In the absence of the jury a son and daughter of the deceased testified that certain declarations were made by him, which were in substance that the conductor started the car while he was alighting. The judge excluded this testimony and ruled that under R. L. c. 175, § 66, the court must find that the statements were made by the deceased before he could pass upon the question whether the statements, if made, were made in good faith; and he declined to find that they were made at all, on the ground that he did not believe that a man whose brain had been the recipient of such a concussion could or did make such statements. The plaintiff excepted to the ruling and to this exclusion of evidence.

[1-3] The competency of witnesses and the admissibility of evidence that is offered is for the judge to determine. When, in order to pass upon the admissibility in law of a given piece of evidence, it becomes necessary to determine a preliminary question of fact, this also the judge necessarily must determine before he admits the evidence to the jury. During this proceeding he may direct that the jury be retired out of hearing, as was done in this case, and may hear evidence on both sides to ascertain the incidental fact. So far as his decision is of a question of fact merely, it is ordinarily conclusive unless it appears that the evidence was not sufficient to warrant the finding on which the court proceeded. Commonwealth v. Robinson, 146 Mass. 571, 16 N. E. 452; Dexter v. Thayer, 189 Mass. 114, 75 N. E. 223; 4 Wigmore on Evidence, § 2550; 8 Ann. Cas. 539 note. The practice in this commonwealth on certain issues in criminal cases such as confessions and dying declarations Is to allow the accused to reargue to the jury the preliminary question of fact where the evidence is let in against his objection. Commonwealth v. Reagan, 175 Mass. 335, 56 N. E. 577, 78 Am. St. Rep. 496; Commonwealth v. Tucker, 189 Mass. 457, 76 N. E. 127, 7 L. R. A. (N. S.) 1056. But even in these exceptional cases, if the evidence is excluded that is an end of the matter unless some question of law is reserved. As was said by Holmes, J., in Commonwealth v. Bishop, 165 Mass. 148, 42 N. E. 560, "the whole purpose of the preliminary action of the judge would be lost if in all cases the evidence had to be laid before the jury so as to give them the last word."

[4] Under the statute in question, it is a condition precedent to the admissibility of the declarations of a deceased person that the presiding judge shall determine, as a preliminary finding, that the declaration was

Dickinson v. Boston, 188 Mass. 597, 75 N. E. 68, 1 L. R. A. (N. S.) 664; Glidden v. U. S. Fidelity & Guaranty Co., 198 Mass. 109, 84 N. E. 143; Carroll v. Boston Elevated Railway, 210 Mass. 500, 96 N. E. 1040. Where the form of the statement made by the deceased leaves it doubtful whether it was a statement of fact or of opinion, it is for the court to decide in which sense it was made. Stone v. Commonwealth, 181 Mass. 438, 63 N. E. 1074; George v. George, 186 Mass. 75, 71 N. E. 85; Gray v. Kelley, 190 Mass. 184, 76 N. E. 724. Where, as in the case at bar, the judge cannot find the existence of the alleged declaration, it is difficult to conceive how he can find good faith and the other requisites plainly required by the statute. And we cannot say that he was not justified by the evidence in coming to the conclusion that the deceased was in such a mental state, in consequence of his injuries, to be unable to make the alleged statements. The plaintiff's exceptions relating to the preliminary inquiry must be overruled.

[5] The only other exception argued by the plaintiff is that to the following sentence in the judge's charge: "So if you find upon the weight of the testimony in this case that this old gentleman did fall off the platform while the car was in motion and as in substance as the testimony is on the defendant's side, then there is no ground for a recovery in this case." This exception also must be overruled.

The only evidence set out in the exceptions as introduced on the defendant's side is that the deceased was standing on the rear platform from Sullivan Square to the place of the accident, that the car was going at the rate of seven or eight miles an hour, that the deceased in some way fell off the car to the left, and that there was no chain in position. No breach of duty on the defendant's part appears in this. The evidence does not disclose that the car was equipped with chains or show anything that compelled the defendant to use them. Byron v. Lynn & Boston Railroad, 177 Mass. 303, 58 N. E. 1015; Delphin v. Worcester Consolidated Street Railway, 189 Mass. 270, 75 N. E. 635. The car was not passing over a curve, as in Spooner v. Old Colony Street Railway, 190 Mass. 132, 76 N. E. 660, nor prematurely started, as in Gordon v. West End Street Railway, 175 Mass. 181, 55 N. E. 990, both cited by the plaintiff. The judge had ruled, without objection on the part of the plaintiff, that there was no evidence of any negligence of the defendant with reference to the condition of the track or state of repair of the car, or the unfitness of its servants, or of gross negligence on the part of the motorman. The evidence did not disclose any jolt or lurch, nor a negligent starting or stop

(215 Mass. 322)

CHRISTIANSEN v. LANNINN (four cases). (Supreme Judicial Court of Massachusetts. Suffolk. June 18, 1913.)

