that he was unaware of the nearness of the scale box to the north rail of track No. 2.

Prima facie, the location of scales where the tracks were only the standard distance apart, and where a space of less than 2 feet was left for the movements of a switchman between the side of a freight car and the scale box, encumbered, as he would be in the nighttime, with a lantern employed for the purpose of signaling, did not incontestably establish the performance by the defendant company of the duty imposed upon it to use due care to provide a reasonably safe place for the use of the switchmen in its employ. And so far from the proof making it certain that the necessity of the situation required the erection of the structure between tracks Nos. 1 and 2 as existing, there was proof that the railway company owned unoccupied ground, intended for other tracks, to the south of track No. 4, justifying the inference that the distance between tracks Nos. 1 and 2 might have been increased, and the employment of the scales thus rendered less hazardous to switchmen, or that the scales might have been removed to a safer location.

It was, therefore, properly a question for the determination of the jury whether

and that, by continuing in the work, with such knowledge, he assumed all risks ineident to and arising out of his employment. Upon this point you are instructed that, if you believe from the testimony that prior to the plaintiff's injuries he knew of the existence and location of the scale box, and of the danger incident to the discharge of his duties while passing the same on a moving train, if danger there was; or if, knowing of the location of the structure, the danger to the employees while in the usual discharge of their duties was apparent, that is, open to observation,-then you are instructed that the plaintiff, by continuing in the employment of the defendant without complaint, assumed such risks, and he would not, therefore, be entitled to recover. In this connection you are further instructed that the mere fact that the plaintiff knew of the existence and location of the scale box would not, as a matter of law, charge him with knowledge of the danger, if such danger there was, due to its proximity to the north rail of track No. 2, and whether he knew of the danger is a question of fact for you to determine from a consideration of all the facts and circumstances in evidence."

The grounds of the objection to the charge being thus stated:

or not the scales were maintained in a reasonably safe place, and if not, whether the plaintiff had notice thereof. The court of "Because the proof showed that plaintiff appeals was of opinion, and rightly we knew of the location of the track scale box, think, that the dangerous contiguity of and of track No. 2, on which he was riding the scale box to track No. 2, and the extra at the time he was hurt, in reference to a hazard to switchmen resulting therefrom, scale box, and that the same and the locawas not so open and obvious on other than tion thereof was open and obvious to plaina close inspection, as to justify taking from tiff's view, and, being view, and, being an experienced the jury the determination of the question brakeman, he was charged with notice that whether there had been an assumption of riding on the cars as he did was dangerthe risk. The plaintiff was entitled to as-ous, and he assumed the risks thereof, and that the defendant company had the court should have so charged the used due care to provide a reasonably safe jury." place for the doing by him of the work for which he had been employed, and as the fact that the defendant company might · not have performed such duty in respect to the scale box in question was not so patent as to be readily observable, the court could not declare, in view of the testimony of the plaintiff as to his actual want of knowledge of the danger, that he had assumed the hazard incident to the actual situation. Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct. Rep. 24.

The remaining assignment of error questions the correctness of the following portion of the charge to the jury:

This assignment but reiterates contentions made in connection with the assignment based on the alleged error in overruling the motion for judgment. As we have already decided that knowledge of we have already decided that knowledge of the increased hazard resulting from the dangerous proximity of the scale box to the north rail of track No. 2 could not be imputed to the plaintiff simply because he was aware of the existence and general location of the scale box, it was for the jury to determine, from a consideration of all the facts and circumstances in evidence, whether plaintiff had actual knowledge of the danger.

We find no error in the judgment of the Circuit Court of Appeals, and it is af

"The defendant claims that the plaintiff knew of the existence and location of the scale box with which he came in contact, 'firmed.

(196 U. S. 38)

ANDREW C. KEELY, Trustee, et al., | fendants were in possession of the lot as

Plffs. in Err.,

v.

JOSEPH H. MOORE et al.

