about 125 feet of this balustrade was de- which to nail such single sheathing as might stroyed or so badly burned as to require re- be used in order to bring the surface of the placement, and that the cost of replacement single sheathing out to the general line of the would be $375, or $3 per foot. Mr. Beck tes-surface of the outer walls remaining, and not tified to all this, and also that the cost of replacing the portion of the jet destroyed would be $2 per foot. Upon conference with Houlihan and Evans Mr. Beck found that they had allowed a loss of $2 per foot on the jet and nothing in addition for the balustrade, Mr. Houlihan in effect saying, when questioned by Mr. Beck why no allowance was made for the balustrade, that he had allowed for the balustrade in allowing for the jet. It is obvious that the balustrade was no part of the jet; it was an architectural feature of ornament and possible utility, frequently placed upon large houses with flat roofs; and it is evident from the testimony that the claim that the cost of its restoration was included in the figures allowed for the restoration of the jet was a mere evasion, and that its omission from the items of loss was an arbitrary omission.

in need of reconstruction, so that the clapboards to be nailed upon the sheathing would come into alignment with the clapboards remaining upon the walls not destroyed; but it nowhere appears that any allowance was made for the expense of such additional "furring." Upon this point we think that the refusal to allow anything for the loss of double sheathing was an arbitrary refusal; this method of construction was proper, even if unusual; it added value to the house and was of substantial value to the owner; and the reason given "that they were not building houses that way now" furnished no basis for the refusal. Such a reason might be urged as to any method of construction used by owners of houses of large size, seeking stability and protection from the bitter winds of winter; many people during the past winter, with its bitter cold and the difficulty of obtaining adequate fuel, would have been thankful if their houses had been constructed with double sheathing so as to enable them to conserve the little heat they had and keep out the cold. As well might the appraisers say, in case of injury to hardwood floors, or to polished mahogany or black walnut wainscoting, hard-finished stucco walls and ceilings, in somewhat old-fashioned residences, that they would not allow for their loss and the cost of replacement because nowadays it is the custom to build houses with cheaper floors, or with white wood wainscoting painted, or with rough plaster walls and ceilings covered with cheap paper.

It ap

It also appears that the main body of the house was constructed with double sheathing i. e., that it had a sheathing of ordinary boards nailed onto the upright joists or framework of the house; that over this was paper, and over the paper a boarding consisting of tongued and grooved white pine which was painted, and again over this were clapboards for the outside finish. A very substantial portion of the outside walls of the house so constructed was destroyed or so damaged by the fire as to require reconstruction and replacement with new material, and it appeared from the testimony of Mr. Beck, and of the other contractors and builders who corroborated him, that the cost of reBesides the above-mentioned important placing this double sheathing in as good con- items of exterior construction, the evidence dition as before the fire would be from $400 shows that the plumbing work and heating to $600, that the tongued and grooved mate- apparatus within the house, which are exrial was of white pine, which was then very pressly enumerated among the fixtures covscarce in the market and very expensive, and ered by the terms of the submission as above that they did not allow for that, but for a quoted, were very badly damaged. less expensive pine, which could be easily pears that the fire broke out early in the procured and would answer the purpose. It morning, and that from about 6:30 to 11 a. further appears that Houlihan (with whom m. two streams of salt water from an adjaEvans appears to have agreed in all respects), cent cove were being pumped into the house when this item of double sheathing was call- to put out the fire, and that the house was ed to his attention and he was asked why he flooded with salt water from attic to cellar, made no allowance for it, said in substance, that a water tank on the third floor, made of "that they were not building houses that plank and lined with copper and worth about way now," and gave no other reason for re- $100, was totally destroyed, and that other fusing to allow the item. It further appears serious damage was done to the plumbing from the testimony of Mr. Beck and the other system, and to the heating system, which was corroborating witnesses that this method of composed of a steam generator and of direct construction, although not now or perhaps pipes to steam radiators, and also of indirect ever commonly used in building dwelling heating through a brick chamber and regishouses, was of substantial value to the own- ters. The witness Beck estimated the damer, in that it made the outer walls tighter age done to the heating and plumbing appaand stiffer, kept out the cold, and made the ratus as upwards of $500. In this he was corhouse more stable. It also appeared that if, roborated by the witness Hainsworth, an exin the restoration of the house, double sheath- pert of over 30 years' experience in plumbing ing was not used, it would be necessary to and heating apparatus, living in Wickford, incur expense for additional "furring" upon | R. I., who had from time to time for 15 years