ENT CONTRACTORS-WHO CONSTITUTE.

At this place there

was a slope and no retaining wall. The jury also might have found that while the defendant and McLane were upon the premises the latter pointed out to the defendant the opening of the pipe and said he had put some sticks and stones there. Thereupon the defendant told him to leave it as it was. It is not necessary to detail the evidence further. That which has been narrated, if believed by the jury, would justify a finding that the defendant retained an active directory control over the manner in which

2. MASTER AND SERVANT (§ 318*)-INDEPENDENT CONTRACTORS-DEFENSES.

That grading, which obstructed a natural water course and cast water upon plaintiffs' land, was done by an independent contractor, is no defense, where the owner retained an active control over the work.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 318.*]

Exceptions overruled.

(215 Mass. 344)

NORRIS v. LOOMIS et al. (Supreme Judicial Court of Massachusetts. Middlesex. June 18, 1913.)

1. CHARITIES (§ 11*)-OLD FOLKS' HOME FUND "CHARITABLE USE."

Where a testamentary gift was made "for an Old Folks' Home, both male and female, of Evangelical creed," it was valid as a charitable

Actions by Paul G. Christiansen, by George U. Christiansen, by Paul G. Christiansen and Hilda Christiansen, and by Hilda Christiansen against Joseph J. Lanninn, as trustee. There were verdicts for plaintiffs, and defendant excepted. Exceptions overruled.

John L. Hall and Stuart C. Rand, both of Boston, for plaintiffs. John P. Leahy, of Boston, for defendant.

RUGG, C. J. These are actions of tort to recover damages resulting from the obstruction of a natural water course whereby water came upon the plaintiff's premises. The water course crossed the plaintiff's land in a covered pipe which opened near to land owned by the defendant. The defendant graded his land. There was evidence tending to show that during the performance of this work earth covered the mouth of the drain, causing damages to the plaintiff.

[1, 2] The only question presented is whether upon any view of the evidence the defendant could be held liable. There was evidence tending to show that the defendant made a contract with one McLane to "do all

rough grading as directed," and that McLane, although he let the grading to a subcontractor, caused the work to be done as the defendant directed, and that the level of the surface of the earth at the rear of the lot, near the opening of the water course, was

religious belief is a charitable use.

Cent. Dig. § 35; Dec. Dig. § 11.*

[Ed. Note.-For other cases, see Charities,

For other definitions, see Words and Phrases, vol. 2, pp. 1074, 1075.j

2. CHARITIES (§ 48*)-CHARITABLE TRUSTCONSTRUCTION-ACCUMULATIONS.

Where a charitable trust was created by a will to establish an Old Folks' Home, and the funds were not sufficient for that purpose, and it was uncertain how long the funds must accumulate to an extent sufficient to found a home such as the testatrix had in mind, or the amount required, the executor would not be directed to hold the funds for accumulation.

Cent. Dig. §§ 78, 81, 104, 106; Dec. Dig. § [Ed. Note. For other cases, see Charities, 48.*1

3. CHARITIES (§ 37*)-ACCUMULATION-APPLICATION OF CY PRES DOCTRINE.

Where testatrix gave her residence for an Old Folks' Home, with certain funds to be used for its support, but the property was not suitable, nor the entire estate so given sufficient, for that purpose, yet, since the will disclosed a general charitable intent to help such dependfail, if not carried out in the way designated, ent class, and no intent that the trust should nor to limit it to any particular locality, the establishment of the home being incidental to the main object, it should be administered, according to the doctrine of cy pres, so as to carry out as nearly as could be the intention of the testatrix.

[Ed. Note. For other cases, see Charities, Cent. Dig. §§ 91-93; Dec. Dig. § 37.*]

Case Reserved from Supreme Judicial Court, Middlesex County.

