collected at the stations along the railroad, consisting of whites and negroes, engaged in shooting firecrackers and otherwise making a noise as such crowds will do in anticipation of Christmas. They further testify that there was some boisterous conduct in the smoker, which, however, was promptly suppressed by the manager of trains, who happened to be on board at that time. They deny that they knew, save for the single incident just referred to, of any improper conduct committed by any one, either on the platform or in the coaches making up that train. The jury evidently credited those witnesses who testified so positively with regard to the shooting of pistols and other explosives on the platform, as well as to the boisterous conduct in the coach, and believed, where so many persons were aware of these things, that the railroad employés either knew, or by the slightest diligence might have been informed, of them. That the jury imputed the wound of this boy to the failure of those in control of the train to discharge their duty is evident from the verdict which was rendered. While it is true they could not foresee the wounding of the defendant in error, yet they should have anticipated that drunken ruffians armed with pistols, unless suppressed, would either accidentaly or intentionally inflict injury upon their fellow passengers.

We think there is abundant evidence to support the verdict of the jury, and to indicate that they were inexcusably negligent in preserving order. The principle of law controlling in the case is that "wherever a carrier, through its agents or servants, knows, or has opportunity to know, of threatened injury, or might have reasonably anticipated the happening of an injury, and fails or neglects to take the proper precaution, or to use proper means, to prevent or mitigate such injury, the carrier is liable." 5 Am. & Eng. Ency. of Law, p. 553.

This rule was applied in Ferry Co. v. White, 99 Tenn. 256, 41 S. W. 583. In that case the court quoted and approved a clause from the charge of Shipman, J., given to the jury in a suit involving the liability of a steamer and its owners for an injury sustained by one passenger from the violence of a fellow passenger. This clause was as follows: "The defendants were bound to exercise the utmost vigilance and care in maintaining order and guarding the passengers against violence, from whatever source arising, which might be reasonably anticipated, or naturally be expected to occur, in view of all the circumstances, and of the number and character of persons on board." Public policy requires the strict enforcement of this rule. No relaxation of it should be indulged by the courts. The comfort and safety of passengers who commit themselves to a carrier depend upon it. The facts of the present case eminently call for its application.

Shannon's Code, §§ 4146, 4147, in effect provide that when a husband dies testate, and the widow, not being satisfied with the provisions for her, dissents from the will within a specified time, she shall be entitled to one-third of the personal estate. Held, that where a widow failed to dissent from the will within the time required, and the husband died intestate as to a portion of his personal property, the same passed to his distributees to the exclusion of the widow.

3. STATUTES INTERPRETATION

MENT.

RE-ENACT

Where a statute has received a judicial interpretation, and it is re-enacted, it will be presumed the Legislature intended it should have the same construction which was given to the earlier statute.

Appeal from Chancery Court, Henry County; A. G. Hawkins, Chancellor.

Suit between T. B. Walker, as executor of Mrs. Henry Bobbitt, deceased, and James Bobbitt and others, and from the decree the latter parties appeal. Affirmed.

Farabaugh & Rye, for appellants. Lamb & Marr, Quintin Rankin, and W. S. Coulter, for appellee.

BEARD, C. J. One Henry Bobbitt died intestate in Henry county, Tenn., in the year 1890. He left surviving him a widow, Jane Bobbitt, but no lineal descendants. While the owner of some personal property, the only real estate in which he had an interest at the date of the making of his will or at any time thereafter was in a tract of 100 acres lying in that county, which had been conveyed to him and his wife, and of which they owned the estate by entirety.

In the first clause of his will the testator provided for the payment of his funeral expenses and his debts, and by the third clause he nominated his wife, Jane, as executrix. The second clause of the will is as follows: "I give and bequeath to my beloved wife, Jane Bobbitt, all of my estate, both real and personal for and during her natural life, and at her death, I will and bequeath twothirds of whatever may remain to the Hopewell Presbytery, of the Cumberland Presbyterian Church, to be used by said Presbytery in any way they may see proper." By a cod

icil to the will, duly executed, the twothirds interest given in this clause to Hopewell presbytery was changed so as to give it to the trustees of the Cumberland University for the endowment of the theological department. It will be observed that the testator made no disposition of the other one-third remainder interest in either his real estate or personal property.

