⚫304 bill charged, and the relief which it asked was based upon the conception, that the agreement was void, it follows that the relief which the bill sought could only have proceeded upon the hypothesis that the estate had not been closed, and was yet subject to be administered in the proper court. And that this was the theory of the bill is shown by the prayer that the court appoint a master to liquidate and settle the estates. That it embraces authority to entertain and | question if the same was valid. But, as the dispose of all actions, whether real or personal, necessarily incidental to the accomplishment of the powers granted over estates, is shown by the provisions of article 1001 of the same Code. The similarity between the provisions of the Louisiana Code as to the community, and the analogy which obtains between the provisions of the Louisiana Code of Practice and the Code of Civil Procedure of Porto Rico, concerning the power of the judge or court charged with the administration of estates, whether testamentary or intestate, especially where questions concerning the liquidation of a community which has existed between husband and wife is concerned, make pertinent the observations of the supreme court of Louisiana in Lawson v. Ripley, 17 La. 238, 248, where it was said: "The succession of the husband is therefore so far connected with the community as to form together, at the time of his death, an entire mass, called his estate, which is not only liable for the payment of the common debts, but also for the portion of the wife or her heirs to the residue, if they have not renounced. The widow or her representatives have consequently such an interest in the mass of the estate or succession of the husband, with regard to whom no distinction is made between his separate property and that of the community until the net proceeds or amount of the acquests and gains are ascertained, that their assistance at the inventory and their concurrence at all the proceedings relative thereto, which are to be carried on contradictorily with them, are generally required. All such proceedings take place before the court of probates, who, according to law, has exclusive jurisdiction of all the matters concerning the estate, particularly in those cases where it is in a course of administration; and it does not occur to us that separate proceedings can properly be had in relation to the community until after the settlement of the husband's estate and the payment of the common debts, a division of the residue of the acquests and gains is to be made between the heirs of the deceased and the surviving spouse; and even then the affairs of the husband's estate, administered under the control and supervision of the court of probates, are to be inquired into and sometimes fully investigated." True it is that by article 1046 of the Porto Rican Code of Civil Procedure the parties interested in an estate which is unsettled and under the dominion of the proper court are given power to terminate the estate by a voluntary agreement between them, and that such may have been the effect of the agreement between the parties here in Coming to consider the subject from the point of view of the averments as to the nullity of the agreement and the fraudulent simulation of the sales, it is clear that the relief sought in this regard was merely ancillary to the prayer for the liquidation and settlement of the estates. As we take judicial notice of the fact that the distinctions between law and equity in a technical sense do not obtain in the local law of Porto Rico, and, as under that law a court charged with the administration of an estate is one of general as well as probate jurisdiction, and has full power over all personal and real actions concerning the estate, it follows that the local court had, in the nature of things, power to determine, as an incident to its general and probate authority, whether the estate had been closed by the agreement, and hence to decide whether that agreement was void, and had also jurisdiction and power to determine whether the property which had been transferred to the mother by the agreement yet remained a part of the estate, and, as an incident to SO doing, to decide the questions of fraud and simulation which were alleged in the bill. Of course, the general scope of the authority which the court then possessed endowed it with the power to liquidate and settle the community which existed between the husband and wife, as that liquidation was of necessity involved in the settlement of the estate. Speaking on this latter subject in Lawson v. Ripley, supra, the supreme court of Louisiana said: "But it is contended that this would be giving to the court of probates the right of trying questions of title. Probate courts have certainly no power to try titles to real estate, and to decide directly on the validity of such titles; but, as this court has said in the case of Gill v. Phillips, 6 Mart. N. S. 298, 'those courts possess all powers necessary to carry their jurisdiction into effect; and when, in the exercise of that jurisdiction, questions arise collaterally, they must, of necessity, decide them; for if they could not no other court could.' And, 'any other construction would present a singular species of judicial power,—the right to decree a partition, without the authority to inquire into the grounds on which it *305 *306 should be ordered, or the portions that each | during high water will not be disturbed by of the parties should take. The end would the Federal Supreme Court, where it has thus be conceded without the means.' Bail- been approved by both the trial and terrilio v. Wilson, 5 Mart. N. S. 217. We are torial supreme courts, and there was evisatisfied that whenever a question of title dence that the bridge had once before given to real property and slaves arises collateral-way in time of high water, and was rebuilt without change of plan. Master and servant-contributory neg ly in the court of probates, and an examination of it becomes necessary in order to give the court the means of arriving at a correct conclusion on matters of which it has jurisdiction, it must take cognizance of such title, at least for the purpose of ascertaining which property belongs to either of the spouses respectively or to the community." The decree is reversed and the case is remanded to the court below, with directions to dismiss the bill for want of jurisdiction over the subject-matter. (209 U. S. 275) V. WILLIAM N. WILSON. Appeal-waiver of error. 