Petition by Charles S. Norris, executor of Frances F. Tabor, deceased, for instructions as to disposition to be made of the estate,

The material clauses of the will were as

follows:

"I give my present residence 4 Lewis Ave. Arlington, Mass. for an Old Folks' Home, both male and female, of Evangelical creed, most of the furnishings of the said house to go with the house and land of said estate for the use of the old folks."

"I give the house and land 14 Prospect St. Malden, Mass. for to be sold for funds to carry on the Old Folks' Home. If it should be sold previous, then the funds received to be used for the carrying on of the Old

RUGG, C. J. [1] There is no doubt, under the general principles of charitable trusts, of the validity of the provisions of the will of the testatrix for the establishment of an "Old Folks' Home, both male and female, of Evangelical creed." The relief of the poor of a particular church and the amelioration of the condition of the aged of a specified religious belief is a charitable use. Even though the gift is limited to a certain class, the number to be benefited is indefinite and the purpose has always been regarded as charitable. Attorney General v. Old South Society in Boston, 13 Allen, 474; Sohier v. Burr, 127 Mass. 221; Sears v. Attorney General, 193 Mass. 551, 79 N. E. 772, 9 Ann. Cas. 1200; Masonic Education & Charity Trust v. Boston, 201 Mass. 320, 325, 87 N. E. 602 Little v. Newburyport, 210 Mass. .414, 96 N. E. 1032, Ann. Cas. 1912D, 425. The heirs at law rely upon Troutman v. De Boissiere Odd Fellows' Home, 66 Kan. 1, 71 Pac. 286. But we cannot follow that case, which is contrary to our own decisions and the great weight

the testatrix contemplated. The entire property devoted to this charity by the will amounts to about $23,000, which it is agreed is insufficient to establish and maintain such a home, "and it is altogether problematical and uncertain how much money will be required and how long it would take to accumulate the funds necessary for such a purpose." It is therefore impossible at present to carry out the terms of the will precisely according to the intent of the testatrix. The questions to be decided are: First, does the gift fail? Second, shall the property be held to accumulate until sufficient in amount to establish a home? or third, shall it be administered according to the doctrine of cy pres or distributed among the heirs at law of the testatrix? The will is informal, but on the whole we are inclined to think it manifests a general charitable intent as to the founding of the Old Folks' Home, and that it is not so limited to the particular building or place as to disclose an intention that it be devoted to no other purpose. It is apparent that the testatrix intended to dispose of her entire property. She made a large number of specific gifts of articles of personal property, but most of her estate is given to charitable objects. The method pursued by her of enumerating deposits in several different banks as gifts for the support of the home emphasizes the general purpose to benefit such an institution. The dominating design disclosed by the will is the establishment of the Old Folks' Home. The appropriation of the Arlington house to that use is rather the incidental than the primary aim. The beneficiaries are not limited to the particular neighborhood, nor are those of any locality given a preference. The paramount purpose was to establish a home for the benefit of the general class designated, with a special provision later in the will that a woman whom she had "mostly brought up" from childhood should have a home there whenever she wished. The precise method of accomplishing the charitable purpose was not of the essence of the gift, nor so important in her thought as the general relief of the dependent class uppermost in her mind. The testatrix's desire that the home should bear her name may be accomplished by perpetuating the name Tabor in connection with the framing of a scheme for the administration of the trust. Although the case is close upon this point, we incline to the view that it falls within the class of which Richardson v. Mullery, 200 Mass. 247, 86 N. E. 319, and Ely v. Attorney General, 202 Mass. 545, 89 N. E. 166, are illustrations. The case is distinguishable from Teele v. Bishop of Derry, 168 Mass. 341, 47 N. E. 422, 38 L. R. A. 629, 60 Am. St. Rep. 401, Bowden v. Brown, 200 Mass. 269, 86 N. E. 351, 128 Am. St. Rep.

We are of opinion, however, that a fair interpretation of the agreement makes it manifest that the parties intended this $500 to be liquidated damages and not a penalty in the event of a breach. In fact they have expressly so stated in the language of the second paragraph above quoted, designating the money as "fixed, liquidated and ascertained damages." And as was said by Holmes, C. J., in Guerin v. Stacy, 175 Mass. 595, 597, 56 N. E. 892, "we heartily agree with the Court of Appeals in England that so far as precedent permits the proper course is to enforce contracts according to their plain meaning and not to undertake to be wiser than the parties, and therefore that in general when parties say that a sum is payable as liquidated damages they will be taken to mean what they say and will be held to their word."