Upon his death, his wife, surviving him, took upon herself the execution of the will, and at the same time accepted its benefits. From sources not disclosed in the record she received as executrix $6,168.81 from personalty belonging to the estate. From this she paid to the trustees of Cumberland University the sum of $2,000, which was received by them in full satisfaction of the residuary legacy given to them by the codicil. This payment left in her hands the sum of $4,168.81, derived from the personal estate of the testator. She also sold the tract of land of which mention has been made, and received therefor the sum of $4,000. Subsequently she died, leaving a will by the terms of which she gave all of her estate to certain of her collateral kindred. A controversy having arisen between these legatees and the distributees of Henry Bobbitt as to the ownership of these two funds, the present bill was filed by the executor of Mrs. Bobbitt's will, asking the chancery court to fix and determine the rights of the respective claimants to these funds.

As has already been stated, the testator, Henry Bobbitt, died intestate as to onethird of his estate, and no provision was made in his will for the contingency which subsequently occurred of the remaindermen, the trustees of the Cumberland University, taking a part for the whole of the two-thirds given to them. As to the balance thus left upon this settlement, it is clear that it also constituted a portion of his estate undisposed of by his will.

Upon these facts the chancellor held that, surviving her husband, Mrs. Bobbitt took the entire interest in the tract of land of 100 acres, and that her right of survivorship was not affected by the doctrine of election invoked by the distributees of Henry Bobbitt, and further that, her husband having died intestate as to the portions of the personal estate, she took them under the general statute of distribution; the whole passing to the legatees named in her will. From his decree so holding the heirs and distributees of Henry Bobbitt have appealed and assigned errors.

We agree with the chancellor that the doctrine of election neither as to the land in question nor its proceeds can be invoked by the appellants. This doctrine properly arises where a testator manifests a clear intention to dispose of property not his own, and by other parts of his will from his own estate confers benefits upon the owner of that property. Dashwood v. Peyton, 18 Vesey,

41. In such case the owner is put upon his election, and if he accepts the benefits he is excluded or estopped from asserting claim to the property so disposed of.

But as we understand, this rule or doctrine is not applied save in a case of property in which the testator has no interest. If he has some interest of his own (more than mere possession) in the thing disposed of, bequeathed by him, he will be deemed by his use of general terms to have intended only a bequest or a devise of his interest, and the owner will not be put to an election between maintaining his former title and claiming the new benefits provided by the will. McGinnis v. McGinnis, 1 Ga. 496; Havens v. Sackett, 15 N. Y. 365; Leonard v. Steele, 4 Barb. 20.

That the testator, Henry Bobbitt, had an interest in this realty at the time he made his will, is well settled. This continued in him until his death. This interest might ripen into a full and complete ownership upon the death of his wife leaving him surviving. We think the existence of this interest, upon principle as well as the authority of the cases cited, would preclude the application of the rule in question. This interest was a valuable one which his creditors might have reached and subjected by execution. Mfg. Co. v. Collier, 95 Tenn. 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am. St. Rep. 921. But the event which made the will operative (that is, his death) was the same which carried the whole estate in this land into Mrs. Bobbitt, by reason of the fact that she, of the two, was the longer liver.

The question as to the devolution of the personal estate of which Henry Bobbitt died intestate is now to be considered. In doing this it is necessary to examine the older statutes, as well as the Code provisions with regard to the distribution of the estate of persons dying intestate, and the cases in which some or all of these have been construed and applied.

At common law a devise to the wife by her husband did not prevent her from setting up claim to dower unless it was so expressed in or arose by implication from the terms of the will too strong to be resisted; otherwise she could take both her dower and her bequest. This, however, was changed by a provision in chapter 22 of the Acts of 1784. By section 8 of the act, among other things, it was provided that "if any person should die intestate, or make his last will and testament and not therein make any express provision for his wife by giving and devising unto her such part or parcel of his real and personal estate as shall be fully satisfactory to her, such widow may signify her dissent thereto before the judge of the circuit court * # in open court within six months after the probate of said will, and then she shall be entitled to dowto wit, one third part of all the

er

lands seised and furthermore if such husband should die leaving no child, or not more than two, then in that case she shall be entitled to one-third part of the personal estate; but if he should die leaving more than two children, then, and in that case, such widow shall share equally with all the children, she being entitled to a child's part."

of which her husband dies

It will be seen this statute provides for widows belonging to two different classes, the first of which embraces those whose husbands died without leaving a will; and the second, widows who, being dissatisfied with the provisions in their favor made in the wills of their husbands, dissented therefrom in the manner and time fixed by the statute. A widow belonging to the second class by a statutory renunciation of the will was put upon the same plane with one whose husband died intestate, and both were let into the estates of their deceased husbands in the same decree.

