of the real or personal estate. The Bridge street estate formed part of the rest and residue, and the title therefore vested in the executor, subject to be divested by a sale, and until a sale the rents and profits belonged to the executor as residu ary legatee: Gibson v. Farley, 16 Mass. 280; Newcomb v. Stebbins, 9 Met. 540; Almy v. Crapo, 100 Mass. 218; Brooks v. Jackson, 125 Mass. 307, 310.

The effect of the residuary clause was not to vest in the executor first the power to sell to create a fund for the payment of debts and legacies, and then to give him what might remain; but it was to vest in him individually the title to the residue, with authority as executor to sell any or all of the estate, and apply it to the payment of debts and legacies: Brooks v. Jackson, 125 Mass. 307, 310.

Upon discovering that he had mistakenly charged himself in his first account with the rents of the Bridge street estate he was entitled to have the error corrected. He will be presumed to have been in possession as devisee, and not as executor, and there is nothing in the fact that he included the rents in his account as executor to estop him from showing that it was a mistake: Newcomb v. Stebbins, 9 Met. 540. Decree affirmed.

DEVISE SUBJECT TO CHARGE.-When a devise of land is accepted, a portion of which is subject to a charge, the whole is liable in case of a deficiency: Ruston v. Ruston, 2 Dall. 243; 2 Yeates, 60; 1 Am. Dec. 283, and note. A husband who succeeds to his wife's real estate under her will takes title thereto subject to its obligation to be applied to the payment of her debts: Smith v. Seaton, 117 Pa. St. 382; 2 Am. St. Rep. 668, and note.

EXECUTORS AND ADMINISTRATORS-RIGHTS OF.-Where an administrator has sold the part of the real estate to which he was entitled as one of the heirs, the orphan's court should not order the part so conveyed by him to be sold for the payment of a debt due to him for advances made to the estate: Liddel v. McVickar, 6 Halst. 44; 19 Am. Dec. 369.

DOYLE v. FITCHBURG RAILROAD COMPANY.

[162 MASSACHUSETTS, 66.]

MASTER AND SERVANT-EMPLOYEE WHEN NOT IN SERVICE OF HIS EMPLOYER.-If a railroad corporation furnishes its employees with a pass upon which they are entitled to ride to and from their homes without compensation, they are not, while so riding and not engaged in any business of their employer, to be regarded as in the service of the corporation, so that compensation can be recovered for their death fron the negligence of the corporation or its employees, under a statute providing that, if, by reason of the negligence of a corporation operating a railroad, or of the unfitness, or gross negligence, or carelessness of its servants while engaged in its business, the life of a passenger, or of a person being in the exercise of due diligence and not a passenger, or in the employment of such corporation, is lost, the corporation shall be punished in a sum designated in the statute. RAILWAY CORPorations—Passenger, Who 18.-One to whom, while in the employ of a railway corporation, a ticket or pass is issued entitling him to ride to and from his home to his place of employment, must be regarded as a passenger for whose death from negligence the corpora tion is answerable, if he was entitled to ride on such pass more times than is necessary in traveling to and from his work, and at the time of his injury he was not engaged in any business of the corporation, if such pass was not a mere gratuity, but furnished part of the consid. eration which induced him to enter the employment of the corporation. RAILWAY CORPORATIONS-RELEASE FROM LIABILITY.-If a statute makes the killing of a passenger of a railway corporation through gross neg. ligence punishable by a penalty payable to the widow and children or next of kin, such passenger cannot release the corporation from liabil ity, and therefore his agreement to do so cannot bar an action brought for his death by an administrator for the benefit of the persons entitled to the penalty.

TORT to recover damages for the death of Cornelius J. Doyle. The answer consisted of a general denial and an allegation that deceased was riding on the train of the defendant under an express contract and agreement by which he released the defendant from all liability on account of alleged injuries. The evidence tended to show that the deceased for about a year and a half prior to his death had been employed by the defendant as a clerk in its freight department at Boston. His employment was not for any stated period, and might have been terminated either by himself or the defendant at any time. His wages were fixed at a daily rate. He lived with his father in Waltham, and usually traveled each morning and evening to and from Boston on defendant's trains. His work closed each evening at 6 o'clock and began each morning at 7. Between those hours he performed no services for the defendant. It was a well

known and uniform custom for the defendant to furnish its employees who lived outside of Boston on the line of its road with a ticket. The only compensation for such ticket was that the person receiving it should perform services in accord with the terms of his employment, and the rate of wages paid to employees who lived in Boston and did not use such a ticket was no greater than those living elsewhere and furnished with tickets. The tickets were furnished monthly, and each had sixty-two numbers to be punched, and was good for sixty-two rides during the month for which it was issued, and might be used by an employee whether he was going to and from his work or not. The face of the ticket was as follows:

"No. 464.

"FITCHBURG RAILROAD EMPLOYEE'S MONTHLY TICKET. (Not Transferable.)

"Pass C. J. Doyle, S. F. D., between Boston and Waltham, during the month of September, 1892, unless otherwise ordered. Not good unless countersigned by L. W. Bartlett. "Sept. 1, 1892. JOHN ADAMS, Gen'l Supt. "Countersigned, L. W. BARTLETT."

