine for itself by a perusal of the will, and independent of any action by the trustees, whether a particular person comes within the class. This view, however, would, in effect, rest the very discre tion in the court which the donor was care

ful to confide to the trustee, and would devolve upon the court the execution of the trust expressly reposed in the trustee. This position, we think, must necessarily result from the contention that the court must be able to "determine in a particular instance whether a particular person is the beneficiary interested." The testator here designated the class as including all "deserving, aged native-born in the town of Southborough, needing such aid," and he directed the trustee to disburse the funds "as, in his judgment, he may think fit," among the beneficiaries or members of the class named. The discretion is given to the trustee, and not to the court, to determine who of the class are deserving and needing aid, and the charity must not be permitted to fail because no court can first determine that a particular person belonging to the class is not entitled to share the bounty of the testator. Appellants' contention may be true in applying the principle to private trusts, but it cannot be applied to charitable trusts without destroying most of them. No one would claim that the court is powerless to prevent a perversion of the testator's intention, but no principle upon which charitable trusts are administered can make the court in effect the trustee. In the case of a private trust there must be certainty as to the beneficiaries, but in charitable trusts individuals are not named, for the reason that, if named, the gift becomes a donation to individuals, and, losing the character of indefiniteness as to persons (which is of the essence of a charitable trust), it is no longer a charitable trust. Inherent in every charitable trust is the very characteristic against which appellants' argument points, namely, indefiniteness of beneficiaries.

It is claimed that the gift is void (1) because "only those are to receive it who are deserving and who are needing such aid," and, (2) because "the discretion given to Mr. Fay in determining these qualifications is clearly a personal trust, given to him by reason of the testator's confidence in him, and therefore such as could not, after his death or inability to act, be exercised by another." Upon the first of these objections it is urged that there is no judicial determination of the meaning of the word "deserving," and that it is not possible to say who, in the mind of the testator, constituted "deserving" per sons, and that the phrase "needing such aid" is also hopelessly indefinite. We cannot so regard the will. The testator set aside $5,000, the income of which was to be used in mitigating the wants of the "aged" of the town of Southborough "needing such aid." The fair construction of the will is that such aged persons as needed financial assistance were to partake of the bounty,-in short, the aged poor,-for no others would need financial aid, and no others could have been in the

mind of the testator. The word "deserving" must be construed in connection with the phrase "needing aid," and, coupled with that phrase and the donation of money, it means practically the same thing. We are not permitted to say that the testator may have had in mind as "deserving aged" such persons as might be selected by applying a test of their morality, or religion, or scholastic attainments, as suggested by appellants, and thus destroy the bequest because of its uncertainty. We are to construe the will liberally because in aid of a charitable trust, and we are to treat as certain that which may reasonably be said to be capable of being made certain. We cannot, therefore agree with appellants that there is uncertainty in the class designated by the testator as the objects of his benefaction.

Nor do we think the testator intended to confine the execution of his donation to Mr. Fay alone, and that, having created a fund in perpetuity, the trust would rest under conditions repugnant to its existence, because upon the death or inability of the trustees there would be no one left to act. Apart from the fact that Mr. Fay is ready and willing to execute the trust so long as he may live, we cannot regard the terms "my nephew" as anything more than words of description. And it cannot be said that the testator created a fund in perpetuity, but failed because failing to provide for a successor. If otherwise valid, the court will appoint and not permit the trust to fail. In re Upham's Estate, 127 Cal. 90, 59 Pac. 315. We do not feel called upon to review the cases cited in the briefs. The cases decided by this court have covered pretty nearly the entire field of charitable trusts, and, although not always precisely in point, the principles established by them, we think, fully support the judgment in the present case. Suffice it to refer to some of these cases: In re Hinckley's Estate, 58 Cal. 471 (an exhaustive review of the subject); In re Robinson's Estate, 63 Cal. 620; In re Hewitt's Estate, 94 Cal. 376, 29 Pac. 775; In re Pearsons' Estate, 98 Cal. 603, 33 Pac. 451; People v. Cogswell, 113 Cal. 129, 45 Pac. 270, 35 L. R. A. 269; In re Royer's Estate, 123 Cal. 614, 56 Pac. 461, 44 L. R. A. 364; In re Upham's Estate, 127 Cal. 90, 59 Pac. 315 (where the question is again carefully examined); In re Willey's Estate, 128 Cal. 1, 60 Pac. 471; In re Winchester's Estate, 133 Cal. 271, 65 Pac. 475, 54 L. R. A. 281 (where another charitable bequest by this same testator was involved and upheld).

We advise that the judgment be affirmed. We concur: GRAY, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is af firmed.