Wills attestation - testamentary capacity-evidence-instructions.

1. The wholly unofficial certificate of a vice

consul, appearing at the foot of a will executed abroad, if otherwise sufficient as an attestation, may be treated as such by disregarding the superfluous words, "Vice Consul, United States of America," appended to his signature.

2. An application for the admission of a testator to an insane asylum, and the certificate of two physicians, upon which the commitment was made, are inadmissible in evidence on the issue of his testamentary capacity, not only because they were unsworn testimony, but because they were given in a different proceeding and upon a different

issue.

8. The issue of the testamentary capacity of a person who had once been insane was properly submitted to the jury by instructions

that, if they found his insanity to be per

life tenants under his alleged will.

The validity of the will and the due execution thereof were contested by the plaintiffs for reasons hereinafter indicated in the opinion. The trial resulted in a verdict for the defendants, upon which judgment was entered, and affirmed by the court of appeals. 22 App. D. C. 9..

Messrs. C. C. Cole, Hugh T. Taggart, and Leo Simmons for plaintiff in error. Messrs. D. W. Baker and Wilton J. Lambert for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

The validity of the will was attacked upon three grounds: 1st, that it has not the requisite number of witnesses to pass real estate in this District; 2d, that the testator was of unsound mind; 3d, that undue influence had been exercised by one of the designated executors, and others.

Thomson was a resident of Washington, but, at the time of and for some years prior to his death was the American consul at Southampton, England. One John H. Cooksey, a resident merchant at South

manent in its nature and character, the presumption was that it would continue, and that the burden was upon the defendant to satisfy the jury, by a preponderance of testimony, that he was, at the time of execut-ampton, was his vice consul. The will was ing the will, of sound mind.

[No. 55.]

Argued November 8, 9, 1904. Decided December 19, 1904.

N ERROR to the Court of Appeals

of

prepared by Walter R. Lomer, a resident solicitor, and was executed at his office February 24, 1866. By this will he devised the property in controversy to the appellees Mary Cecelia Thomson and Georgiana Hawkes Thomson, his cousins, of Kent county, England, jointly for their joint lives, and to the survivor of them,

I the District of Columbia Mary Cunningham

judgment which affirmed a judgment of the Supreme Court of that District, entered upon a verdict for defendants in an action of ejectment. Affirmed.

See same case below, 22 App. D. C. 9.

Statement by Mr. Justice Brown: This was an action of ejectment brought in the supreme court of the District by grantees of the heirs at law of William Thomson against Joseph H. Moore and the firm of Thomas J. Fisher & Company, agents of Mary Cecelia and Georgiana Hawkes Thomson, of the county of Kent, England, devisees under the will of William Thomson, to recover possession of an undivided ninety-one one hundredths of certain real estate in the city of Washington. Upon the trial it was admitted that William Thomson died in Southampton, England, in 1887, seised of the lot in question; that he was born in, and was a citizen of, the United States, leaving no issue descendants. Plaintiffs had acquired

or

erts, of London, for life, and remainder in fee to her only son. The will, which was executed in duplicate, was written upon two sheets of paper, to each of which the testator affixed his name. It was witnessed in the usual form by Lomer and by one Linthorne, a clerk in his office, who attached their signatures in the presence of and at the request of the testator, and in the presence of each other. On the day after the execution of the will Thomson again went to the office of his solicitor, Lomer, who wrote a certificate of acknowledgment in the margin of the second and last page of the will, which was signed by Cooksey, the vice consul.

