It is unnecessary to consider the assignment of error based on bill of exceptions No. 8, as the question involved is not likely to arise upon the next trial, since, as we have seen, the copy or triplicate original of the report of the accident offered in evidence was admissible, without notice to produce the original. The fact that the defendant was insured against accidents could throw no light upon the question of whether or not the defendant was guilty of negligence. It may be true that the fact of insurance might have the effect of lessening the reason or motive of the defendant to be careful; but the question for the jury to pass on was, not of how much or how little motive the defendant may have had for being careful, but whether as a matter of fact it had exercised reasonable care.

As was said by the Supreme Court of Maine, in the case of Sawyer v. Shoe Co., 90 Me. 369, 38 Atl. 333, "to allow juries in cases of this kind to take into consideration the fact that an employer has insured against accident would do more harm than good, and would increase the already strong tendency of juries to be influenced in cases of personal Injury, especially where a corporation is defendant, by sympathy and prejudice." See, also, Tremblay v. Harnden, 162 Mass. 383, 38 N. E. 972; Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494.

The action of the court in giving instruction No. 1, asked for by the plaintiff, is assigned as error. The objection made to the instruction is that it "does not define what in law constitutes an employé of the defendant company. In this case the issue was sharply drawn as to whether Knight was a servant of the defendant company, under its direction and control, or whether he was the servant of an independent contractor. The instruction fails to make clear this distinction."

If this had been the only instruction given, there would be, under the facts of this case, much force in the objection made to it; but, when read in connection with the defendant's Instruction No. 1, as it must be, the jury could not have been misled by it. The defendant's instruction No. 1 clearly informed the jury that the relation of master and servant did not exist between the defendant and the plaintiff, if Haw was an independent contractor and the plaintiff was employed by him.

As the evidence will be different upon the next trial, it is unnecessary to consider the assignment of error based upon the refusal of the court to set aside the verdict because contrary to the evidence.

The judgment complained of must be reversed, the verdict set aside, and the cause remanded for a new trial, to be had not in conflict with the views expressed in this opinion.

(106 Va. 787)

SMILEY et al. v. PROVIDENT LIFE & TRUST CO. OF PHILADELPHIA. (Supreme Court of Appeals of Virginia. Jan. 17, 1907. On Rehearing, March 21, 1907.) 1. WRIT OF ERROR-DECISIONS REVIEWABLE— FINAL JUDGMENTS-ORDERING REHearing.

Code 1887, § 3454 [Va. Code 1904, p. 1836], allows a writ of error from final judgments or orders. Held, that a writ of error cannot be awarded to an order setting aside a judgment and granting a rehearing, as it is not a final judgment.

On Rehearing.

2. WRIT OF ERROR-DECISIONS REVIEWABLE -FINAL JUDGMENTS-ACTIONS AT LAW.

Code 1887, § 3454 [Va. Code 1904, p. 1836]. provides that any person aggrieved by any order in certain proceedings or any party to case in chancery wherein there is a decree or order dissolving an injunction, etc., or to any civil case wherein there is a final judgment, decree, or order, may present a petition, if the case be in chancery, for an appeal, and, if not in chancery, for a writ of error or supersedeas to the judgment or order. Held, that a writ of error in any case in law was not authorized before final judgment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 329-331.] 3. SAME-EJECTMENT.

Acts 1902-03-04, p. 779, c. 499, amending Code 1887, § 3454 [Va. Code 1904, p. 1836], by providing that any person aggrieved by any judgment. decree, or order in a controversy concerning the title to or boundaries of land, if not in chancery, may present a writ of error to the judgment or order, does not give a party to an action in ejectment the right to review until a final judgment has been entered in the

cause.

Error to Circuit Court, Augusta County.

Action by John P. Smiley and others against the Provident Life & Trust Company of Philadelphia. From an order granting defendant's petition to set aside a judgment and for a rehearing, plaintiffs bring error. Writ dismissed.

Braxton & McCoy, for plaintiffs in error. J. M. Perry, for defendant in error.

