her decease, but was the devise of a future interest dependent upon the dubious and uncertain event of their surviving until the time fixed for the vesting of the estate. Their contingent interest was supported by the life estate in Bridget Beaton, and that, under all the authorities of text-book writers and decisions of courts, it was a contingent remainder seems too plain to require argument or discussion or the citation of authorities. The devises over to the child or children of the testator or their descendants, and to "The Mother of Shepards of St. Louis, Missouri,' were also contingent remainders. Until the vesting of a contingent remainder or the determination of the impossibility of its vesting the reversion in fee is in the heirs of the testator. (Bond v. Moore, 236 Ill. 576; Harrison v. Weatherby, 180 id. 418; Peterson v. Jackson, 196 id. 40.) A contingent remainder must vest during the continuance of the particular estate supporting it or eo instanti upon its termination. Here the particular estate that supported the contingent remainders was terminated by the conveyance by Bridget Beaton of her life estate to plaintiff in error before the estate vested in the contingent remainder-men, for the reason that the reversion in fee having been also conveyed to plaintiff in error by the heirs of the testator, the two estates merged in him. Under that situation the authorities hold that in the absence of statutory prohibition the contingent remainder is destroyed and the person in whom the particular estate and the reversion meet becomes the absolute owner. This was so held in the late case of Bond v. Moore, supra, where the authorities will be found cited and commented upon. We do not think this decree could be sustained without overruling that case and the many authorities cited in the opinion that support it. The rule that courts will not, in case of a conveyance by a mortgagor to a mortgagee, decree a merger where it is not for the interest of the mortgagee to do so, has never been applied in cases of this character in this State nor elsewhere, so far as we are informed. The decree of the circuit court will be reversed and the cause remanded, with directions to enter a decree as prayed in the bill. Reversed and remanded, with directions. JOHN PFEIFER, Defendant in Error, vs. THE EASTERN METAL WORKS, Plaintiff in Error. Opinion filed April 19, 1913. 1. MASTER AND SERVANT—when master is liable for injury from defective tool. A master who furnishes a chisel manufactured by himself for his servant to use is liable to the servant for an injury resulting from a defect, if the servant had no notice that there was any defect in the chisel, which was new but which broke at the first attempt by the servant to use it. 2. EVIDENCE-when expert testimony as to cause of breaking of chisel is proper. A duly qualified expert may testify to the effect where metal is properly welded, and may give his opinion, from the appearance of a broken chisel, that the break was caused by the forging work thereon being improperly done. WRIT OF ERROR to the Branch "B" Appellate Court for the First District;-heard in that court on writ of error to the Superior Court of Cook county; the Hon. MARCUS KAVANAGH, Judge, presiding. MATTHEW J. Huss, for plaintiff in error. HENRY R. RATHBONE, for defendant in error. Mr. JUSTICE CARTER delivered the opinion of the court: The defendant in error, John Pfeifer, sued the Eastern Metal Works, the plaintiff in error, in the superior court of Cook county, and on a trial before a jury obtained a verdict of $1500 for damages alleged to have been caused by the negligence of plaintiff in error. Judgment was entered on this verdict, which was affirmed by the Appellate Court for the First District. The case is brought here on petition for certiorari. The evidence shows that defendant in error had been employed by plaintiff in error for upwards of two years prior to May 29, 1908, as a helper in blacksmith and machinist work in its plant and afterwards in the same sort of work on the outside. Said company was engaged in constructing and erecting iron appliances. May 28, 1908, a foreman of plaintiff in error directed Pfeifer to go to a building under construction at Sixty-third street and Center avenue, in Chicago, Illinois, to finish some fire-escapes. One Petrowsky went with him as a helper. At the time the foreman of plaintiff in error gave the order above mentioned he gave to Pfeifer five or six chisels, which the latter put in a satchel, along with some other tools of his own. He worked on the fire-escape a day and a half before he was injured. On May 29, while at work on the second platform of the fire-escape, in compliance with the order of said foreman, a chisel which the latter had given him broke and a particle of steel from the tool flew into Pfeifer's eye and destroyed its sight. He testified that just before he was injured he took up a new chisel, which had never been used before the accident, and started to use it; that the very first