It is true that the use of the words "liquidated damages" is not decisive, and in some cases, notwithstanding such designation, it may be apparent from the terms of the entire contract and an examination of the subject matter that the money is to be treated as a penalty. But such is not the situation here. The contract contained numerous stipulations for a breach of which it would be difficult, if not practically impossible, accurately to determine the damages. Such, for instance, are those requiring the defendants to keep up the quality of the shades, to mark and number each one as provided in the agreement, to keep and render accurate accounts, and to settle for royalties monthly. Considering the subject-matter of the contract, it was a territorial right for a newly patented lamp, the success of which was problematical. Apparently the defendants were willing to risk not more than $500 in the venture in addition to the $1 to be paid for each lamp shade they could find a customer for; and the plaintiff was willing to accept the certainty of that amount, with the prospect of more in the event of the defendants' success in introducing the shades

to their customers.

It is urged by the plaintiff, however, that the first paragraph quoted from the agreement brings the case within the general rule of construction that where a sum is to be paid in case of a breach of any of several distinct stipulations of various importance, and some of them are for the payment of fixed amounts of money, it will be construed as a penalty. Fisk v. Gray, 11 Allen, 132; Wallis v. Smith, 21 Ch. D. 243. While the agreement is not free from doubt, on the whole we are of opinion that this rule has no application here. In the first paragraph the parties were providing for what would be done if the contract should be complied with, and the full number of one thousand shades manufactured. In that event the $500 was to be security, not in the sense of a penalty,

but simply as a fund from which payments should be made for the last five hundred shades manufactured. In the second paragraph the parties made provision for the event of a breach of the agreement, and therein stipulated for liquidated damages as above stated. It was not one of the stipulations that the defendants should make a payment of $1,000 or any other definite sum at the end of the year, or on any fixed date, but that they should manufacture 1,000 shades, for which they were to settle month ly. It is also somewhat indicative of the in tention of the parties to make this $500 liq uidated damages that it was a less sum than the defendants would otherwise be liable to pay on failure to make and pay for 1,000 shades. Penalties usually provide for the payment of a larger sum on the failure of a party to pay a less amount.

A majority of the court are of opinion that the plaintiff, by retaining as his property the $500, has received all to which he is entitled under the agreement, and that the demurrer must be sustained. Guerin v. Stacy, 175 Mass. 595, 597, 56 N. E. 892; Garst v. Harris, 177 Mass. 72, 58 N. E. 174; Morrison v. Richardson, 194 Mass. 370, 80 N. E. 468. In accordance with the terms of the report the bill is to be dismissed with costs. So ordered.

(215 Mass. 324)

WELD v. CLARKE. (Supreme Judicial Court of Massachusetts. Middlesex. June 18, 1913.)

1. COURTS (§ 1762*)-SPECIAL JURISDICTION --APPEAL FROM LAND COURT-DECISIONS REVIEWABLE-FINALITY.

An order of the superior court, allowing a motion to change the issues framed in the land court for a trial by jury in the superior court, was interlocutory in its nature, and could not appeal until final judgment. be brought to the Supreme Judicial Court by

.*

[Ed. Note.-For other cases, see Courts. Dec. Dig. § 1762;* Appeal and Error, Cent. Dig. §§ 3379%, 3382.]

2. COURTS (§ 1762*)-JURISDICTION-SUPERIOR COURT APPEAL FROM LAND COURT.

The superior court is the only forum where jury trials may be had by appeal in cases pending in the land court, and then only for the ascertainment of facts.

Dig. 1762* Appeal and Error, Cent. Dig. [Ed. Note.-For other cases, see Courts, Dec. §§ 33792, 3382.]

3. COURTS (§ 1762*)-LAND COURT-PROCE

DURE-DECISIONS APPEALABLE.

Where an appeal from an order of the superior court allowing a motion to change the issues framed in the land court for a trial by jury in the superior court was taken to the Supreme Judicial Court after the proceedings in the superior court had been concluded and a certificate had been sent by the clerk of the superior court to the land court, under Rev. Laws, c. 128, § 14, this was in effect a final judgment; and hence the Supreme Judicial der St. 1904, c. 448, § 8, providing that quesCourt acquired jurisdiction of the appeal, untions of law arising in the superior court on ap