CARDWELL, J. This is a writ of error to a judgment of the circuit court of Augusta county awarding a new trial to one of the defendants in an action of ejectment theretofore pending and determined in that court.

The action was brought by plaintiffs in error in March, 1897, against the defendant in error (the Provident Life & Trust Company of Philadelphia), the Virginia Iron Investment Company, J. Harry Lee, and Stephen Lee to recover 26/48 interest in a tract of land situated in Augusta county, known as the "Bare Ore Bank" or the "Bare Bank Property." Several years prior to the institution of the suit the whole of the property was claimed to be owned by J. Harry Lee and Stephen Lee (claiming the surface right), and a man by the name of Joslyn (claiming the mineral right), so that Joslyn, the said Lees, and plaintiffs in error here claimed under one and the same source of title. Joslyn, by

deed duly recorded in Augusta county, conveyed his title (such as it was) to the Virginia Iron Investment Company, which, in turn, executed a deed of trust upon the property, conveying the Joslyn title to the defendant in error, a corporation, in trust to secure payment of $250,000 evidenced by bonds issued by the Virginia Iron Investment Company. Upon the institution of this suit process was served upon the Virginia Iron Investment Company in person, but, it appearing that the defendant in error and the said Lees were nonresidents of the commonwealth of Virginia, the process upon them was served by order of publication duly executed and matured.

At a trial of the cause on the 31st day of May, 1889, plaintiffs in error recovered a judgment against all of the defendants for various undivided interests in said tract of land, aggregating 26/48 thereof, also for their costs, and the suit was stricken from the docket as an ended cause.

On May 10, 1901, the defendant in error filed its petition in the circuit court of Augusta county reciting the foregoing facts, denying it had ever appeared to defend the said action, and praying that the said cause be reopened and reheard, and that the judgment theretofore rendered therein be set aside and annulled. Upon a hearing on this petition, the answer of plaintiffs in error thereto and an agreed statement of the evidence, based upon the only ground of defense that plaintiffs in error were allowed to make to the petition, the prayer of the petition to rehear was granted, the judgment in ejectment set aside as to defendant in error, and it was permitted to plead or otherwise make defense to the original declaration in ejectment. It is to that judgment this writ of error was awarded.

That this court had not jurisdiction to award a writ of error to the ruling complained of, unless it is a final determination of the rights of the parties within the meaning of a final judgment, does not admit of argument. Codes of Va. 1887 and 1904, § 3454; Lockridge v. Lockridge, 1 Va. Dec. 61; Rogers' Adm'r v. Bertha Zinc Co., 1 Va. Dec. 827, 19 S. E. 782; Tucker v. Sandidge, 11 Va. Law J. 107; Priddy & Taylor v. Hartsook, 81 Va. 67.

This ruling is not, in the opinion of the court, a final judgment within the meaning of these words. It leaves the original action of ejectment to be yet tried and determined as between plaintiffs in error and the defendant in error upon the issues yet to be made up on the plea of the general issue or other defense made by the defendant in error pursuant to the ruling of the circuit court awarding it a new trial. As to what may be the ultimate determination of the rights of the parties, we can, in the present situation of the case, know nothing judicially. Non constat but that at a trial of the issue or issues between the parties plaintiffs in error will prevail, in which event they would not

be prejudiced by the ruling here complained of. On the other hand, if defendant in error should prevail, a writ of error to the final Judgment of the circuit court in its favor would bring under the review of this court, not only that final judgment, but first the ruling of the circuit court awarding defendant in error a new trial that it is designed to have reversed upon this writ of error, which is a judgment in no sense final in its character.

The application of plaintiffs in error to this court, therefore, was premature, and the writ of error must be dismissed as improvidently awarded.

On Rehearing.

PER CURIAM. At the January term, 1907, of the court, the writ of error which had theretofore been awarded in this cause (an action of ejectment) was dismissed as improvidently awarded, upon the ground that there had been no final judgment in the cause.

