fore and after accident; "loss" meaning physi- [ correctness of this ruling is before this cal loss of a member. court in proper proceedings so far as the record shows, and we think it must be sustained. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Loss.] [1] This question is one solely of statutory Appeal from Supreme Judicial Court, construction, and in construing this statute Franklin County, in Equity. Proceedings for compensation under the Workmen's Compensation Act by Clarence N. Merchant, employé, opposed by the Maine & New Hampshire Granite Corporation, employer. Compensation was denied and the employé appeals. Appeal dismissed. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ. Sumner P. Mills, of Farmington, for appli cant. L. E. Henry, of Boston, Mass., and C. P. Conners, of Bangor, for respondents. CORNISH, C. J. This claimant under the Workmen's Compensation Act was an employé of the Maine & New Hampshire Granite Corporation, and met with an accident on November 21, 1917. The injury consisted of a laceration of the back of the left hand, which affected the extensor muscles controlling the third and fourth fingers; the third finger being drawn toward the palm of the hand at an angle of about 45 degrees, and the fourth finger at an angle of about 90 degrees. These two fingers were thereby rendered practically useless. It is agreed that the injury arose out of and in the course of the employment and that the earning capacity of the claimant, who is a painter, has not been diminished by the accident. The real and only issue is whether the claimant has "lost" these two fingers within the contemplation of R. S. c. 50, § 16, and should receive the compensation specified therein, to wit: the words are to be interpreted in the sense in which they are commonly understood, "according to the common meaning of the language," R. S. c. 1, § 6, par. 1, taking into consideration the context and the subjectmatter relative to which they are employed. Let us apply this familiar rule. [2] Apart from the context of the statute, the "loss" of a member in the ordinary acceptation of the term implies a physical separation. To lose, in its primary sense, is "to part from or be separated from." Standard Dic. When in ordinary conversa tion it is said that one has lost his hand or his arm or his leg, nothing else is understood than an actual severance. It is true that for the sufferer the loss of the use of a member may be equivalent to the loss of the member itself so long as the disuse remains, but the two things are quite distinct, and if one has lost the use of a member it would be so described, and never as the loss of the member. "It may be that the disability would be as great as though the hand or foot was gone, but courts have no authority to extend the terms of the law beyond its plain provisions." Bigham v. Clubb, 42 Tex. Civ. App. 312, 95 S. W. 675, a case involving exemption from the payment of a poll tax because of the "loss" of a hand or foot. Analyzing the statute under consideration, we find that the common meaning of the language is preserved. Section 14 of R. S. c. 50, covers compensation for total disability, that is, while the actual incapacity for work is total, and prescribes the method of computation. There is added a petition as to what might be termed, presumptive total incapac ity: "In the following cases it shall, for the pur"For the loss of the third finger, one-half poses of this act, be conclusively presumed that the average weekly wages during eighteen weeks. the injury resulted in permanent total disability, For the loss of the fourth finger, one- to wit: The total and irrevocable loss of sight half the average weekly wages during fifteen in both eyes, the loss of both feet at or above weeks" the ankle, the loss of both hands at or above the wrist, the loss of one hand and one foot, an injury to the spine resulting in permanent and complete paralysis of the legs or arms," etc. -or whether he has suffered a partial disability and should be compensated as provided in section 15; the basis of compensation being the difference in his earning ca. pacity before and after the accident. The claimant contends for the former construction, and urges that the loss of the use of the third and fourth fingers must be construed as a loss of those fingers which entitle him to the specified amounts, without regard to the question whether his earning capacity has or has not been lessened. The chairman of the Industrial Commission overruled this contention, and fixed the This language is most significant as distinguishing sharply between loss and loss of use and as specifying the one or the other according as the one or the other is intended. Thus the first clause does not say the loss of both eyes, which would mean removal, but the total and irrevocable loss of sight in both eyes, which is but another expression for total loss of use. The loss of the eye is one thing, the loss of sight, which means the loss clause provides for the loss of both feet at * Throughout these sections when loss of use without removal or severance is contemplated, it is so stated in unambiguous words, and when "loss" is used it means loss in the ordinary acceptation of the term; that is, the physical loss of a member. It may well be that in fixing an arbitrary compensation for the loss of these various parts the Legislature purposely refrained from extending these provisions to loss of use in all but the two excepted instances before referred to, for the reason that a use which