On the back of the ticket the following was printed: "The person accepting this free ticket thereby and in consideration thereof assumes all risk of accidents, and expressly agrees that the company is not a common carrier in respect to him, and shall not be liable under any circumstances, whether of negligence of its agents or otherwise, for injury to the person, or for loss or injury to the property of the passenger using this ticket." On Saturday evening the defendant went as usual to his home at Waltham, but after supper returned to Boston over defendant's road on a business or pleasure trip of his own, in no way connected with the defend. ant. A little after 10 o'clock, on the same night, he entered a car of the defendant at Boston to return to Waltham. While on his return trip he was killed by a collision caused by the gross negligence of the defendant's engineer. The trial judge refused a request of the defendant to rule that the plaintiff could not recover, but, on the contrary, decided that there was sufficient evidence to support the plaintiff's action. The defendant alleged exceptions.

G. A. Torrey, for the defendant.
G. L. Mayberry, for the plaintiff.

69 MORTON, J. It is conceded that the death of the plaintiff's intestate was due to the gross negligence of an engineer in the employ of the defendant. The defense rests on two propositions: 1. That the plaintiff's intestate was not a pas senger, but an employee; 2. If that is not so, that the defendant is not liable by reason of the conditions on the back of the ticket.

...

The statute is as follows: "If by reason of the negligence ... of a corporation operating a railroad, ... or of the unfitness or gross negligence or carelessness of its servants, while engaged in its business, the life of a passenger, or of a person being in the exercise of due diligence and not a passenger, or in the employment of such corporation, is lost, the corporation shall be punished," etc: Pub. Stats., c. 112, sec. 212. We do not think that at the time of the injury the plaintiff's intestate was "in the employment" of the defendant within the meaning of the statute. The defendant was not transporting him to or from the place of his daily labor, pursuant to the arrangement which existed between them. It had no control or authority over him. He was not traveling on any service for it. His time was his own, and the defendant was not paying him for it, and he could use it as he saw fit, and he was passing over the defendant's road entirely for his own business or pleasure. 70 So long as he was working from day to day for the defendant, it might be said, in a popular sense, that he was in its employ. ment. But we do not think that is the sense in which the words are used in the statute. Otherwise, if at any time, under any circumstances, passing over the railroad on a highway crossing on Sunday, for instance, on an errand to get a doctor for his father or a friend, he was injured by the gross negligence of the defendant's servants while engaged in its business, he would have no right of recovery. Nothing but the plainest language would warrant such a construction.

Was he a passenger? This question is a more difficult one, and there is force in the argument that to hold that he was a passenger would subject the defendant to a higher degree of care toward him when traveling on its road on his own pleasure than when traveling pursuant to some purpose connected with his service as an employee. Nevertheless, we think that he must be regarded as having been a passenger. It is clear that a person may at one time be an

AM. ST. REP., VOL. XLIV.-22

employee when passing over a railroad, and at another time in passing over the same road be a passenger, though continuing all the while, in a popular sense, in the employment of the railroad company. The ticket on which the plaintiff's intestate was riding was not a mere gratuity. It furnished part of the consideration by which he was induced to enter the employment of the defendant. A ticket was given to him each month, and it contained more rides than were necessary in traveling to and from his work. It is expressly conceded that persons holding these tickets could use them for their own private interest or pleasure; and we think the result must be that the plaintiff's intestate held toward the defendant the relation of a passenger at the time when he was injured. The cases to which the defendant has referred us are distinguishable from this. Those in this state were where the plaintiff was being transported in immediate connection with his employment: Gillshannon v. Stony Brook R. R. Corp., 10 Cush. 228; Seaver v. Boston & Maine R. R.Co., 14 Gray, 466; Gilman v. Eastern R. R. Corp., 10 Allen, 233; 87 Am. Dec. 235; O'Brien v. Boston & Albany R. R. Co., 138 Mass. 387; 52 Am. Rep. 279. In the cases in other states the circumstances under which the injuries occurred were such that the plaintiff could at the time fairly be said to be in the 71 employ of the defendant: Russell v. Hudson River R. R. Co., 17 N. Y. 134; Vick v New York Cent. etc. R. R. Co., 95 N. Y. 267; 47 Am. Rep. 36; Abend v. Terre Haute etc. Ry. Co., 17 Am. & Eng. R. R. Cas. 614; International etc. Ry. Co. v. Ryan, 82 Tex. 565; Kansas City etc. R. R. Co. v. Phillips, 98 Ala. 159; Parkinson Sugar Co. v. Riley, 50 Kan. 401; 34 Am. St. Rep. 123; Evansville etc. R. R. Co. v. Maddux, 134 Ind. 571; Manville v. Cleveland etc. R. R. Co., 11 Ohio St. 417; O'Connell v. Baltimore etc. R. R. Co., 20 Md. 212; 83 Am. Dec. 549; Hutchinson v. York etc. Ry. Co., 5 Ex. 343; Tunney v. Midland Ry. Co., L. R. 1 Com. P. 291.

In considering the contract on the back of the ticket, the fact that the statute is a penal one must also be borne in mind. The word "damages" is not used in a strictly legal sense: Sackett v. Ruder, 152 Mass. 397, 403. Damages are to be assessed not less and not more than a certain amount, and with reference to the degree of culpability of the corporation, its servants or, agents. Originally the remedy was by indictment. Afterward it was extended to an action of tort: Stats. 1871, c. 381, sec. 49; Stats. 1874, c. 372, sec. 163;