The original will, being of record in the Probate and Admiralty Division of the High Court of Justice in London, could not be produced, but was proved by a certificate and examined copy. The attestation clause and the certificate were as follows:

Signed and acknowledged by the said

the title of the heirs at law, and the de- William Thomson, the testator, as and for

Walter R. Lomer,

Solicitor, Southampton, Eng.
R. Roupe Linthorne,

His Articled Clerk.

his last will and testament in the presence | what it contains. It certifies, in substance, of us, both being present at the same time, that the testator attended before Cooksey who at his request in his presence, and in upon the day following the date of the the presence of each other have hereunto will, acknowledged it to be his last will subscribed our names as witnesses. and testament, and that the signature is genuine. Whether he intended to certify that Thomson acknowledged his signature to be genuine, or that ne, Cooksey, certified that it was genuine, is somewhat uncertain; but if the words "Vice Consul of the United States of America," which are merely superfluous, were omitted, there would be no failure to comply with the statute, unless in the omission to certify that Cooksey, the certifying officer, "attested and subscribed in the presence of the said devisor." But as it appears that Thomson, not knowing when he would be

I hereby certify that William Thomson, consul at Southampton for the United States of America, attended before me this 25th day of February, 1886, and acknowledged the foregoing paper-writing contained in two sheets of paper as his last will and testament and that the signature "Wm. Thomson" at the foot thereof is in the proper handwriting of the said Wil-in London, took the certificate to the vice

liam Thomson.

[Seal U. S. Consul.] John H. Cooksey,

Vice Consul United States of America.

The execution of the will was proved by the two subscribing witnesses, Lomer and Linthorne, and the certificate by proof of the death of Cooksey, and the genuineness of his signature. This was proper. Clarke v. Courtney, 5 Pet. 319, 8 L. ed. 140; Stebbins v. Duncan, 108 U. S. 32, 27 L. ed. 641, 2 Sup. Ct. Rep. 313. At this time there At this time there was in force in this District the 5th section of the act of 29 Charles II., chapter 3, which had been adopted in Maryland

in 1798, and carried into this District as

consul, and that the latter signed it, the jury might properly draw the conclusion that it was signed in the testator's presence. This would be the usual course of

business, and the presumption is that Cooksey conformed to it and to his duty as a certifying officer.

The certificate was probably prepared under the belief that wills, like deeds, made in a foreign country, must be executed and acknowledged before some foreign official, or "before any (some) secretary of legation or consular officer of the United States" (Rev. Stat. § 1750; U. S. Comp. Stat. 1901, p. 1196; D. C. Comp. Stat. chap. 58, § 6); but as such certificate was § 4, chapter 70, of the Compiled Statutes unofficial, and contributes nothing, as such, to the validity of the will, it can only be of 1894. It provided as as follows: "All devises and bequests of any lands or tene- looked upon as the affirmation of an ordiments, devisable by law, shall be in writ-nary witness to the facts therein stated. ing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they shall be utterly void and of none effect."

No particular form of attestation was necessary, as appears to be the case in England and in several of the United States; and if the certificate of Cooksey had been written at the foot of the will and signed by himself and by the two witnesses, Lomer and Linthorne, it would have been a sufficient attestation. How, then, can it The object of the certificate in question be regarded as insufficient when an attestathat Thomson took the will away with him tion in one form is signed by two witnesses is not entirely clear, though from the fact and an attestation in another form by a after its execution, and stated that he third? Bearing in mind that the certifiwould attend before the consul general at cate, if given any force at all, must be conLondon and obtain the requisite certifi- sidered an attestation, we do not think cate, it would seem that he thought the that the fact that it may have been writcertificate was necessary to the proof of ten and signed under a mistaken impresthe will in another country. He did not sion as to its necessity and purpose vitigo to London, however, but called again at ates it as an attestation. What use was Mr. Lomer's office, with the request that intended to be made of it is immaterial, he prepare the requisite certificate, which if it were useless for any purpose as an he afterwards procured Mr. Cooksey to official certificate. The facts certified are sign. The certificate was not offered as appropriate to the attestation of the inproof that the will was a copy of the orig-strument, and, if true, we see no reason for inal, since it was annexed to the original, holding it to be invalid as an attestation and we can consider it only as proof as to because it was signed under the impression

that it was necessary for some possible | tors" and the other opposite the word purpose as a certificate. "Witness." There was no attestation clause

the witnesses to be his executor, and asked him to sign his name in that character. Lord Penzance held that such person did not sign the will exclusively as executor, but that he also intended by his signature to affirm that the deceased executed the will in his presence, and that consequently the will was valid. Somewhat to the same effect is Pollock v. Glassell, 2 Gratt. 439. Conceding the general rule to be that witnesses must intend to attest the will as