(136 Cal. 622) MANSFIELD v. EAGLE BOX & MFG. CO. (S. F. 2,059.)1

(Supreme Court of California. June 20, 1902.) MASTER AND SERVANT-ACTION FOR INJURIES-NEGLIGENCE-FAILURE TO INSTRUCT SERVANT-SUFFICIENCY OF EVIDENCE.

1. Plaintiff's hand was injured while he was operating a rip saw in defendant's box factory. He was 19 years old, and, though he had worked in the factory 15 months, had had little experience with the saw. There was evidence that plaintiff received no instructions in regard to the operation of the saw, and there was expert testimony that the usual and safe way to operate such saw was to use a stick in pushing the boards being ripped, instead of pushing them with the hand, as plaintiff was doing when he was hurt. Held, that the evidence was sufficient to take the case to the jury.

Commissioners' decision. Department 2. Appeal from superior court, Alameda county; F. B. Ogden, Judge.

Action by James Joseph Mansfield against the Eagle Box & Manufacturing Company. From a judgment in favor of defendant, and from an order denying a new trial, plaintiff appeals. Reversed.

Fitzgerald & Abbott, for appellant. A. A. Moore, for respondent.

GRAY, C. This action was brought by an employé of defendant for personal injuries received in defendant's box factory while plaintiff was operating a rip saw. At the conclusion of plaintiff's evidence, the court, on motion of defendant, nonsuited plaintiff for want of evidence to establish a case for the jury; and this appeal is from the judgment following the nonsuit, and from an order denying plaintiff a new trial.

The contention of appellant is that the court erred in deciding that, as a matter of law, there was no evidence to sustain plaintiff's case, and in taking the case away from the jury. We think this contention is well founded. The plaintiff was between 18 and 19 years of age, and, though he had worked in the said box factory some 15 months before he was hurt, he had had very little experience in running the rip saw. As he testifies, that was not his job, and he had run it prior to his injury only on 4 or 5 days, 10 or 15 minutes on each day. When the defendant was short of help and in a rush, its superintendent made the plaintiff run the saw on which he was hurt. It affirmatively appears from the evidence that the superintendent gave the plaintiff no instructions how to operate the saw on which he was hurt, and no warning as to any danger in running it, and the plaintiff received no instruction or warning concerning it except such as he derived from observing others operating the saw at brief intervals. As he testifies: "He didn't warn me of any danger.

He didn't tell me where any danger was in the saw;" and, "I didn't see him cut up any on it; never showed me a thing on the saw at all. The rip saw I operated, and 1 Rehearing denied July 21, 1902.

which Mr. Hiscock showed me how to cut, was different from the one I was finally hurt on." At the instant that plaintiff was hurt, he was engaged at a circular rip saw, about 11 inches in diameter, in cutting boards seven-eighths of an inch thick, 10 or 11 inches wide, and 10 or 11 inches long, into strips three-eighths of an inch thick. This he was doing with his hand, pushing the board with his hand on a table against and under the saw, which turned with a downward whirl towards him. The expert evidence, which was uncontradicted, shows that the usual and safer way to do this dangerous work of sawing such short stuff was by means of a stick in the hand about 14 to 16 inches long with a notch or shoulder cut in it, so that it would not slip on the board; the narrow three-eighths strip being pushed past the saw and thrown out of the way with this stick, thus keeping the hand a safer distance from the saw. The experts tell of another way that short boards were handled with comparative safety, by sliding or pushing them against the saw until they were cut half way through, and then pulling them back. turning them round, and cutting through the other half from the opposite end. Common prudence demanded that this inexperienced young man, commanded to work with a dangerous machine with which he was not at all familiar, should have been fully and specifically instructed in the safest methods of doing this work. To put him to work without these instructions was negligence, and a jury might well have concluded, from the facts in evidence, that plaintiff's crippled hand was the proximate result of such negligence. It is at least safe to say that the trial court was not warranted in declaring, as a matter of law, that there was no question of fact arising on the evidence presented that came within the province of a jury to determine. "We think it is now clearly settled that if a master employs a servant to work in a dangerous place, or where the mode of doing the work is dangerous, and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do work of such a dangerous character, or in a dangerous place, from youth, inexperience; ignorance, or want of general capacity, may fail to appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them, and do his work safely with proper care on his part." The foregoing from a Wisconsin case is quoted with approval in the three well-considered California cases following: Ingerman v. Moore, 90 Cal. 410, 27 Pac. 306, 25 Am. St. Rep. 138; Ryan v. Storage Co., 112 Cal. 244, 44 Pac. 471, 32 L. R. A. 524; Verdelli v. Commercial Co., 115 Cal. 517, 47 Pac. 364. The last case cited clearly illustrates

that it was negligence in the superintendent of defendant to put plaintiff to work at the saw without specific instruction how to work it in the safest way, and warning him as to the liability of the board to slip, and of the saw to catch the board, thus throwing the hand onto the saw. The case should have been left to the jury. Holloway v. Railway Co., 130 Cal. 177, 62 Pac. 478; Foley v. Horseshoe Co., 115 Cal. 184, 47 Pac. 42, 56 Am. St. Rep. 87.