It is insisted in the petition to rehear that by the act of December 31, 1903 (Acts 190203-04, pp. 778, 779, c. 499), amending section 3454 of the Code 1887 [Va. Code 1904, p. 1836], a writ of error will lie to an order or judgment in action of ejectment, although there has been no final judgment in the cause. The petition states that prior to that amendment section 3454 did not require that a final order should be entered "in a controversy concerning the probate of a will or the appointment or qualification of a personal representative, guardian, curator or committee, or concerning a mill, roadway, ferry, wharf or landing," before there could be an appeal or writ of error, and that, as the amendment to section 3454 places "controversies concerning the title to or boundaries of land" in the same class as the controversies named, a writ of error lies to any order or judgment in action of ejectment, although no final judgment has been entered in the

cause.

If it were true that prior to the amendment of section 3454 an appeal or writ of error did lie from or to an order or judgment in that class of cases, although there had been no final judgment in the cause, the contention of the petitioners for the rehearing would be clearly right. But prior to the amendment an appeal or writ of error did not lie in any case at law until there had been a final order or judgment in the cause. There was a provision in that section that in any case in chancery wherein there is a decree or order dissolving an injunction or requiring money to be paid, or the possession or title of property to be changed or adjudicating the principles of a cause, there might be an appeal, although no final order or decree had been entered therein. But there was nothing in the section, as construed by this court, which authorized a writ of error in any case at law until there had been a final judgment. See Gillespie v. Coleman,

98 Va. 276, 36 S. E. 377, and authorities cited, especially Trevilian v. Louisa R. Co., 3 Grat. 326; Hancock v. R. & P. R. Co., 3 Grat. 328; Ludlow v. City of Norfolk, 87 Va. 319, 12 S. E. 612; Postal Tel. Co. v. N. & W. R. Co., 87 Va. 349, 12 S. E. 613; R. & E. R. Co. v. Johnson, 99 Va. 282, 38 S. E. 195.

We are of opinion that the language of section 3454, as amended, does not give a party in an action of ejectment the right to have the proceedings in the cause reviewed by this court until a final judgment has been entered in the cause.

The petition to rehear must therefore be denied.

(106 Va. 710)

JORDAN'S ADM'X et al. v. RICHMOND HOME FOR LADIES et al. (Supreme Court of Appeals of Virginia. March 14, 1907.)

1. WILLS-DESIGNATION OF BENEFICIARIES— CORPORATIONS.

A testatrix made a gift to "the Trustees of the Presbyterian Home for Old Ladies situated in Richmond." The only home for ladies in Richmond was the "Richmond Home for Ladies," incorporated to give a home to Presbyterian and Methodist indigent women, and permitting the admission of women not connected with either of the denominations. The testatrix was a Presbyterian. Three years after the execution of her will she consulted an attorney with a view of having him redraft it. In the redraft a blank space was left for the insertion of the correct name of the corporation. Held, that the Richmond Home for Ladies was identified as the beneficiary intended.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 1110.]

2. CORPORATIONS CONSTITUTIONAL PROVISIONS PURPOSE OF INCORPORATION..

A benevolent business corporation, with a capital stock, chartered for the purpose of maintaining an institution in which indigent women connected with designated religious denominations might be provided with a comfortable home, either gratuitously or on such charges as might be prescribed, and authorizing the admission of infirm women not connected with either of such religious denominations, and governed by a board of directors, with power to fill vacancies and to appoint managers, does not bear such relations to any religious denomination as to contravene Const. art. 5. §§ 14, 17, prohibiting the incorporation of religious denominations, etc.

3. SAME.

Acts 1853-54, p. 32, c. 46, as amended by Acts 1855-56, c. 36, and by Acts 1866-67, p. 577, c. 129, and, as amended, carried into Code 1887. § 1145, authorizing courts to grant charters for the conduct of any enterprise or business which might be lawfully conducted by a body politic or corporate, except to construct a turnpike, railroad, canal, or bank, authorizes the incorporation of an institution for the support of indigent women, either gratuitously or on such charges as may be prescribed. 4. CHARITIES BEQUESTS - VALIDITY TAINTY OF PURPOSE

CER

A general bequest of the income of certain property to a benevolent and business corporation, existing under a valid charter for the purpose of maintaining an institution in which indigent and infirm women might be provided with a home, either gratuitously or for such compensation as might be prescribed, is not ob

jectionable as being too indefinite, because not mentioning the purpose of the gift, but will be enforced by equity.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Charities, §§ 51-56.]