The case of Adams v. Norris, 23 How. to the will. The deceased intended one of 353, 16 L. ed. 539, is much in point. This was an action of ejectment for a parcel of land in California. Plaintiffs claimed through the heirs at law of one Grimes, defendants through the devisees in his will. The law required three witnesses to the validity of the will. Two of the witnesses signed in the usual manner, but above their signatures and beneath that of the testator was written: "Before me, in the absence of the two alcaldes, Roberto T. Ridley, Sindico." The sindico was count-witnesses, the inference is strong that ed among the witnesses, the court saying: "We comprise among the witnesses to the will, Ridley, the sindico. It does not appear that a sindico was charged with any function in the preparation or execution of testaments by the law or custom of California. Nor is it clear that the sindico in the present instance expected to give any sanction to the instrument by his official character. He attests the execution of the will, and we cannot perceive why the description of himself, which he affixes to his signature, should detract from the efficacy of that attestation." As it did not appear that the sindico or the two alcaldes were charged with any special duties, it was practically held that the certificate of acknowledgment, and the official character of the sindico, might be disregarded, and the signature treated as an attestation.

In the case of Clarke v. Turton, 11 Ves. Jr. 240, the will was executed abroad. It appears that three witnesses were required, apparently under the same act of Charles II. as in this case. The third signature was, as in this case, that of the vice consul, whose attestation was considered necessary to the validity of the act. The case is insufficiently reported, but the court held that the attestation was a memorandum of the vice consul, to operate as a certificate, "a separate act in his public character, and sealed with his official seal; and therefore it could not be said he subscribed as a witness." The question upon that point was sent to law, but it does not appear what disposition was made of it. It appears that the certificate was an official act, and treated as necessary, but the report fails to show what it contained, and, in the absence of such showing, the case is of little value.

The applicability, and, to some extent, the authority, of this case, is somewhat weakened by that of Griffiths v. Griffiths, L. R. 2 Prob. & Div. 300. The will was signed by the testator in the presence of two witnesses, who signed their names in his presence,-one opposite the word "Execu

Cooksey did so in this case, as he certifies to the genuineness of the signature of Thomson and to the acknowledgment of the will in his presence; and these are what would have been required by the law of this District had the instrument been a deed. It is argued that Cooksey did not intend to attest the will, but merely to sign the certificate; but the certificate of what? Only the fact that the will was acknowledged in his presence and that the signature was genuine. This is precisely the object of an attestation, and as an attestation we think it must be regarded. He may have supposed his official certificate of acknowledgment necessary to the execution of a will in a foreign country, but as he did certify personally to such acknowledgment the addition of his official title adds nothing to, and takes nothing from, the weight of his attestation. We must conclude that he intended to certify exactly what he did certify, and we are giving it exactly the effect he intended to give it.

If the certificate were an official act and material as a separate acknowledgment of the execution of the will, as in the acknowledgment of a deed, the case would be different, since it has never been supposed that a notary, who takes an acknowledg ment of a deed, could be counted as a witness to the deed deed without a separate signature. But here the certificate was a wholly unofficial act, and we see no objection to disregarding the words "Vice Consul of the United States," and treating it as an acknowledgment of the execution before a competent witness. The acknowledgment of a will is really a feature of the attestation. The statute did not require that the devisor should sign the will in the presence of the witness, but that the witness should sign in the presence of the testator.