We advise that the judgment and order appealed from be reversed.

We concur: SMITH, C.; COOPER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed.

(6 Cal. Unrep. 945)

GARDNER v. STARE et al. (L. A. 1,060.) (Supreme Court of California. June 21, 1902.)

APPEAL EFFECT-PRESUMPTIONS.

1. Where the record on appeal from an order sustaining objections to a trustee's account does not show the evidence on which it was based, the decision will be affirmed, as all presumptions are in favor of the action of the trial court.

2. An appeal from an order does not devest the trial court of jurisdiction to make subsequent orders in the cause, but, at most, is only matter in abatement.

3. An appeal, in a proceeding against a trustee to compel an accounting, from an order relating to the account before a certain date, does not preclude the trial court from making an order in reference to the trustee's accounts subsequent to such date.

Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; M. T. Allen, Judge.

Suit by William Gardner against Catherine Stare and others. From an order in favor of plaintiff, defendant Adeline Johnson appeals. Affirmed.

C. N. Wilson and Leslie R. Hewitt, for appellant. Dunnigan & Dunnigan, Cole & Cole, Fred L. Wood, Graves, O'Melveny & Shankland, and Goodrich & McCutchen, for respondent.

COOPER, C. On the 18th day of October, 1899, a citation was duly issued and served upon Mrs. Adeline Johnson, one of the defendants, directing her to make a report to the court, and an accounting of all matters connected with the trust estate, of which she was trustee, since the filing of her last account, September 1, 1898. The account was accordingly made and filed, and written objections were made to certain portions of it. After hearing, and on July 30, 1900, the court made an order sustaining some of the objections to it, and directed that, as corrected, it be approved and allowed. This appeal is from the said order.

12. See Appeal and Error, vol. 2, Cent. Dig. § 2209.

There is no bill of exceptions or authenticated statement of the evidence in the record. In such case all presumptions are in favor of the order of the court below, and we cannot disturb it. In re Scott's Estate, 128 Cal. 580, 61 Pac. 98.

At

Appellant, if we understand her brief, contends that the court had no jurisdiction to make the order because it had in February, 1899, made a certain order or decree in the same entitled matter, and that an appeal was pending in this court from the order so made at the time the order in the case at bar was made. The fact that an appeal was pending from a prior order made in the same case would not deprive the court of jurisdiction in the matter of making the present order. most, it would only have given the appellant the right to plead in abatement the pendency of the prior proceeding or the bar of the prior judgment; but no such plea was made, and there is nothing in the record to show that such issue was in any way before the court. The copy of the prior order is, however, printed in the record, and we have examined it, and find that it only included the account of appellant as trustee up to September 1, 1898. This order or decree was affirmed here. Gardner v. Stare, 67 Pac. 5. The present order is confined to matters accruing after September 1, 1898, and takes the balance as found in the prior order as a basis. Hence the prior order in no way settled or determined the account of appellant as trustee after September 1, 1898.

It follows that the order should be affirmed.

PER CURIAM. For the reasons given in the foregoing opinion, the order is affirmed.

(136 Cal. 616) PETALUMA PAV. CO. v. SINGLEY et al. (S. F. 2,055.)1

(Supreme Court of California. June 20, 1902.)

STREET ASSESSMENT-OBJECTIONS-WAIVER-NEGATIVE ALLEGATION-BURDEN OF PROOF -CONCLUSIONS OF LAW-REVIEW.

1. Code Civ. Proc. § 1869, provides that evidence need not be given in support of a negative allegation except when such allegation is an essential part of the right or the statement on which the cause of action or defense is founded. In a suit to enforce the lien of a street assessment, plaintiff alleged that plaus and specifications and estimates of cost had not been required, etc. Held, that affirmative evidence in support of such allegation was not

necessary.

2. Where, in a suit to enforce the lien of a street assessment, a finding that the lien was valid was included among the findings of fact, such finding was nevertheless a conclusion of law, so that a specification that it is against the law, and that the findings do not support it, cannot be considered on appeal from an order denying a motion for a new trial.

