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tinct from the duties imposed upon them as trustees, and their powers and duties as trustees did not begin until as executors they had ceased to have any control over the property, and, as above seen, the decree of distribution is alone to be considered for the purpose of ascertaining their powers. The testator may have been willing to give this power of sale to his executors, since he knew that every sale by them must be confirmed by the court before the title to the land would pass from his estate, while he might have been unwilling to vest the same persons with a power whose exercise would be without such supervision and control.

The judgment is affirmed.

McFarland, J., Henshaw, J., Garoutte, J., and Van Fleet, J., concurred.

THE PRINCIPAL CASE was reaffirmed and followed in Estate of Trescony, 119 Cal. 568. It appeared in that case that a decree of distribution had been entered in the estate of the decedent by which one-third thereof had been distributed to trustees upon certain trusts expressed in the decree, and the other two-thirds were distributed to other beneficiaries under the will. Afterward, a suit in partition was brought by some of the distributees against the others for the partition of real estate, in which suit an interlocutory decree was entered directing partition to be made. Referees were subsequently appointed, who made partition and filed a report of their proceedings, and this report was confirmed, and by it certain parcels of land were allotted to the trustees upon the trusts named in the will. The trustees afterward filed in court their account as such of their management of the trust property, and such account was objected to on the ground that it purported to account for but one-third of the estate of the testator, whereas under the last will and testament and the decree of distribution the trustees took the entire estate of the testator as trustees, and it was urged in the argument that certain trusts designated in the will were void under the statute of the state as being in restraint of alienation, and therefore that the whole of the estate of the decedent had vested in the trustees for the use and benefit of the beneficiaries who were objecting to the accounts. It was apparently true that the trusts against which objection was made were subject to this objection, and that therefore they ought to have been disregarded in the decree of distribution. As it had, however, on the contrary, proceeded upon the theory that such trusts were valid, it was held that the power of the trustees and the extent of their title were conclusively fixed by the decree of distribution, and therefore that it was not open to the beneficiaries to urge that, under the will, the whole of the property was held in trust for them. Substantially the same decision had been made of the same question in Crew v. Pratt, 119 Cal. 131, and in Goldtree v. Allison, 119 Cal. 344.

DISTRIBUTION-DECREES

OF-CONCLUSIVENESS.-A decree of a court of competent jurisdiction ordering final distribution can only be attacked collaterally by proof showing that it is void: Lowry v. McMillan, 35 Miss. 147; 72 Am. Dec. 119, and note. It

is as conclusive, so far as the authority of that court over the subject is concerned, as a decree in chancery or the judgment of a court of law: Slatter v. Glover, 14 Ala. 648; 48 Am. Dec. 118. See monographic note to Green v. Creighton, 48 Am. Dec. 744-751, and extended note to McPherson v. Cunliff, 14 Am. Dec. 663-665.

TRUSTS-POWER OF TRUSTEE TO SELL PROPERTY.-A trustee is presumed to hold property for administration and not for sale: Marbury v. Ehlen, 72 Md. 206; 20 Am. St. Rep. 467. A power to sell must be found in the instrument vesting the estate in the trustee, or in some other instrument executed or assented to by him and declaring the purposes of the trust. While it is certain that such a power need not be conferred upon him in express or direct terms, but may be implied from the purposes of the trust, it is not probable that he would be conceded such power where the trust estate is conferred upon him without any declaration being anywhere made regarding the extent of his powers or the purposes of the trust: See monographic note to Tyler v. Herring, 19 Am. St. Rep. 270, 271. The determining consideration in any case is the intention of the trustor which may be enunciated clearly, or may be indicated by implication from the language used: Monographic note to Rankin v. Rankin, 87 Am. Dec. 209.

KENNEDY V. CHASE.

[119 CALIFORNIA, 637.]

NEGLIGENCE.-There can be no negligence without the existence of a corresponding duty.

MASTER AND SERVANT.-The duty of a master to furnish a safe place in which his servant is to work is limited to the premises where he is required for the purposes of his employment to be. If he goes to other parts of the premises for some object of his own. he assumes the risk arising from their dangerous condition.

MASTER AND SERVANT-INJURY TO A SERVANT BY FALLING THROUGH A HATCHWAY WHERE HIS DUTIES DO NOT REQUIRE HIM TO BE.-Conceding that an employé has the right to safe ingress and egress to and from the place where he is required to work, and, as incident to his employment, to remove some of his garments and leave them on the premises and to return therefor, yet if he selects a place remote from that where he is at work and is injured by falling through an open hatchway while attempting to get such garments, his master is not liable. In going so far from the place where it was his duty to work, he was no more than a mere licensee at sufferance to whom the master owed no duty.

MASTER AND SERVANT-LICENSEE, SERVANT, WHEN BECOMES.-A servant or employé who leaves that portion of his master's premises where his duties require him to be and goes about his own convenience, becomes a licensee, and the master's responsibility for his safety is no greater than if he were any other licensee.

Reddy, Campbell & Metson, for the appellant.

Joseph Mee, R. Percy Wright and T. H. Osmont, for the respondents.

638 VAN FLEET, J. Appeal by plaintiff from a judgment of nonsuit. The complaint alleged that plaintiff was employed by defendants as a stevedore to assist in placing ballast in the ship "John A. Briggs"; that defendants negligently and carelessly left open and unguarded a certain trimming hatch, in a dark and dangerous place on the freight deck of said ship, where plaintiff, "in performing his duties as such stevedore, and in the course of his employment, was compelled to go"; that plaintiff, while in the performance of his duties, fell through said hatchway and suffered the injury complained of. It was alleged that the defendant Chase was a master stevedore, and that the other defendants were the owners of the vessel.

The evidence, an understanding of which will be facilitated by reference to the accompanying diagram, tended to show these facts:

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639 The defendant Chase was employed as master stevedore to put ballast in the after part of the ship mentioned, which was lying at the wharf in the port of San Francisco, and was engaged in that task. The work was being accomplished by bringing the ballast material on a lighter alongside the vessel, to the point marked "porthole," shoveling it from the lighter onto a staging erected on the outside of the ship, between the lighter deck and the porthole, and from thence through the porthole onto the freight deck, where it was taken and dropped through the hatchways into the hold of the ship. On the day in question plaintiff was employed by the foreman of defendant Chase, as a laborer, to assist in putting in the ballast, his work being confined to the lighter, and consisting (in company with several fellow laborers) in shoveling ballast from the deck of the lighter onto the staging.

The mode of ingress and egress for the men to and from their work was by means of a plank from the dock to the main deck; by a ladder down the "after hatch," as shown on the diagram, to the freight deck, and thence, for those working on the lighter and staging, from the after hatch through the porthole.

Plaintiff went to work about 1 o'clock in the afternoon. On reaching the freight deck, instead of going direct to the porthole, he, without direction or request from anyone, walked forward to the point marked "main hatch," and left his coat on the coaming of that hatch, at "Y"; on quitting work at 6 o'clock in the evening plaintiff returned through the porthole, went again to the main hatch, secured his coat and started, as he testified, by a direct course from that point to the ladder at the after hatch to go ashore, but on his way, in some manner not made entirely clear, managed to walk into the trimming hatch, marked "A," fell through into the hold and was injured.

When plaintiff went to work it was light between decks, but 640 at the hour of quitting it was quite dark, but for the light afforded by a couple of candles; and as to the sufficiency of this to enable one to see his way clearly there is some conflict-several of the men who were preparing at the time to leave the vessel testifying that they could see the hatchway through which plaintiff fell, and warned plaintiff to look out for it, but plaintiff testifying that he could not see it, and heard no warning until he was falling. It did appear, however, without conflict that there was a candle held near the after hatch to light the way out.

The trimming hatch in question, like the others of its kind shown on the diagram, was a small hatchway used for putting in and trimming ballast; it was flush with the deck, without coaming, and had, like the others, been open all the afternoon, although it had not been used that day, as a part of the cargo of coal which yet remained in the forward part of the hold lay too near it; for this reason the ballast put in that afternoon had been put through hatches "B" and "D" only.

In substantial effect this was the showing made by plaintiff's evidence. It may be added that there was some slight discrepancy between the testimony of the plaintiff and that of his other witnesses as to the correctness of the diagram referred to, particularly as to the location of the porthole at which the lighter lay-the plaintiff being inclined to locate it about equidistant between the main and after hatches; but, if the fact be material, his testimony shows such uncertainty and apparent confusion in this, and one or two other respects relative to the situation of physical objects on the deck, and is so entirely overborne by the testimony of all his other witnesses on the subject, that it may be said to appear without substantial conflict that the diagram correctly shows, approximately, the relative positions of the various objects designated thereon, including the porthole.

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This evidence shows no negligence on the part of defendants, and the nonsuit was properly granted on that ground. There cannot be neglect without the existence of a corresponding duty, and under the circumstances shown it is clear that defendants were under no legal duty or obligation to protect plaintiff from the injury he received. While an employer is required to furnish his servant with a reasonably safe place in which to work, this duty is limited to the premises where the employé is required, 641 for the purposes of his employment, to be; it does not extend to his protection while upon private excursions outside of those limits, taken solely on his own account. Plaintiff's work was upon the lighter, and it may be conceded that he had a right of safe ingress thereto and egress therefrom; but in going forward to the main hatch plaintiff was not within the reasonable exercise of any right which he had on board the ship by reason of his employment. Conceding his privilege, as incident to his employment, to remove and deposit his coat while working, and to be protected while in the reasonable exercise of such right, it was neither reasonable nor necessary to select for the purpose a point so remote from his work. He had as well chosen to hang his coat in the rigging, or at the yardarm. No reason appears why he could not, like others of his fellow laborers, have laid the garment on the lighter, or in some place more convenient to the place of his employment, or the point of departure from the ship. His duty required him to leave the ship by as direct a route as practicable; he had no general right on board, but solely a right for the purposes of his special employment. In going where he did he not only went entirely out of his way, but was in pursuit of an object relating solely to his own personal convenience; and while, perhaps, not in strictness a trespasser, he was at best but a mere licensee at sufferance, to whom the defendants at the time owed no duty.

An employé who leaves that portion of his master's premises where his duties require him to be, and goes about to his own. convenience, becomes a licensee: Wright v. Rawson, 52 Iowa, 329; 35 Am. Rep. 275; Pfeiffer v. Ringler, 12 Daly, 437. The same doctrine is recognized in Kauffman v. Maier, 94 Cal. 269, 278.

It is conceded that the evidence does not show any employment of plaintiff by the owners of the vessel, but it is claimed that, plaintiff being lawfully upon the ship, it was the duty of the owners, for a neglect of which they are responsible, not to leave unguarded holes upon the deck-upon the principle that

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