5. WILLS-CONSTRUCTION-INTESTACY.

A testatrix gave the interest of corporate bonds to two legatees as long as they remained unmarried, and gave the income of the remainder of her property to a third person for life, who died before the two legatees, and provided that after the death of the three beneficiaries the income of the property should be paid annually to a benevolent institution. Held, that there was no partial intestacy with respect to the income from the trust estate resulting from the death of the third person previous to the death of the two legatees.

6. SAME-RESIDUARY Legatee.

A testatrix gave the interest of specified corporate bonds to two legatees as long as they remained unmarried, and the income of the balance of her property to a third person for life, and provided that, after the death of the two legatees and the third person, the interest of all the property should be paid annually to a benevolent institution. Held, that the benevolent institution was a residuary legatee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 1279.]

Appeal from Chancery Court of Richmond. Suit by the Virginia Trust Company, executor of the will of Mary E. McClung, deceased, against the Richmond Home for Ladies and others, to construe the will of the deceased. From a decree construing the will, Jordan's administratrix and others, heirs at law and next of kin of the deceased, appeal. Affirmed.

B. Rand. Wellford, Wm. A. Anderson, and Jas. E. Edmunds, for appellants. Coke & Pickrell and Christian & Christian, for respondents.

WHITTLE, J. This is a suit in equity, instituted in the chancery court of the city of Richmond by the Virginia Trust Company, executor of the will of Mary E. McClung, deceased, against her heirs at law and next of kin and the "Richmond Home for Ladies" and others, to construe and give effect to testatrix's will.

The text of the will is as follows:

"Sulphur Mines, October 12th, 1893. "This is my will as follows: I wish the Va. Safe Deposit & Fidelity Company to act as executors & distribute the interest as I direct.

"1st. To Georgie Kenney as long as she lives unmarried the interest of $5,000 semiannually of Sulpher Mines Company's bonds which I held; if she marries or dies then the interest goes to J. C. Petty as long as he lives.

"2d. To my old family servant Margaret Davis as long as she lives unmarried, the interest of $4,000.00 of Va. Sulphur Mines Co. bonds (8 per cent.). If she marries or dies then the interest is to be paid to J. C Petty as long as he lives

"All my real estate, house and lot in Cor ington, Va., tract of land in Alleghany

(the Rich Holes) and % interest in the Iodine Alum Spring, and 100 acres of land near Long Dale Mines, Alleghany Co. Also 2 lots in Lexington, Va., to be sold as is wise in the opinion of the executors, and the proceeds invested. The interest of this and of all other bonds, stock and whatever property I may be possessed to be given to J. C. Petty as long as he lives, and with the exception of $200 annually to be expended as follows: $150 to keep in good order and repair my section in the Cedar Hill Cemetery near Covington, Va., in which our family are buried, $50 to be given to the trustees of the Cedar Hill Cemetery for the general improvement of the Cemetery. The trustees are requested to attend to the repairs, etc., of my section in the Cemetery.

"After the death of Georgia Kenney, Margaret Davis and J. C. Petty, I wish the interest of all the property I leave to be paid annually, except the perpetual fund of $200 for the Cedar Hill Cemetery and my section therein to be paid to the Trustees of the Presbyterian Home for Old Ladies situated in Richmond, Va. I further request that $100 be given to Alice Adams and $100 for each Herbert and Goram Adams to be put on interest to be given them when they are 21 years old. And request that Mr. J. C. Petty will see that they have good homes and are well taken care of until they are old enough to take care of themselves. Those that I have left my estate to have been my friends when I was in need of sympathy and kindness after being bereft of all my own dear ones. May God bless and keep them all is the wish and prayer of their friend. "Mary E. McClung."