2. The evidence of Thomson's insanity was quite unsatisfactory. It appears that during the autumn or early winter of 1885 he was seized with an acute mania, and on

There were also a large number of exceptions taken to the admission or exclusion of testimony and to the charge of the court, but to consider them in detail would subserve no useful purpose. We have examined them carefully, and have come to the conclusion that there was no ruling of the court of which the plaintiffs were entitled to complain. The evidence of insanity was very slight, and there was no legal testimony to show that the will was executed under the pressure of an undue influence.

December 15 was committed to a private | ing the will, of sound mind. There was insane asylum as a lunatic, upon the cer- no error in this instruction. tificate of two physicians, and at the request of a cousin, named James E. Cunningham, a merchant of London, who appears to have taken temporary management of his affairs. He remained in the asylum about six weeks, and on February 1, 1886, somewhat more than three weeks before he executed his will, was discharged as probably cured,-in reality granted a leave of absence on probation. The belief in his cure being justified by his subsequent conduct, a formal order of discharge was entered on the record of the asylum on June 26, 1886. Lomer and Linthorne, the witnesses who were present at the execution of the will, and Septimus Cooksey, the son of the vice consul, all testified to the mental capacity of the testator at that time.

The judgment of the Court of Appeals is, therefore, affirmed.

(196 U. S. 68)

WILLIAM B. WETMORE, Plff. in Err.,

Bankruptcy

A

v.

nette B. Wetmore).

effect of discharge upon alimony and allowance to minor children.

In this connection exception was taken to the exclusion of the application of ANNETTE B. MARKOE (formerly AnJames E. Cunningham for the admission of Thomson to the insane asylum, and of the certificate of the two physicians as to his insanity. These were properly excluded, not only because they were unsworn testimony, but because they were given in a different proceeding and upon a different issue. Thomson may have been insane to the extent of being dangerous if set at liberty, and yet may have had sufficient mental capacity to make a will, to enter into contracts, transact business, and be a witness. In the case of Leggate v. Clark, 111 Mass. 308, the admission of similar testimony was treated as error. In addition to this, however, these certificates were both dated December 14, 1885, more than two months before the will was made, and are by no means inconsistent with the other testimony that he was released from the asylum as cured February 1, 1886, and Argued November 9, 10, 1904. Decided

that three weeks after that, when he executed the will, he appeared to be of sound and disposing mind and memory.

discharge in bankruptcy does not bar the collection of arrears in alimony and allowance for the support of minor children, due under a decree in an action for divorce, since such liability, although fixed by a decree which is beyond the power of the court to alter or amend, because it did not reserve any right of subsequent modification or amendment, is not a "debt" within the meaning of the bankruptcy act of July 1, 1898 (30 Stat. at L. 562, chap. 541, U. S. Comp. Stat. 1901, p. 3447), § 63, providing for the proving of debts which are a fixed liability as evidenced by a judgment.

[No. 56.]

December 19, 1904.

the

and for the County of New York, denying an application for an order restraining the collection of arrears of alimony and allowance for the support of minor children, such application being based on the theory that the liability therefor was discharged by proceedings in bankruptcy. Affirmed.

N ERROR to the Supreme Court of the In addition to the proof of his commitment of the Appellate Division, First DeState of New York to review a judgment to the asylum, and of his undoubted partment of that court, which affirmed an insanity prior and for some time subse-order entered at a Special Term held in quent thereto, there was slight evidence of insane acts during the month of February, though there was no opinion expressed by anyone that he was incapable of making a valid deed or contract. The whole testimony regarding his insanity was duly submitted to the jury, who were instructed that if they found his insanity to be permanent in its nature and character, the presumptions were that it would continue, On June 12, 1890, an action for divorce and the burden was upon the defendant to and alimony was begun by Annette B. W. satisfy the jury by a preponderance of tes- Wetmore, wife of the plaintiff in error, in timony that he was, at the time of execut-the supreme court of the state of New

Statement by Mr. Justice Day: