of the testatrix were limited to the extrinsic facts as they existed at the time the will was made, the answer must be fatal to the plaintiff's case, because there was at that time not only no insufficiency of personal estate for the payment of the legacies, but there was no real estate upon which they could have been charged.

But clearly our inquiry is not thus limited, and the facts mentioned are not conclusive upon the question of the intention of the testatrix. As the effect of a will is not confined to property possessed by the testator at the date of its execution, but extends to property subsequently acquired, so the intention of the testator must be supposed to embrace future probable or possible changes in the form and character in his estate; and his subsequent dealings with his property may furnish satisfactory evidence of the intention with which the provisions of his will were made. It was upon evidence of this character that the judgment of the court of appeals was made in the case of Scott v. Stebbins, 91 N. Y., 605, where the court after stating what appeared from the evidence respecting changes in his property made by the testator subsequent to the execution of his will, proceeds to say: "It is evident that he must have known and intended that his personal property would not be charged alone with the payment of the legacies. The reduction of his personal property and the increase of his real estate evinces that he must have regarded the latter as chargeable with the legacies." And in Briggs v. Carroll, 117 N. Y., 288; 27 N. Y. State Rep., 468, the same effect is given to evidence of the character referred to. In that case Finch, J., speaking of the action of the testator subsequent to the execution of the will, by which his personal estate had been largely depleted, says: "Either he must have intended to sacrifice the comfort and welfare of his wife and his son Charles for the benefit of his older and married children, and deliberately continued to make their situation worse by putting personal estate into land and incurring debts, or he supposed that their legacies would rest upon his real estate. I think we are justified in holding that the latter was his understanding of the will." And again, after referring to the legacies as of such a character that it is hard to suppose they were meant to abate, he adds, "and the subsequent action of the testator strongly indicates that he meant to impose their payment upon his lands." The facts in both of the cases referred to are similar, in the respect considered, to those of the present case; and if a similar effect is given to the latter we shall readily conclude that nothing was further from the intention of the testatrix than that the legacy to the plaintiff should abate and that the whole body of the estate should fall into the residue and go to persons who, under the conditions existing at the time the will was made, would have taken only an inconsiderable surplus of the estate.

The circumstances of this case, extrinsic to the will, were briefly as follows: The testatrix was an unmarried woman, upwards of sixty years of age, at the time her will was made. Seven years before that time she had found a home with the plaintiff, who was her sister, and she continued to live with her until her death,

which occurred eleven years later. During this time she paid to the plaintiff's husband $100 a year for her board; a sum which may possibly have reimbursed him for his actual outlay for her benefit, but which left the plaintiff's services, kind offices and care, in sickness and in health, wholly unrequited. At the date of her will her property consisted solely of personal estate worth $2,500. Her will provided a legacy to the plaintiff of $1,800, and another to a niece of $200. This left of her property, as it then existed, the sum of $500, out of which to pay her funeral expenses, the cost of a tombstone, and any possible debts, and whatever small surplus was left would have gone to three residuary legatees, a brother, a sister and a nephew, in equal shares. Such was the status when the will was made. The eleven years which intervened before her death brought no change in her relations, and only an increase of obligations, to the sister to whom she had posed to give two-thirds of her estate, but the estate itself had been changed in form, from personal to real, by investment in land, and the brother and sister named in the residuary clause had died. The effect of these changes, upon the theory of the appellant's contention, was to cut off the legacy to her sister, the plaintiff, and as well as that to her niece; to devolve one-third of the entire estate upon the nephew named in the residuary clause, and to leave the remaining two-thirds to be divided between her heirs-at-law, near and remote, including the same fortunate nephew, who alone appeals from the judgment in this action. No one can believe that the possibility of such a result ever entered the mind of the testatrix; much less that it was consistent with her intention at any moment of her life.

pro

If, then, effect is to be given to this will according to the intention of the testatrix, and that intention is to be ascertained by inquiry of extrinsic circumstances which followed, as well as those which accompanied the execution of the will, including the fact that she suffered the will to stand unchanged under the changed conditions in respect to her property which had supervened, then the conclusion reached by the learned trial court in respect to the plaintiff's legacy was right. We confess that we are unable to see precisely why the same conclusion might not have been reached in respect to the legacy of $200 to the niece; but this appeal does not present the question.

The judgment should be affirmed.

Judgment appealed from affirmed, with costs.

MACOMBER and CORLETT, JJ., concur.

MARIA MOELLER, Adm'rx, Pl'ff, v. H. AUSTIN BREWSTER et al.,

Def'ts.

(Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) NEGLIGENCE-CONTRIBUTORY.

Plaintiff's intestate was employed by defendants to test radiator bases, which was accomplished by means of steam and the closing of small orifices by hammering. He was killed by the explosion of a base he was testing. This was a new pattern of base of larger cross-s ction, of which pattern he had only tested four others. It appeared that the larger the

cross-section the greater the pressure would be. Intestate had no mechanical knowledge except such as he had gained by experience in testing bases. Held, that whether he was chargeable with knowledge of the increased danger, and with negligence in not adapting his mode of operation to the requirements of the situation, was a question for the jury, and it was error to direct a verdict for defendants.

MOTION by the plaintiff for a new trial on a case and exceptions ordered to be heard, in the first instance, at general term, after a verdict for the defendants, directed by the court, at the Monroe circuit, October, 1889.

Q. Van Voorhis, for the motion; H. McGuire, opposed.

DWIGHT, P. J.-The action was for damages resulting from death of the husband and intestate of the plaintiff, caused, as is alleged, by negligence of the defendants. At the close of the evidence, on the trial, the defendants asked the court to direct a verdict in their favor, on the sole ground "that on the undisputed evidence in the case, the plaintiff's intestate was guilty of contributory neg ligence," and the direction was given. That question was also the only one discussed in behalf of the defendants on the argument of this motion for a new trial, counsel declaring that he was content to stand or fall with the proposition above stated; thus conceding, for the purposes of this review, that the question of the defendants' negligence was a proper one for the jury. We think it would have been more in accord with the rule established by the later cases, if both questions had been so treated. It requires a very plain case, indeed, to warrant the withdrawal of the question of contributory negligence from the jury. The court of appeals of our own state has lately gone so far as to say, in an opinion by its chief judge, that that question is for the jury "in all cases except those marked by gross and inexcusable negligence." Parsons v. N. Y. C., etc., R. R. Co., 22 N. Y. State Rep., 697, 702.

Without insisting upon the full force of the rule thus declared, we think this case was one in which the fact of the negligence of the deceased should have been found by the jury if it was to defeat the plaintiff's action.

The defendants were manufacturers of steam heating apparatus and the deceased was a workman in their employ. His particu lar branch of the work was the testing for leaks of the cast iron bases of radiators, and he was killed by the explosion of one of those bases while being tested by him. The testing was accomplished by means of steam let on from the boiler connected with the engine which propelled the machinery of the works. The radiator being set up by the insertion of upright tubes into the base, a steam pipe from the boiler was connected with one end of the base to admit the steam and a rubber tube with the other end to permit the steam to pass off into a sewer or drain. Of course the supply of steam must exceed the exhaust in order to produce a pressure sufficient for the detection of leaks, which were indicated by the escape of steam; and to control both the supply and the exhaust, the two pipes were fitted with stop cocks which might be wholly or partially closed by the operator. There was a class of small orifices sometimes found in the iron which were to be closed by a process of hammering, which had the effect of

so expanding or flattening the particles of iron surrounding the orifice as partly to close it, and the process of rusting completed the operation. Of course the danger of explosion of the base, with a given strength of material and construction, depended, in the first instance, upon the pressure of steam; but the evidence tended to show that that danger was increased by the vibration in the particles of iron produced by the hammering mentioned. It is probable that vibration to some extent was produced by any hammering of the iron, but the evidence tends to shov that with a pressure of steam properly regulated, moderate blows of the hammer might be applied with safety, and that it was usual to apply the hammer when the steam was on, because only then could the operator discover the precise location of the orifice to be closed.