So far as this act dealt with the case of a widow whose husband died intestate, it was but a re-enactment, with some modification, of section 1 of chapter 3 of the Acts of 1766; but the provision for the widow who, dissatisfied with, renounced, her husband's will, was a new departure.

By that statute, as was said in Malone v. Majors, 8 Humph. 577, "a provision for a wife in a will of itself forces her to elect whether she will take under or against the will, and that within six months from the probate of the will, for, if she do not express her dissent in open court within that time, the provision for her shall be considered as fully satisfactory to her." So it was held that the widow whose claims were there in controversy was not entitled to any part of the estate of which her husband died intestate.

Beyond all doubt, this was regarded as a sound interpretation of the statute, and it is a part of the judicial history of the state that, so construed, it was often applied by the courts. In McClung v. Sneed, 3 Head, 218, decided in 1859, but involving matters which arose many years prior thereto, in speaking of one whose husband had provided for her in his will, but who had failed to renounce the provision, the court said: "It is a settled law of this state that she is bound by its provisions, and can take no other part of his estate."

Thus stood the law at the compiling of the Code of 1858. Under section 2404 of that Code (Shannon's Code, § 4146) there was brought forward so much of section 8 of chapter 22 of the act of 1784 as related to the rights of a widow for whom provision was made in her husband's will, but who, dissatisfied therewith, dissented; the time for her dissent being extended to 12 months. As in the original act, it was there provided that such widow so dissenting should par

ticipate in his estate as if her husband had died intestate.

It will be observed that this section fails to fix (unlike the original act) the extent to which the dissenting widow would be permitted to share in his estate. As compiled, this was determined by section 2429 (Shannon's Code, § 4172), which provided in cases of intestacy, in the first subsection, that the personal estate of the intestate should go to the widow and children, or the descendants of children-the widow taking a child's share-and in the second subsection to the widow altogether, if there were no children nor the descendants of children. This omission in the codification was corrected by section 1, c. 3, of the Acts of 185960, which is in these words: "When a husband shall die leaving a will, from which the widow dissents within the time and in the manner provided by law, and leaving no child, or not more than two, his widow shall be entitled to one third part of the personal estate, in addition to her dower in the real estate as provided by law. But, if the husband had more than two children, the widow shall share equally with all the children, she being entitled to a child's share." This now constitutes section 4147 of Shannon's Code.

So taking the provision of the Code with regard to the dissent by the widow from the will of her husband, and this section of the act of 1859-60, and we have in substance, and without marked change in phraseology, a reproduction of so much of the statute of 1784 as had regard to this matter. This being so, why should the court repudiate the construction so long acquiesced in of that statute?

It is a rule well established, and perhaps universally accepted by courts and textwriters, that where a statute has received a judicial interpretation, and it is re-enacted, it will be presumed the Legislature intended it should have the same construction which was given to the earlier statute. Black on Inter. of Laws, 369; Sutherland on Stat. Con. §§ 255, 256, 424; Bates v. Sullivan, 3 Head, 632; Tenn. Hospital v. Fuqua, 1 Lea, 608.

That this rule was recognized, at least by implication, and the construction given to the original statute in Malone v. Majors, supra, and other like cases, was assumed to be a part of its texture as re-enacted in the Code, is apparent in the case of Waddle v. Terry, 4 Cold. 51. There Milligan, J., speaking for the court, said: "By our law (Code, § 2404) she [the widow] has the right, within one year after the probate of the will, to elect whether she will accept its provisions or renounce them.

If she fails within the time limited to express her dissent according to the forms of law, she is held to be satisfied with the will, and bound by its provisions."

Still later, in Waterbury v. Netherland, 6 Heisk. 513, it is said that, from the failure of the widow to express her statutory dissent to her husband's will, it will be conclusively presumed she is satisfied with its provisions, and will not be permitted to share in any estate of which he died intestate.