before the fire done work on that apparatus, 5, 6, 7, 9; that issue 3, in our view of the in that house, and was thoroughly familiar case, is immaterial; that as to issue 4 there therewith, and with its condition just prior is no evidence that they were interested in to the fire. He testified that the apparatus the result, but there is evidence that they did was in good condition and good repair at that not act impartially; that as to issue 8 there time. He examined it in detail just after the is no evidence of sufficient clearness to warfire, and testified that it would cost, in his rant a finding; that issue 10 should be anestimation, based upon what damage he ac- swered in the negative; that as to issue 11 tually saw, $570 to put the plumbing and there is no evidence sufficient to warrant a heating apparatus in as good condition as it finding. was before the fire, and that it would cost in We think the case in its general aspects is addition $125 to $150 to take down the fur- within the scope of the decision in Low Esnace in order to be sure that it was put in tate Co. v. Lederer Realty Co., 35 R. I. 352, proper condition before it would be safe to 361, 86 Atl. 881, Ann. Cas. 1916A, 341, allight a fire therein. When Mr. Beck consult- though some of the more important facts of ed with Messrs. Houlihan and Evans just be that case which warranted the court in setfore they signed the award, he found that ting aside the award were different in charthey had allowed nothing for plumbing dam-acter. The award in that case, however, was age, and only $35 for heating damage, and grossly inadequate by reason of the fact that after an extended argument with them, call- the appraisers misconceived their duty. In ing their attention to the matters above set the case at bar the complainants have cited forth, they finally agreed to allow $100 for certain cases in support of their contentions, the loss of the tank, and $75 for some other which in their general principles are in point. items apparently relating to the heating, but Buys v. Eberhardt, 3 Mich. 524; Van Cortnot clearly shown in the testimony. In the landt v. Underhill, 17 Johns. (N. Y.) 405; opinion of this court, here again was evi- Chicago, etc., Co. v. Stewart (C. C.) 19 Fed. 5, dence of an arbitrary refusal to allow any- 8; Adams v. N. Y. Bowery Fire Ins. Co., 85 thing for substantial items of damage spe- Iowa, 6, 51 N. W. 1149; Schmidt Bros. v. cifically brought to the attention of Messrs. Boston Ins. Co., 82 App. Div. 234, 81 N. Y. Houlihan and Evans. Supp. 767; Phenix Ins. Co. v. Moore (Tex. Civ. App.) 46 S. W. 1131; American Fire Ins. Co. v. Bell, 33 Tex. Civ. App. 11, 75 S. W. 319; Canfield v. Watertown Fire Ins. Co., 55 Wis. 419, 13 N. W. 252; Hong Sling v. Nat. Assur. Co., 7 Utah, 441, 27 Pac. 171; Providence Washington Ins. Co. v. Board of Education, 49 W. Va. 360, 38 S. E. 679; Ross v. German Alliance Ins. Co., 86 Kan. 145, 119 Pac. 366, Ann. Cas. 1913B, 1045.

We find few cases cited upon defendants' brief and none which affect this case.

We are of the opinion that the trial judge failed to give due consideration to the weight of the testimony in this case, which was uncontradicted, and that he was in error upon both points, upon which he granted the motion to dismiss, and was in error in entering the decree appealed from dismissing the

It is needless to prolong further the examination of the evidence in regard to the action of these appraisers. The witness Beck is fully corroborated by experts of apparent fairness and long experience as to his estimates in the matters specifically above referred to, as well as in his general estimate of the entire amount of loss and damage to the house. These corroborating witnesses made their estimates independently of Mr. Beck, and without conference with him; be did not know their figures, nor they his, till after the respective estimates were completed. The evidence convinces us that many specific items of loss and damage above set forth which were of substantial pecuniary value to the assured and which were proper subjects of appraisal and award under the submission were specifically called to the attention of bill. said appraisers, and were so obvious that We do not intend by this opinion to be said appraisers, if they properly appreciated understood to have made any conclusive findtheir duty, should themselves have taken no-ings of fact as to any specific amounts of loss tice of them, and that said appraisers will or damage above referred to. Such amounts fully refused to allow anything in several important instances; and these instances, coupled with the well-supported evidence as to gross inadequacy of the award in its total amount, lead us to the conclusion that the award as a whole was unjust, inequitable, and grossly inadequate.

will presumably be the subject of another inquiry before another tribunal. We have simply determined upon the uncontradicted testimony before us that the award is invalid for the reasons above set forth.