It follows that safety from explosion in this operation depended largely upon the proper regulation of the pressure of steam, together with the proper use of the hammer, both of which were in the control of the operator, but that both of these elements of danger were greater or less in proportion to the strength or weakness of material and construction employed in the casting operated upon. And this brings us to the fact, which the evidence tends to show, and upon which the plaintiff's cause of action, if she has one, may possibly depend, viz.: that the casting which exploded was of a new pattern, only just introduced in the defendant's shop, of which only four or five had been tested before this one, and which were of a larger interior cross section than any which the deceased had previously been employed in testing. It appears that the greater the interior cross section or interior diameter of the steam cavity, the greater the pressure to the square inch of a given force of steam, and consequently the greater the liability to explosion with the same thickness and strength of iron. And so we find in this case that the deceased had been employed in testing bases with precisely the same appliances and in the same manner of operating for seven or eight years without, so far as appears, causing an explosion, until the introduction of the bases of the new pattern. The one which exploded with fatal effect was, as we have seen, only the fifth or sixth of those tested, and the one last before it had also been exploded, though without injuring any person, not by hammering but by striking a corner on the floor, or table, when being turned over with the steam on. From these facts there was room to argue that the pressure of steam and the manner of manipulation, with the hammer or other wise, which the deceased had been accustomed to employ, was safe with the castings which he had been accustomed to test, but dangerous with those of the new size and pattern, and if so, the material question would be whether he was chargeable with knowledge of the danger in the case of the latter, and with negligence in not adapting his mode of operation to the requirements of the situation. This question was to be determined in view of all the circumstances of the case; and it would have been for the jury, if the case had been submitted to them, to attach to each of N. Y. STATE REP., VOL. XXXIII. 91

those circumstances its proper weight and determine the effect to be given to them as a whole.

There was, for instance, the circumstance of a long experience of the deceased in the work; but, on the other hand, the fact that he was never a skilled mechanic; that he began at this place as a common laborer, and had had no mechanical education except what he had gained by experience of the narrow routine of testing cast iron radiator bases by the pressure of steam and the closing of minute orifices by the use of a hammer. Whether from this experience he was likely to gain a knowledge of the mechanical principles involved in the inquiry whether it was safe to make use of the old methods under the new conditions, may have been a question in this case; if so, it was a question for the jury. There is a good deal of evidence in the case of warnings which the deceased received about this time, especially from his foreman Widdowson, in respect to his method of testing; but it does not appear that any of these warnings had reference to the change in the pattern and size of the bases in use, and it is a question whether there was any evidence that his methods at this time were different from those which he had habitually employed through a long period of immunity from accident.

There are many other facts in the case of more or less importance as bearing upon the question of the negligence of the deceased, but none, we think, which render that question anything more or less than a question of fact for the jury.

We have no intention to intimate an opinion whether in the respect considered a case was made for a recovery; we have reached the conclusion only that the question was one upon which the jury should have been permitted to pass. The motion for a new trial must, therefore, be granted.

Motion for a new trial granted, with costs to abide the event. CORLETT, J., concurs; MACOMBER, J., taking no part.

CARRIE C. FOWLER, Resp't, v. WILLIAM P. FOWLER, App'lt. (Supreme Court, General Term, Fifth Department, Filed October 23, 1890.)

1. DIVORCE-LIMITED.

The several subdivisions of 1762 of the Code are alternative in their provisions, and the several causes prescribed by them for which a separation may be decreed are independent of each other.

2 SAME.

It appeared from the evidence that defendant made false charges of adultery against plaintiff; made persistent efforts to entrap her into a confession of guilt; that in ten years she was ten times with child by defendant; that by his course of conduct she was kept in ill health and had attempted to commit suicide. Held, that a case was made out for a separation under subd. 2 of § 1762 of the Code.

3. SAME-EVIDENCE-PRIVILEGED COMMUNICATIONS.

A declaration made by the defendant the second night after marriage, that he did not love the plaintiff and had made a mistake in marrying her, which is the beginning of a course of ill-treatment, is not a privileged communication.