In response to certain inquiries submitted by the court, the master in chancery returned the following findings:

(1) That there were no such persons as the trustees of the Presbyterian Home for Old Ladies, situated in Richmond, Virginia, "but that the testatrix by that description meant the 'Richmond Home for Ladies,' which is a corporation chartered by the circuit court of the city of Richmond."

(2) "That the 'Richmond Home for Ladies' is capable of taking the bequest made in the will and that the bequest to it is legal and valid."

(3) That there was no intestacy resulting from the death of J. C. Petty in the lifetime of Georgia Kenney and Margaret Davis; but that at his death "the annuity to him went to the home, to open and take in the special annuities to Georgia Kenney and Margaret Davis when those annuities, respectively, shall lapse."

(4) That the bequest of $50 a year, perpetually, to the trustees of Cedar Hill Cemetery, for the general improvement of the cemetery, is valid; but that there is an intestacy as to the bequest of $150, to be expended annually to keep testatrix's section in the cemetery in good order and repair, and

that "the $150 per annum, being a portion of the residuum of the testatrix's estate," would go to her next of kin.

By the decree under review the chancery court overruled exceptions of the appellants to the report of the master on the first, second, and third findings, and sustained the exception of the Richmond Home for Ladies to so much of the fourth finding as declares that the bequest of $150 per annum, in perpetuity, goes to testatrix's next of kin. The court was of opinion that the bequest was invalid and void; but, with the exception of the accumulation therefrom prior to the death of J. C. Petty (as to which no decision was made), that the income after his death passed to the Richmond Home for Ladies as residuary legatee.

The appellants assign as error the rulings of the court in the particulars indicated.

Upon the first assignment we have no difficulty in agreeing with the chancery court that the bequest "to the trustees of the Presbyterian Home for Old Ladies, situated in Richmond, Virginia, was intended by the testatrix to be made to the defendant the 'Richmond Home for Ladies,' an institution incorporated in due form of law by an order of the circuit court of the city of Richmond, entered on the 28th day of February, 1883."

The well-established rule, that parol evidence is admissible to indentify the object of a testator's bounty is succinctly stated in the case of Roy's Ex'rs v. Rowzie, 25 Grat. 604, 605, as follows: "Parol evidence is always admissible, and even necessary, to lead us to the person or object and subject referred to in a bequest. The court of construction, with the testator's will in hand, looks for the object of his bounty and the thing intended to be given, and expects them to answer precisely the terms of description given of them in the will. Generally they do, and there is no difficulty. Often they do not; and sometimes there are two or more objects or subjects which answer precisely or equally the description contained in the will. In such cases resort must be had to parol evidence and the surrounding circumstances to show what the testator intended by the expressions which he used; and almost always his intention is thus ascertained with sufficient, if not unerring, certainty. If it cannot be, the bequest must then fail of effect; but the court is always reluctant so to declare. It will not require that the object or subject shall have every earmark given to it by the testator. Nay, it may in some respect have different earmarks, and yet the description contained in the bequest may be sufficient to give it effect. 'Falsa demonstratio non nocet cum de corpore constat' is a maxim which expresses a rule of construction to which the court has frequent recourse in such cases."

So, also, the Court of Appeals of New York declared, in the case of Lefevre v. Lefevre, 59 N. Y. 440-442: "A corporation may be designated by its corporate name, by the

name by which it is usually or popularly | called and known, by a name by which it was known and called by the testator, or by any other name or description by which it can be distinguished from every other corporation; and, when any but the corporate name is used, the circumstances to enable the court to apply the name or description to a particular corporation and identify it as the body intended, and to distinguish it from all others and bring it within the terms of the will, may, in all cases, be proved by parol."