We think this is a sound view of the law. However, a different one was expressed in Demoss v. Demoss, 7 Cold. 256. The rule there announced was the one applied by the chancellor in the present case. We have carefully examined the opinion in that case, and we are satisfied that its premises were unsound, and the conclusion there reached is in the face of the canon of interpretation to which reference has been made. It stands as against the great weight of authority. We regard it as misleading, and it is therefore overruled.

The result is that the decree of the chancellor is affirmed in so far as it disposed of the proceeds of the realty in question, and is reversed as to the personal estate of which Henry Bobbitt died intestate. Under the statute this estate passed to his distributees.

Where a complaint against a carrier for loss of goods as originally filed contained no statement concerning a pretended bill of lading, which was first disclosed on a motion made by defendant to have the complaint made more definite and certain, when it was inserted in the complaint by way of interlineation, it was proper for the court, on its appearing that the bill of lading had never been signed by the carrier's agent, to permit an amendment of the complaint to conform to the proof as authorized by Mansf. Dig. § 5080 (Ind. T. Ann. St. 1899, § 3285).

Appeal from the United States Court for the Central District of the Indian Territory, before Justice Wm. H. H. Clayton, June 6, 1901.

Action by W. G. Patrick against the Missouri, Kansas & Texas Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

On August 3, 1900, the plaintiff filed with G. T. Ralls, United States commissioner, a complaint, and alleged that defendant, as a common carrier, received from the plaintiff at South Canadian, on September 22, 1899, "two certain boxes or packages for shipment, consigned to the plaintiff at Durant, Indian *Rehearing denied June 14, 1905.

Territory, of the value of $60.40, as shown by account hereto attached, marked 'Exhibit A,' and made a part of the complaint. Plaintiff says that 24 hours was a reasonable time for the delivery of the goods at Durant; that he had called for said goods at various times; that defendant had failed and refused to deliver the same, to his damage in the sum of $60.40. Wherefore plaintiff asks judgment against the defendant for said sum and costs." Summons was issued, returnable September 3, 1900. On the same day the defendant filed its motion to require plaintiff to make his complaint more definite and certain, and to allege whether the contract under which the goods claimed by plaintiff were shipped was verbal or in writing, and, if in writing, that plaintiff be required to attach his original shipping contract to his complaint. Motion was sustained, and amendment made by interlineation as follows: "And said company made its bill of lading for said property, which is filed herewith as 'Exhibit B.'" And on the same day defendant filed its answer, and admits that it received from the plaintiff at South Canadian, Ind. T., on or about September 22, 1899, two boxes or packages for shipment, and admits that the same were consigned to the plaintiff at Durant, Ind. T., but denies that they were of the value of $60.40, or other sum; denies that a reasonable time for the delivery of said goods at Durant would not exceed 24 hours; denies that the plaintiff had called for the same, or the defendant refused to deliver the same. The defandant, further answering, states that said boxes "were received by this defendant for shipment by virtue of a written contract, a copy of which is hereto attached, marked 'Exhibit A,' and made a part of this answer; that said contract was entered into on the 22d of September, 1899, between the plaintiff and the defendant, * * it being provided in said contract that, in the event of any loss or damage thereto, the liability of the defendant railway company should be limited to the sum of five dollars per hundredweight; that under the terms of the con. tract aforesaid the measure of damages, if any, in this case, should be five dollars per hundredweight." Defendant states that the weight of said two boxes was 150 pounds, that said written contract provided that any claim which the plaintiff might have or prefer against the defendant should be presented to some general officer or agent of said company within 30 days after the loss or damage had been sustained, and that defendant had a station agent at South Canadian and at Durant, Ind. T., to whom such claims might have been presented, but that plaintiff failed to present any such claim within said period of 30 days, and further states that the failure to receive the goods was not due to any negligence of the defendant, and was due to the negligence of the plaintiff, and asks judgment for its costs.