1. Any supposed error committed by the trial court in overruling a demurrer to the evidence is waived where the defendant thereafter proceeds to introduce testimony in its own behalf. * Appeal - harmless error. 2. The refusal, based upon the state of the pleadings, to permit a corporate defendant to prove facts tending to show that the partnership out of which it grew was the real party in interest, does not affect "substantial rights" within the meaning of Wilson's Okla. Ann. Stat. chap. 66, art. 8, § 146, governing the reversal of judgments, where no testimony on that point was offered after the pleadings were amended, and the incorporation was evidently merely for business convenience, the partners taking nearly all the stock in their own names, and was followed by no change in the manner of doing business. ** Appeal - sufficiency of general excep tion. 3. An exception taken as an entirety to the ruling of the court upon several requested instructions is not sufficient to raise the correctness of the ruling. † Master and servant-who are fellow servants. 4. A fireman employed on a locomotive, and engaged in the movement of a train, is not a fellow servant with the superintendent of construction and the foreman of a bridge gang, who are present and engaged in supervising and directing the work on the bridge. it Appeal gence. review of verdict negli 5. A verdict finding that a construction company was guilty of negligence toward a locomotive fireman in its employ who was injured by the giving way of a pile bridge ligence. Statement by Mr. Justice Brewer: On June 9, 1902, Wilson, the defendant in error, was injured by the giving way of a railroad bridge across the Canadian river in the territory of Oklahoma. The bridge was on a new line of railroad, which was being constructed from*Oklahoma City to Quanah, Texas. The petition, filed October 18, 1902, in the district court of the third judicial district, sitting in and for the county of Oklahoma, charged that the defendant, now plaintiff in error, was a subcontractor and constructing a portion of the railroad, including therein the crossing of the Canadian river; that Wilson was a locomotive fireman employed by the defendant. The circumstances of the injury were stated in the petition, and negligence on the part of the defendant was averred. A trial resulted in a verdict and judgment in favor of the plaintiff for $5,500. This judgment was affirmed hy the supreme court of the territory (17 Okla. 355, 87 Pac. 320), and thence brought here by writ of error. Messrs. Arthur G. Moseley and Louis B. Eppstein for plaintiff in error. Messrs. James R. Keaton, John W. Shartel, Frank Wells, and John H. Wright for defendant in error. "Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 981. For other definitions, see Words and Phrases, vol. 3, pp. 2716-2730; vol. 8, p. 7662 Mr. Justice Brewer delivered the opinion | tiff contracted and who was doing this of the court: work." The court thereupon announced its decision to neither permit nor deny the defendant leave to amend at that time, say When the plaintiff rested the court overruled a demurrer to the evidence. This ruling, however, cannot avail the defendant, whatever the defects then in the case, foring: thereafter it proceeded to introduce testimony in its own behalf, and this waived any supposed error. Accident Ins. Co. v. Crandal, 120 U. S. 529, 530, 30 L. ed. 741, 742, 7 Sup. Ct. Rep. 685; Robertson v. Perkins, 129 U. S. 233, 236, 32 L. ed. 686, 687, 9 Sup. Ct. Rep. 279; Bogk v. Gassert, 149 U. S. 17, 23, 37 L. ed. 631, 634, 13 Sup. Ct. Rep. 738; Campbell v. Haverhill, 155 U. S. 610, 39 L. ed. 280, 15 Sup. Ct. Rep. 217. The petition averred that one Pratt was defendant's superintendent of construction and one Fallahey foreman of the gang engaged in work on the bridge, and that the plaintiff was employed by the defendant through its general superintendent. The answer, in addition to certain special defenses, was an unverified general denial, and the court held that under the pleadings the defendant was estopped from showing that the foreman of the bridge gang and the super intendent of construction were not in its em ploy. This ruling was based upon 8 3986 of the Oklahoma General Statutes, which provides that "in all actions allegations of any appointment or authority shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney." Defendant also sought to prove that plaintiff was not in its employ; that it in fact did not exist at the time of the accident; that the contract for the construction work was taken by a partnership, McCabe & Steen. The answer of defendant alleged that the injury to plaintiff "was due to one of the risks assumed by the plaintiff in his contract of employment with this defendant." The general denial in the answer as originally filed was, in terms, of "the allegations contained in the petition in manner and form as therein set forth." During the progress of the trial the defendant asked leave to amend by striking out the words The Court: We will go ahead now and treat this answer as a general denial at this time, and will reserve my ruling on your motion until I see further; I will fix the terms later. and the record shows these facts: The Court: The defendant will be permitted to amend the general denial by striking out those words (the words heretofore referred to) by the payment of half of the costs of court to this date, except the witnesses of the plaintiff, the fees; that is, provided, however, that