stroke caused it to break about an inch or an inch. and a half from the point, a piece of the broken steel flying into his eye. Petrowsky testified substantially to the same effect. It is first urged that there is no evidence in the record showing that the accident was caused by a piece of steel from the broken chisel; that from the evidence it is just as consistent to presume that the piece of metal which injured the eye came from the fire-escape upon which Pfeifer was using the chisel. The jury found, in their answers to special interrogatories submitted to them by plaintiff in er ror, that the particle of steel came from the chisel. We think they were warranted in so finding from the evidence. The burden rested upon plaintiff in error to use reasonable care to furnish defendant in error with tools that were safe to do the work he was ordered to do. The latter was under no primary obligation to test the safety and fitness of these tools, in the absence of notice that there was something wrong in that respect. Illinois Central Railroad Co. v. Sanders, 166 Ill. 270; Chicago and Eastern Illinois Railroad Co. v. Hines, 132 id. 161. Counsel for plaintiff in error further argues that the court erred in admitting the testimony of an expert witness. This testimony was simply to the effect that when metal is properly welded it is so completely fused together as to leave no separation. The evidence showed that immediately after the break the broken ends of the chisel showed a surface that was glassy, scaly or smooth in appearance. In answer to a hypothetical question setting out these facts, this witness testified that the break was caused by the forging work on the chisel not being properly done, that it was a poor piece of workmanship. The chisel was manufactured by plaintiff in error. It is not contended that the witness was not properly qualified as an expert, but it is urged that the facts did not justify the admission of expert testimony as to what caused the chisel to break; that the question was one upon which the jurors could draw their own conclusions without expert aid. We do not think the facts brought out by this testimony were of such character that they were within the knowledge of all men of common education and experience, and the expert witness' testimony was therefore admissible. Yarber v. Chicago and Alton Railroad Co. 235 Ill. 589; 12 Am. & Eng. Ency. of Law, (2d ed.) 422. The judgment of the Appellate Court will be affirmed. THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. ZINA CURTRIGHT, Plaintiff in Error. Opinion filed April 19, 1913. I. CRIMINAL LAW-when admission of conversation in evidence is not error. Where an objection is made to the admission of a conversation in evidence because it was not in the presence of the defendant but the witness states that it was in the room and near the defendant, it is not error to admit the testimony even though the court subsequently strikes it out because in doubt as to whether the defendant heard it. 2. SAME when the effect of admitting evidence subsequently stricken out is not prejudicial. The effect of admitting in evidence, in a murder trial, a conversation which the court struck out because in doubt as to whether the defendant heard it is not prejudicial, where such testimony was immediately followed by proof of another conversation of the same purport which was in the presence and hearing of the defendant. 3. SAME what testimony by physicians is not admissible as expert testimony but is admissible as proof of an actual test. In a murder trial, proof that two physicians, before rigor mortis had set in, made an actual test with the body of the victim by putting the revolver in her hand and bending her arm to see whether it would have been possible for her to have fired the shot, and that they considered it was impossible for her to have done so, is not admissible as expert testimony, but it is competent as proof of an actual test, and the error of the court in admitting it as expert testimony is immaterial. 4. SAME what is competent in rebuttal of evidence that the defendant was peaceable and law abiding. On the trial of a man for the murder of his wife, where the defendant offers evidence that he was peaceable and law abiding, that he treated his wife kindly and that she admitted she had a good home and a good husband, it is competent to prove, in rebuttal, that at different times the defendant brought men to his house and drank whisky and beer there, against his wife's objection and protest; that he called her a vulgar name and ordered her to fix them up some whisky, which she refused to do. 5. SAME when instruction as to weighing the evidence is not misleading. In Illinois, instructions calling the attention of the jury to the conduct and demeanor of the defendant during the trial are not permitted; but an instruction is not subject to that objection which authorizes the jury to determine which witnesses are worthy of credit from a consideration of their appearance on the |