3. Enforcement of the lien of assessment for street improvements cannot be resisted on the ground that the work was not done according to the contract, where that objection was 1 Rehearing denied July 11. 1902.

not urged by appeal to the city council, as required by Act March 18, 1885.

Commissioners' decision. Department 2. Appeal from superior court, Sonoma county; Albert G. Burnett, Judge.

Action by the Petaluma Paving Company against James Singley and others. From a Judgment for defendants, plaintiff appeals. Reversed.

J. P. Rogers (Guy C. Earl and Johnson & Shaw, of counsel), for appellant. Lippitt & Lippitt, for respondents.

SMITH, C. Judgment was rendered for the plaintiff in the court below, but on motion of the defendants a new trial was granted, from which order the plaintiff appeals.

The suit was brought to enforce the lien of a street assessment. The complaint is in the ordinary form, setting forth the several acts of the municipal authorities required by the law; and on the trial all its allegations were admitted, except the following,corresponding, respectively, to the eighth, eighteenth, and twenty-ninth findings of the court:

"Sec. 7. That before passing the resolution for the construction of the said work or improvements, plans and specifications and careful estimates of the costs and expenses thereof had not been required by it to be furnished to the said board of trustees by the city engineer of the said city, but special specifications had been furnished by him.

"Sec. 17.

That the plaintiff did and caused to be done all the work in said contract and specifications mentioned, and duly performed on its part in every respect the said work according to the specifications and the terms of the contract, with its extensions of time.

"Sec. 26. * That the plaintiff, by virtue of the said act, and by reason of the warrant, assessment, certificate, and diagram, and of the various acts done as aforesaid, has and holds a lien upon the lots and parcel of land above described, and alleged to have been separately assessed as aforesaid, to secure the said several sums of money so separately assessed against the said lots and parcel of land, and the unknown owners thereof, as above set forth, and that the sums are, by the statutes in such cases made and provided, due and payable."

These allegations were denied by the defendants' answer, but found to be true by the court.

The ground of the objection to the eighth finding is that "the evidence does not show that plans, specifications, and careful estimates for the said work were not required by the board of trustees of the city engineer," or that "any special specifications were required or furnished by the city engineer for said work." On neither of these

points was there any direct evidence; but, with regard to the first, it did not devolve upon the plaintiff to prove his negative allegation (Code Civ. Proc. § 1869); and with regard to both the evidence establishing the plaintiff's prima facie case was (assuming the facts to be material) sufficient to support the finding. The objections to the findings in the specifications are therefore untenable, nor is the contrary argued by the respondent. But his real point is that the facts alleged and found are insufficient to support the judgment; his argument being that, under the provision of section 3 of the act, "plans and specifications" and "estimates" prepared by some one are essential in all cases, and by the city engineer, when required by the council. But the statute does not admit of this construction.

The objection to the eighteenth finding is The evidence constitutequally untenable. ing the plaintiff's prima facie case was sufficient to sustain it. Street Improvement Act, § 12; Blanchard v. Ladd, 23 Cal. Dec. 41, 42, 67 Pac. 131, and cases cited.

The objections to the twenty-ninth finding, as to the validity of the plaintiff's lien, are also untenable. This, though contained among the findings, is merely a conclusion of law from the other facts found. Accordingly, the specifications are that it is against law, on the several grounds that the findings do not sustain it, that the complaint does not state a cause of action, and that the act is in contravention of the federal and of the state constitution. There is nothing here in the nature of a specification of insufficiency of the evidence; nor are the objections reviewable, on a motion for a new trial, on the ground of the decisions being against law. Martin v. Matfield, 49 Cal. 42; Bode v. Lee, 102 Cal. 586, 36 Pac. 936; Evans v. Paige, 102 Cal. 132; Pierce v. Willis, 103 Cal. 93, 36 Pac. 1080; Hall v. Susskind, 120 Cal. 559, 53 Pac. 46. We are not to be understood, however, as holding that otherwise the objections are such as would require serious consideration.

The only point remaining to be considered is the alleged error of the court in refusing to admit testimony that the work was done according to the contract. But on this point the defendants were precluded from attacking the assessment by their failure to appeal under section 11 of the act. Finlayson, St. Ry. Law, pp. 116, 117; Fanning v. Leviston, 93 Cal. 188. 28 Pac. 943; Warren v. Riddell, 106 Cal. 352, 39 Pac. 781; Perine v. Forbush, 97 Cal. 305, 32 Pac. 226.

We advise that the order appealed from be reversed.

We concur: HAYNES, C.; GRAY, C.

PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is reversed.