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Said cause was tried by said United States commissioner on the 3d day of September, 1900, and verdict and judgment had for plaintiff for $60.40, from which the defendant appealed to the United States court, Central District, at Atoka. On February 13, 1901, petition for change of venue was filed by defendant, and said cause was transferred to the United States court at South McAlester, Ind. T. On June 6, 1901, the same being a day of the regular May, 1901, term of said court, this cause came on for trial. The same was tried by a jury, and after the introduction of evidence the plaintiff was permitted to amend his complaint by adding the words, "which bill of lading was not signed," to which amendment the defendant at the time excepted; and thereupon the court instructed the jury to return a verdict for the plaintiff, and the jury returned the following verdict: "We the jury duly empaneled and sworn to try the issue in the above entitled cause, do find the issues in favor of the plaintiff and assess his damages at sixty and forty hundredths dollars. [Signed] William T. Thurman, Foreman."

On June 8, 1901, the defendant filed its motion for a new trial, and on the 10th day of June, 1901, "the court, having seen and heard said motion, and being well and truly advised in the premises, doth overrule the same, to which ruling of the court the defendant then and there in open court excepted." Whereupon judgment was rendered in favor of the plaintiff against the defendant for $60.40, with interest thereon at the rate of 6 per cent. per annum from this date until paid, together with his costs. On the same day defendant was allowed 60 days in which to file his bill of exceptions, and that in the meantime execution under the judgment be suspended. Said bill of exceptions was filed with the clerk of said court on the 21st day of June, 1901, and on the 18th day of July, 1901, upon the application of the defendant, an appeal was granted to the United States Court of Appeals for the Indian Territory by William P. Freeman, clerk of the said United States Court of Appeals. On the 15th day of July, 1901, a supersedeas bond was executed by the defendant, and the case was thus appealed to this court.

Clifford L. Jackson, for appellant. Fortune & Fort and L. D. Horton, for appellee.

TOWNSEND, J. (after stating the facts). The appellant in this case (the defendant below) has filed four specifications of error, which are as follows: (1) The court below erred in refusing to instruct the jury to return a verdict for the defendant as requested, (2) The court below erred in refusing to give the following instructions asked by the defendant: "The court instructs the jury that even if you should find the defendant liable in this case under the other instructions of the court, then you are further in

structed that in assessing the damages of the plaintiff you cannot fix a higher valuation upon the goods in question than at the rate of five dollars per hundredweight." (3) The court erred in instructing the jury as follows: "You are instructed to find your verdict for the plaintiff, and to assess his damages at the sum of $60.40." (4) The court erred in overruling defendant's motion for a new trial.

It is hardly necessary to notice or discuss any other than the second specification of error, the defendant contending "that the contract governing the shipment of goods in controversy was in writing, and fairly limited the value of the goods, and the jury should have been so instructed, and should not have been instructed to assess the damages of the plaintiff below at the full amount sued for, and because of the error of the trial court in these respects the motion for a new trial should have been granted." The question is thus fairly presented as to whether the paper which was attached to the plaintiff's complaint on motion of the defendant, and subsequently set forth as an exhibit to the answer of the defendant, constituted a bill of lading under the law. The appellant in his brief says, "This bill of lading was not a bill of lading in accordance with the technical commercial law, in that the agent of the carrier failed to sign it." The only effect that could be attached to the failure of the agent to sign this bill of lading would be that it would not be negotiable on the market, in accordance with the mercantile usage; but the failure of the agent to attach his signature could not even have had that effect in this instance, because in the bill of lading was a stipulation as follows: "Not negotiable unless shipment be consigned to shipper's order." Is this statement correct? This paper purports in the first instance to be a receipt for the two boxes of household goods. Is a receipt that is unsigned a valid receipt? It also purports to contain a stipulation of a special contract; but when the same has not been signed by the appellant's agent, and there is no evidence that the plaintiff has ever assented to the special stipulation thus set up, is it such a contract as would bind either the appellant or the appellee? Mattie Patrick, the wife of the appellee, in her deposition introduced in evidence, as shown by the bill of exceptions, states as follows: "The porter took the goods out of the wagon and put them on the platform of the depot at South Canadian, and afterward he gave me a bill of lading. I asked the agent to give me a bill of lading. When I first asked him, he said it was no use; that the goods would come on the local behind me. I insisted that he give me a bill of lading, which he did, and I afterward delivered the same to my husband. I cannot read or write, but the paper which the agent gave me as a bill of lading was the one I turned over to Mr. Patrick. The agent did not read the bill of

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