Tested by these recognized canons in the interpretation of wills, the evidence and surrounding circumstances show beyond a `reasonable doubt that the Richmond Home for Ladies was intended as the chief object of testatrix's bounty. It appears that her only relatives were collateral kindred, most of whom were strangers to her; and by fair implication from the language of the will her relations with such of them as were known to her were not cordial, for she assigns as a reason for excluding them from participation in her estate that she had left her property to those who were kind to her in her bereavement. It also appears that she was a devoted Presbyterian; and her disposition to make a home in the city of Richmond for ladies of that communion the chief object of her bounty is placed beyond question by the testimony of an intelligent lawyer, whom she consulted three years after the date of the will in controversy, with the view of having him redraft her will so as to make certain changes in the original instrument. Accordingly, in the draft of a will prepared by him at her request, a clause was incorporated carrying out that intention, and a blank space was left for the insertion of the corporate name of the institution-a precaution rendered necessary by the fact that Mrs. McClung was not certain about the name, and was advised of the importance of accuracy in that regard. The draft of the new will was written in the summer of 1896, but Mrs. McClung died the following spring without having executed it. It thus appears that three years after the date of the original will, and within less than a year before her death, the testatrix manifested an abiding purpose to make the previously designated beneficiary her residuary legatee. The evidence is equally clear that the Richmond Home for Ladies is the only institution in the city of Richmond where Presbyterian ladies are cared for.

The force of the argument that testatrix could not have intended that institution as the object of her solicitude and bounty, because Methodist ladies are likewise within the provisions of the charter and cared for by the Richmond Home for Ladies, is impaired by the facts that the language of the will in that particular is not exclusive, and it is not shown that the testatrix was not apprised of the scope of the charity. Nor can

that circumstance be controlling on the question of identification, when it distinctly ap pears that the institution, in addition to providing a home for Methodist Ladies, also furnishes a home (indeed, the only home in the city of Richmond) where Presbyterian ladies, the express objects of testatrix's benefaction, are cared for.

In the case of McDonough v. Murdoch, 15 How. (U. S.) 367, 14 L. Ed. 732, a legacy was given to the city of Baltimore, to be dedi. cated to a special use, yet the court (at page 413 of 15 How. [U. S.], 14 L. Ed. 732) said: "Nor can we perceive why the designation of the particular use, if within the general objects of the corporation, can affect the result."

In the case of Roy's Ex'rs v. Rowzie, supra, the bequest was to the "Baptist Theologi cal Seminary." It was shown that there was a chartered Institution under the name of the "Southern Baptist Theological Seminary," which was the only Baptist Theological Seminary in South Carolina, and the bequest was sustained.

So, in Trustees v. Guthrie, 86 Va. 125, 10 S. E. 318, 6 L. R. A. 321, a bequest to the Secretary of the Board of Foreign Missions of the Presbyterian Church in the United States, and known as the Southern Presby terian Church, was held to be sufficiently identified by proof of the fact that there was a chartered institution in North Carolina under the name of the "Trustees of the General Assembly of the Presbyterian Church in the United States," with power to receive and administer such funds as were contributed by the church for foreign and domestic missions, and the education of ministers and the support of aged and infirm ministers.

Having reached the conclusion that the Richmond Home for Ladies has been identified as the object of the testatrix's charity, we are next confronted with the question of the capacity in law of that corporation to take the bequest.

The learned commissioner has submitted with his report a valuable and instructive historical narrative of the constitutional provisions and legislative enactments on the subjects of "Religion," "Churches," "Charities," and "Schools," together with a discriminating discussion of decisions of this court in point, from the foundation of the commonwealth to the present time.

His review includes, among others, the leading cases of Gallego's Ex'rs v. Attorney General, 3 Leigh, 487 (decided in 1832), where it was held that a bequest to the Roman Catholic Congregation at Richmond was void for uncertainty; Protestant Episcopal Education Society of Virginia v. Churchman's Representatives, 80 Va. 718 (decided in 1885), sustaining a bequest to the trustees of the "Protestant Episcopal Society of Virginia," incorporat ed, to be used excluisvely for educating poor young men for the Episcopal ministry; Trus tees, etc., v. Guthrie, 86 Va, 125, 10 S. E. 318,