if a continuance by reason of this amendment is taken by the plaintiff, the defendant shall be taxed with tinue it on account of some showing made all the costs, unless the court should conby the plaintiff; then, of course, the costs occasioned by the amendment would follow. Mr. Keaton: Counsel for plaintiff here states that if it is permitted to show by testimony that the McCabe & Steen Construction Company were not building this road tiff will have to make a showing and ask and not building the bridge, then the plainfor a continuance of the case in order to reform the pleadings. Mr. Moseley: Well, we have not offered that testimony yet. The Court: You gentlemen have heard my statement that if a continuance should be made necessary, then all the costs will follow. Whereupon the defendant amends its answer by striking out certain words, the same being "in manner and form as therein set forth," which appeared between the word "petition" and the word "and" in the third line of first paragraph of said answer. It will be observed that counsel for the defendant stated that he had not yet of "in manner and form as therein set forth," to which application the plaintiff objected, saying: "As far as the general denial being suffered testimony to show that the McCabe & ficient to permit the defendant admitting that it is the proper defendant, and to raise further issues as far as it not being guilty of any negligence, admitting that it was the defendant and was doing the contracting work there, why we don't care anything about it; but we do object to their being permitted to amend their answer in any way so as to raise the issue that this defendant is not the defendant with whom the plain Steen Construction Company was not building the road and the bridge, and the record shows that thereafter there was no testimony in any form offered to establish that fact. Now whatever might have been competent testimony under the answer as amended, it appears by the statement of counsel that no testimony respecting the matter had been offered, and the record shows that none was thereafter offered. It $279 560 28 SUPREME COURT REPORTER. OCT. TERM fireman employed on a locomotive, and his work was in a separate department from that of the employees engaged in the con for the application of the doctrine of fellow servant. It would be carrying that doctrine too far to hold that one employed as a fireman and engaged in the movement of a train was a fellow servant with the superintendent of construction and the foreman of a bridge gang, both of whom were present and engaged in supervising and di must be stated, however, that prior to the ruling just quoted it had been shown that within six weeks after the injury, and while the work of construction was still in prog-struction of the bridge. This is not a case ress, the partnership conveyed all its interest to the corporation, the two members of the partnership of McCabe & Steen taking 96 per cent of the corporate stock. This transfer was of so little significance that it was unknown to its counsel at the time he filed the answer, and from his statement he evidently did not care to press any defense on that ground. The Oklahoma stat-recting the work on the bridge. These latute provides: "The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Wilson's Rev. & Anno. Stat. chap. 66, art. 8, § 146. ter employees represented the principal in an entirely different line of employment from that in which the plaintiff was engaged, were discharging a positive duty of the master to provide a safe and suitable place and structures in and upon which its employees were to do their work,-Union P. R. Co. v. O'Brien, 161 U. S. 451, 40 L ed. 766, 16 Sup. Ct. Rep. 618, and cases cited in the opinion, and, in discharging that positive duty they, and not he, were the representatives of the defendant. Their action, so far as that work was concerned, was the action of the defendant. With reference to the second question, that of negligence on the part of the defendant, it must be premised that this is largely a question of fact, and a question of fact is submitted to the decision of a jury. Notwithstanding the able argument of counsel for defendant in endeavoring to show that the defendant did everything that prudence required for the purpose of making the bridge safe, we are not satisfied that the testimony is so convincing in this respect as to justify us in setting aside the verdict, of the jury, approved as it was by the trial and supreme courts of Oklahoma. There is, of course, resting upon the employer the With reference to these several matters thus grouped together, we are of opinion that the Oklahoma statutes we have just quoted sufficiently answer any claim of error. The litigation proceeded upon the theory that the corporation was the real party in interest, and while the partnership and the corporation were not identical, yet the partners were substantially the corporation, and the change in organization did not materially affect the rights of the plaintiff. Evidently, for business convenience, the partners concluded to organize as a corporation; and yet they took the bulk of the stock in their own names. They were practically the owners, and it does not appear that there was any change in the manner of doing business or in the relations of the employer to the employees. To hold, especially after this admission of counsel and his failure to offer any further testimony on the subject, that the substantial rights | duty of providing a suitable and safe place of the defendant were affected by any of these matters, would be sacrificing substance to form. The objections were properly disregarded by the Oklahoma courts, both trial and supreme. While the defendant asked several instructions, the exception taken was not to the ruling on each instruction separately, but to them as an entirety. This plainly was insufficient. Fullenwider v. Ewing, 25 Kan. 69; Bailey v. Dodge, 28 Kan. 72; Fleming v. Latham, 48 Kan. 773, 30 Pac. 166. There