The appeal is allowed, the decree appealed from is reversed, and the cause is remand

It is our opinion that there is ample evi-ed to the superior court sitting in Washingdence in the record before us to warrant an affirmative answer to issues numbered 1, 2,

ton county, with direction to enter its decree setting aside the award.

now operate prejudicially and inequitably to KINGSTON et al. v. HOME LIFE INS. CO. them, they may have the question determined by the court under a bill that fairly and clearly presents the question.

to purchase the stock of the insurance company (Supreme Court of New Jersey. June 19, 1918.) operates prejudicially to the minority stockholders of the insurance company, they may bring a bill to have such contract terminated.

mation of a contract on Sunday is necessary | into court the defendant moved at chambers to bring it within the prohibition of the Sunday statutes. Burr v. Nivison, 75 N. J. Eq. 241, 72 Atl. 72, 138 Am. St. Rep. 554, 20 Ann. Cas. 35.

to strike out the complaint and dismiss the action upon the ground that the suit was brought by the general administratrix of the decedent contrary to the provisions of chap[2] Tested by this rule, we think the con- ter 180 of the laws passed by our Legislature, tract of employment in the present case was and approved by the Governor, in 1917. not invalid. True, there was an interview | Pamph. Laws, p. 531. A rule to show cause on a Sunday between the parties at which why this application should not prevail was the probable cost of various kinds of houses allowed, and the matter is before us for dewas discussed, and the plaintiff's customary termination. charge for drawing plans and supervision | The statute appealed to by the defendant was asked and stated. But the defendants is a supplement of our "Death Act" (2 Comp. had not yet acquired a lot upon which to build, nor decided upon the kind and cost of the house desired, and the Sunday interview terminated to give the plaintiff a chance to "think it over" and the defendants an opportunity to purchase a lot and decide upon the character of house required. Later the defendants acquired a lot, and determined to build, not only a house of a designated cost, but also a garage, and the interview at which the employment of the plaintiff to plan these was agreed upon was on a week day. Obviously, in this state of the proof, it cannot be said that the judgment in question rests upon a Sunday contract.

The judgment below will be affirmed, with costs.

SWANK v. PENNSYLVANIA R. CO. .
(Supreme Court of New Jersey. June 11, 1918.)
COMMERCE 8(6)—FEDERAL EMPLOYERS' LI-
ABILITY ACT-ACTION FOR DEATH-PLAIN-
TIFF "PERSONAL REPRESENTATIVE."

Act March 27, 1917 (P. L. p. 531), supple mental of the Death Act, requiring action instituted under and by virtue thereof to be in the name of an administrator ad prosequendum, does not apply to action under federal Employers' Liability Act (U. S. Comp. St. 1916, 8 8657-8665), declaring liability of carrier for death of employé to his personal representative, meaning his executor or general administrator. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Personal Representative.]

Action by Elizabeth Swank, administratrix, against the Pennsylvania Railroad Company. Heard on defendant's rule to show cause. Rule discharged.

Argued February term, 1918, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Gaskill & Gaskill, of Camden, for the rule. James Mercer Davis, of Camden, opposed.

GUMMERE, C. J. This suit is brought by the plaintiff as the general administratrix of Herbert L. Swank, deceased. Mr. Swank, at the time of his death, was in the employ of the defendant company, and, according to the averment of the complaint, lost his life by accident while being employed by the defendant company in interstate commerce. The action is brought under the federal Employers' Liability Act. Upon being brought

St. 1910, p. 1907, §§ 7-9), and provides that
every action instituted under and by virtue
of its provisions "shall be brought in the
name of an administrator ad prosequendum."
It is, of course, apparent that if this action
was brought for the enforcement of a reme-
dy given by our "Death Act" the procedure
must be that provided by the statute and its
supplements. The trouble with the defend-
ant's case, however, is that the remedy
sought to be enforced is not provided by our
state statute, but is conferred by federal leg-
islation; and in the enforcement of a remedy
thus conferred the method of procedure pro-
vided by Congress must control. The lan-
guage of the federal act is that the liability
of the carrier in case of the death of the
employé is "to his or her personal represent-
ative for the benefit of the surviving wid-
ow," etc.; and that language has been con-
strued by the United States Supreme Court
to mean the executor or general administra-
tor. American Railroad Co. v. Birch, 224 U.

S. 547, 32 Sup. Ct. 603, 56 L. Ed. 879; Mis-
souri, Kansas & Texas Ry. Co. v. Wulf, 226
U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, Ann.
Cas. 1914B, 134; St. Louis & C. Ry. Co. v.
Seale, 229 U. S. 156, 33 Sup. Ct. 651, 57 L.
Ed. 1129, Ann. Cas. 1914C, 156.

The plaintiff, as general administratrix, being the only person who is entitled to maintain the present action, the rule to show' cause will be discharged.

1. The defendant was lawfully upon the highway at the time of the occurrence of the (Court of Chancery of New Jersey. June 12, accident, and he was not required to carry a light himself or on the wheelbarrow which he was pushing. On the question of negli- REMAINDERS. gence a jury question was presented at the Under devise of homestead to wife for life, close of the plaintiff's case, and therefore and at her death to children or their legal repthe trial judge's refusal to nonsuit the plain-resentatives, remainder vested in children at

1. WILLS 634(13)-CONSTRUCTION-VESTED