might be deemed loss at the beginning might be regained in whole or in part long before the expiration of the arbitrarily fixed period, while the loss by severance is irreparable. Some uncertainty might exist with regard to the one, none in regard to the other. Our attention has been called by the claimant to various cases where a loss of use has been deemed equivalent to loss. These cases, however, arose under certificates issued by fraternal beneficiary societies, or policies of insurance issued by health or accident associations and the plaintiff's rights were based upon the language of the particular contracts. Such contracts are always held to be construed in favor of the insured. No case has been cited to us, nor have we found any arising under the Workmen's Compensation Act which holds that the "loss It would be presumed that the word "loss" of use" should be given the full effect of should have the same meaning in this section | "loss." as in section 14, as they are parts of the On the other hand, there is approved same act, were there no internal and in-authority sustaining our conclusion under dependent evidence to confirm it. But such Workmen's Compensation Acts. Packer v. evidence exists. For instance, not only are Olds Motor Works, 195 Mich. 497, 162 N. W. there provisions for loss of a thumb, of a fin- 80; Adomites v. Royal Furniture Co., 196 ger and of a toe, but also for the loss of the Mich. 498, 162 N. W. 965; Northwestern first phalange of a thumb, of a finger or Fuel Co. v. Industrial Commission, 161 Wis. of a toe which shall be considered as a loss 450, 152 N. W. 856, Ann. Cas. 1918A, 533, and of one-half of such thumb, finger or toe, extended note, the introduction of which is while the loss of more than one phalange as follows: shall be considered the loss of the entire thumb or finger or toe. This, as phrased, must contemplate severance. "The general rule deducible from the cases cited throughout this note is that unless a Workmen's Compensation Act provides that when a member is so impaired as to be permanently incapable of use compensation shall be member is construed to mean loss by severance awarded as for the 'loss' thereof, 'loss' of a only." See, also, the definitions in Grammici v. Zinn, 219 N. Y. 322, 114 N. E. 397. Our conclusion, therefore, is that the ruling of the chairman of the Industrial Commission was without error and the entry must be: Appeal dismissed. 1. APPEAL AND ERROR 6 EXCEPTIONS RULINGS OF LAW-OPENING AND CLOSING TRIAL. Rulings of supreme court of probate denying appealing will contestant's claim of right of opening and closing, and admitting testimony offered by proponent to make formal proof of will, were not findings of fact, and not discretionary, but rulings of law, so that, if erroneous and prejudicial, exceptions, as authorized by Rev. St. c. 82, § 55, afforded contestant a proper, and perhaps the only appropriate, remedy, having been an opinion and direction in a civil proceeding of the court held by one justice. 2 WILLS 382-PROBATE-INFLUENCE OF VERDICT ON HEARING ON APPEAL. Supreme Judicial Court, in a probate appeal, where it has not the evidence before it, cannot hold that the supreme court of probate, in making decree granting or denying probate, cannot under any circumstances be influenced by a jury verdict, a holding involved in sustaining the contention, that denial to the appealing contestant of the right to open and close could not have been prejudicial, inasmuch as a jury verdict in a probate appeal is advisory only. 3. APPEAL AND ERROR 87(5)-TRIAL 25(2)-RIGHT TO OPEN AND CLOSE-LEGAL CHARACTER-EXCEPTIONS. The right of opening and closing is a legal right, not a mere matter of judicial discretion, and, unless clearly shown to be nonprejudicial, exceptions lie to its erroneous denial. 4. TRIAL 25(5) — RIGHT TO OPEN AND CLOSE-TEST. The right to open and close belongs to the party against whom judgment would be rendered if no evidence were introduced on either side. contestant excepts to decree of probate. Exceptions overruled. Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ. A. S. Littlefield, of Rockland, for appellant. Edward C. Payson and Gilford B. Butler, both of Rockland, for appellee. DEASY, J. Appeal to the supreme court of probate from allowance of will of Barney F. Rawley by the probate court of Knox county. The only specified reason of appeal is undue influence. A jury trial was asked and ordered at the September term, 1918. The contestant claimed the right of opening and closing, and objected to testimony offered by the appellee to make formal proof of the will. This claim was denied and objection overruled by the presiding justice. To these rulings the contestant excepted, and filed his bill of exceptions. After hearing the judge made his decree affirming that of the judge of probate. To this decree the contestant excepted, and filed a second bill of exceptions. Both bills of exceptions were allowed, but to the first the presiding justice appended this clause: "The foregoing exceptions are therefore allowed, if, in the opinion of the law court, the same are allowable and the appellant entitled to have them allowed." Allowance of Exceptions. These exceptions were properly allowed. [1, 2] The rulings were not findings of fact and not discretionary. They were rulings of law. If erroneous and prejudicial, exceptions afford a proper, and perhaps the only, appropriate remedy. The rulings were an opinion and direction in a civil proceeding of "the court held by one justice." The contestant, being aggrieved, seasonably presented exceptions as authorized by R. S. c. 82, § 55. It may be urged, however, that the rulings which are the subject of the contestant's first bill of exceptions are not, and cannot be, prejudicial, inasmuch as a jury verdict in a probate appeal is advisory only, and the opinion of the presiding justice cannot be supposed to be affected by the course of procedure. To so hold in a case where we have not the evidence before us would be in effect Exceptions from Supreme Judicial Court, to say that a judge in making his decree Knox County, at Law. cannot under any circumstances be influenced by a jury verdict. Proceedings for probate of the will of Barney F. Rawley, contested by Ernest Rawley. From decree allowing the will, contestant appealed to the supreme court of probate, and, having excepted to rulings, legal right, not a mere matter of judicial The Right to Open and Close. [3] The right of opening and closing is a discretion. Unless clearly shown to be non- [ appeal, are impliedly admitted, and need not prejudicial, exceptions lie to its erroneous be proved. denial. Johnson v. Josephs, 75 Me. 547; Reed v. Reed, 115 Me. 441, 99 Atl. 181. [4] The right to open and close belongs to the party against whom judgment would be rendered if no evidence were introduced on either side. Reed v. Reed, supra, and cases cited. The answer is that, even if the admission were express and assented to by the appellee, it would not, without the consent of court, relieve the proponent of the primary duty of proving the will. Our reasoning relates to will cases. The law of wills is sui generis. It may well be [5, 6] The appellant contends that the ap- that in other probate appeals findings not pellee needs to produce no evidence in the specified in the reasons of appeal are to be first instance and none at all except to re-treated as admitted. Patrick v. Cowles, 45 fute, if he can, the appellant's evidence of N. H. 553. In most other cases courts orundue influence. He urges that, if no evi- der any judgment or make any decree withdence were produced by either party, it in the scope of the pleadings that the parwould be the duty of the court to affirm the ties agree upon; but no court would even decree of the probate court. The appellee by consent of all parties allow a will on its maintains, on the other hand, that notwith-face invalid. standing the only reason of appeal is undue influence, he would not be entitled to have the probate decree affirmed without introducing evidence to show the due execution of the will and the testator's soundness of mind at the time of its execution. The appellant presents an able and ingenious argument and brief in support of his contention. We hold, however, that the position of the appellee is correct. "Such transactions [agreements between parties in respect to wills], in fact, stand upon the footing of general dispositions by the rightful owners of property, and cannot operate to entitle to probate what was not, in the legal sense, a will." Schouler on Executors, § 72. In ordinary cases the court does not take the initiative, but "it is said the judge may ex officio, or at the The contestant's argument, condensed and instance of any one, cite the executor to prove summarized, is: 1. That he has the burden of proof on the only issue, i. e., the only point "affirmed on one side and denied on the other." Bouvier. But, admitting this to be true, still the appellee has the right to open and close if, in the first instance, to secure affirmance of decree, he has to prove "anything" (Johnson v. Josephs, supra), though not in issue according to the above definition (Dorr v. Tremont Savings Bank, 128 Mass. 359). 35. the will." Stebbins v. Lathrop, 4 Pick. 42. See, R. S. c. 68, § 4. Generally in litigation the parties before the court are alone interested. Not so in the case of wills. The rights of creditors, of heirs and legatees. the interests of persons unborn or unascertained, and the purpose of the testator are all to be guarded by the court. "There is a distinction between an ordinary 2. That the probate decree is not vacated suit at law and a proceeding in the probate of by, but continues in force after, the appeal. a will. In the former courts act upon the con"Further proceedings in pursuance of the only parties in interest; in the latter there are cessions of the parties of record, they being the matter appealed from cease." R. S. c. 67, § usually other persons interested, and that will But the decree, the contestant says, be concluded by the result, besides the proporemains in force, not indeed justifying "fur-nent and contestant and their rights are not to ther proceedings," such as appointment of be conceded away by the parties of record. * ** If the contestant takes issue upon a executor, but in respect to findings not challenged by reasons of appeal, making a prima admit the other facts necessary to be estabsingle point only, * he does not thereby facie case for affirmation. Thus the contest-lished, and thus relieve the proponent from his ant argues. But the status of a probate de-obligation to prove them. This he cannot do cree after appeal is not defined by the stat- by his pleadings, or otherwise." Williams v. ute. It is left to judicial interpretation, and Robinson, 42 Vt. 658, 1 Am. Rep. 359. courts generally, including our own, hold that an appeal vacates the decree. Gilman v. Gilman, 53 Me. 188; Tarbox v. Fisher, 50 Me. 237; Milliken v. Morey, 85 Me. 342, 27 Atl. 188; Williams v. Robinson, 42 Vt. 658, 1 Am. Rep. 359; Crowninshield V. Crowninshield, 68 Mass. (2 Gray) 528; Boynton v. Dyer, 18 Pick. 4. 