remain for consideration these matters: One, the contention that the plaintiff was a fellow servant with the foreman of the gang at work on the bridge and the superintendent of construction; another, the question of negligence on the part of the defendant; and a third, contributory negligence. With reference to the first, it must be borne in mind that the plaintiff was a and structures in and upon which its employees are called to do their work, and this plaintiff was charged with no duty in respect thereto. A full statement of the testimony would unnecessarily prolong this opinion, and a brief outline must suffice. The bridge was a pile bridge, the piles having been, as claimed, driven down to solid rock. This rock substratum sloped from the north to the south side of the river, the first bent striking the rock at 8 or 10 feet. At the place where the bridge sank the depth to the rock was 18 feet. Above the rock was quicksand, and the piles were driven through it. The bridge was originally constructed some weeks before, but during high water a portion of it had washed out. It was rebuilt upon the same plan and with appar ently no further protection than when orig inally constructed. At the time of the in 282 (209 U. S. 264) ADOLPH F. LIPPHARD, William A. V. IDA P. HUMPHREY, John F. Pyle, George presumption Evidence knowledge of contents of will by illiterate testatrix. jury there was again high water, and that | notice. We find no error in the rulings of high water made a roaring torrent of the the Supreme Court of Oklahoma, and its flowing stream. When the train upon which judgment is affirmed. the plaintiff was fireman came to the river it was found that upon the bridge there had been placed a loaded flat car. Disengaging itself from the balance of the train, the locomotive moved onto the bridge and pulled that car off. As it did so there was a slight subsidence at the place where the bridge finally gave way. So the engine returned to the north bank of the river, while the gang of employees, under the direction of the foreman and the superintendent of construction, proceeded to place a false span underneath the bridge at the point of subsidence, and after awhile notified the train employees that the bridge was safe. Thereupon the engine moved slowly onto the bridge, and when it got to the place where there had been a prior subsidence the bridge sank so as to drop the engine into the river, and in that way the plaintiff was injured. Now it appears that by actual experience the bridge as originally constructed gave way in time of high water, and yet was rebuilt, without change of plan and without adding further protection. When the high water returned, as it did at the time of the injury, there was again a giving way of the bridge. From this general outline of the case (filled, of course, more in detail by the testimony as to the circumstances of the work and the injury) it is apparent that there was a question whether the defendant had made suita 1. A testatrix will not be presumed ignorant of the contents of a will, which was not read to her at the time of execution, because she cannot read, where there is a total lack of proof of fraud, undue influence, or want of testamentary capacity attending the execution of the will. Evidence declarations of testatrix. 2. Declarations of an illiterate testatrix prior and subsequent to the date of her will, as to how she intended to dispose, or had disposed, of her property, are properly held inadmissible to show that she was ignorant of its contents, where there was no evidence of testamentary incapacity at the date of the will, and nothing in the evidence excluded from which it could be inferred, and there was no evidence of fraud or undue influence.* [No. 188.] 1908. ble provision for securing a safe structure Argued March 20, 1908. Decided April 6, upon which the trains should pass; and, upon a review of all the testimony, we do not feel that we are justified in disturbing Court of Appeals of the District of Cothe verdict, approved as it was by the Oklahoma courts. Thirdly, it is insisted that the plaintiff was guilty of contributory negligence, in that, when the engine moved onto the bridge, at the time of the injury, the engineer said to him that he need not stay on the engine, but might go back on the train. But his place of work was in the engine, the same as that of the engineer; and because he did not avail himself of the suggestion, and leave that place, it can hardly be said that he was guilty of contributory negligence. He stayed at his regular place of work and where his ordinary duty called him to be, and it would be a harsh rule to hold that a man so doing was guilty of contributory negligence because he did not avail himself of a permission to occupy a different and perhaps a safer place; especially as both the engineer and himself were advised by the construction force that the bridge was safe. These are all the matters that call for Ed. Note -For cases in point, see Cent. Dig. 28 S. C.-36. N ERROR to and APPEAL from the lumbia to review a decree which affirmed a decree of the Supreme Court of the District, admitting a will to probate. Affirmed. See same case below, 28 App. D. C. 355. Statement by Mr. Chief Justice Fuller: Loraine Lipphard, of the District of Columbia, died December 9, 1903, leaving a paper writing purporting to be her last will and testament, bearing date April 27, 1898, duly attested by three witnesses, and naming Rev. Mr. Meador as executor. Decedent left surviving her as her next of kin and sole heirs at law her husband, Adolph F. Lipphard, Sr.; three sons, named John, William A., and Adolph F. Lipphard, Jr.; two daughters, named Sophia L. Hellen, born Lipphard, and Capitola L. Anderson, born Lipphard; sixteen grandchildren, four of whom were infants under the age of twenty-one years. All the other of her heirs and next of kin were of lawful age. Decedent's property consisted of a small quantity of personal property, valued at vol. 49, Wills, § 419. |