3. That the appellant is confined to his reasons of appeal. Burpee v. Burpee, 109 Me. 383, 84 Atl. 648, and cases cited. That, this being true, due execution and legal capacity, not being specified in the reasons of There are other illustrations that might be cited showing the radical difference between proceedings involving the probate of a will and other litigation, including other probate appeals. The appellant relies with confidence upon the case of Patten v. Cilley (C. C.) 46 Fed. 892. The opinion in that case admits that"At preliminary stages the true rule is to require all the statutory essentials to be affirmatively shown. These provisions are for the prevention of fraud, and for the protection of all persons interested in the estate." But not so on appeal. parts, and one of them held for the granddaughter whose father executed the notes, and that the notes be a part of her trust estate, so that she could not complain that the trustees in their accounts charged her with having received interest on such notes which had not in fact been paid. reached 21, a third of the income for life, further providing that obligations representing advances to each of testator's sons-in-law should be considered a portion of the part of the estate to the income of which their daughters In other words, the case holds that the were entitled, held to have directed that tesprobate court may not, but the supreme tator's residuary estate, including notes execourt of probate may, base a decree allow-cuted to testator by the father of one of the ing or disallowing a will upon admission. granddaughters, should be divided into three The reason given, or suggested, is that in the preliminary stages "all interested parties may not be present," while on appeal the only interested parties are the appellants and appellees, and they are present. We think this reasoning is not sound. In a case involving the validity of a will the interested parties are the same on appeal as in the preliminary stages. If in the probate court, whose decrees are subject to appeal as a matter of right, parties interested need to be protected by the court's inquisition from improper and possibly collusive admissions, a fortiori they need such protection in a court whose decrees may be final. While not destroying the force of Patten v. Cilley as a precedent, it is significant to note that the case was subsequently remanded to the state court "distinctly upon the ground that the federal court had no jurisdiction of the subject-matter involved." In re Cilley (C. C.) 58 Fed. 977. The decree of the judge of probate in the case at bar was vacated by the appeal. The omission to challenge in the reasons of appeal due execution and legal capacity does not relieve the proponent of the will from the primary burden of proving such execution and capacity. Having this primary burden, the appellee had the right to open and close. Exceptions overruled. (12 Del. Ch. 84) SHRIVER v. DANBY et al. 3. BILLS AND NOTES 493(4) RECITAL OF CONSIDERATION-REBUTTING TESTIMONY. The use of the words "value received" in a note did not import a consideration, where the ESTATE. 10-NOTE TO EQUALIze Share in A note given to equalize the payee's share in the estate of the maker is without consideration. 5. GIFTS 32(1)—GIFT OF PROMissory Note. A promissory note cannot be the subject of a valid gift from the maker to the payee, even though duly delivered. CONSIDERATION. LOVE AND AFFECTION AS Natural love and affection do not constitute a good consideration, to validate a gift of a promissory note. 7. BILLS AND NOTES 350-HOLDER NOT IN DUE COURSE-POSITION. Where testator, to equalize a son-in-law's share in his estate, gave him a promissory note, which, long after maturity, and not for value, the son-in-law transferred to his daughter, that she might set it off against notes of her father to testator, she stood in no better position than her father in relation to testator's note to him, gift of which was invalid. Bill by Lucie Van A. Shriver against John H. Danby and the Equitable Guaranty & Trust Company, trustees under the will of (Court of Chancery of Delaware. March 18, William H. Gregg, deceased, and others. De 1919.) 1. WILLS 470, 472-INTENTION-RECONCILIATION OF INCONSISTENT PROVISION. The whole of a will must be considered to ascertain testamentary intention, and inconsistent provisions should be reconciled, if possible, so that a provision showing clearly testator's intention will not be rejected, because incon cree dismissing the bill. Bill to rectify accounts of trustees under the will of William H. Gregg, deceased. Heard on bill, answer, testimony of witnessThe facts appear in the es, and exhibits. opinion. Robert H. Richards, of Wilmington, and sistent with an earlier provision, but the earlier Ruby R. Vale, of Philadelphia, Pa., for com one will be modified by the later one. 2. WILLS 683- TRUST FOR GRANDDAUGHTERS-NOTES AS FORMING PART. Will which devised to trustees, to pay from income sum per week to testator's sister for life, to pay to two granddaughters $50 a month until they reached 21, and to pay to a daughter the third of the whole income for life, also to pay to each of the granddaughters, after she plainant. Hugh M. Morris, of Wilmington, for defendants. THE CHANCELLOR. William H. Gregg, who died in May, 1901, by his will, after making certain gifts, devised to trustees the residue of his estate, in trust to pay from the |