To hold that the devise was to each of the eight persons and their "heirs" would destroy the express provision of "fideicomiso" or trust and leave the phrase "con calidad de fideicomiso" useless and ineffective.

It would also leave without meaning the further provision for the mutual benefit of the eight, because a person very seldom dies without "heirs" in the broad sense, and even in that event the Civil Code of Porto Rico, then in force, provided that in default of other heirs the State would inherit. War Department translation, arts. 956, 958.

It would not give due weight and meaning to the use by the testator of the word "legitimate" in connection with the word "sucesion," because in the paragraph in question the word "legitimate" would be superfluous as modifying the general term "heirs," while it becomes important as a limiting word if it modifies "issue."

That these trust provisions under the term "fideicomiso" were common in the Spanish law were recognized as valid when not creating a perpetuity and their meaning and construction well determined, see the Sentencia of the Supreme Court of Spain in Moya v. Moya, April 22, 1865, Juris. Civ., vol. 11, p. 534.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill for the partition of real estate in which the female plaintiff claims one undivided eighth as heir to her daughter Felipa Benicia, who died an infant without issue. This dighter got her title under the will of Thomas José Ramirez, and the question is whether, in the event which happened, her share went to her mother by descent or to her fellow devisees by the terms of the will. The other devisees all were living at her death. The case was heard upon a plea setting up the foregoing facts, together with the will, and the bill was dismissed. Thereupon the plaintiffs appealed to this

court.

The material clause of the will is as follows: "Trece.-Et remanente de mis bienes, derechos y acciones lo lego con calidad de fideicomiso y que acrezcan las demas, caso de fallecimiento sin sucesion legitima, por iguales partes, a mis sobrinas Doña Cornelia y Doña Antonia Martinez, Doña Monserrate, Doña Obdulia, Doña Encarnacion, Doña Angela y Doña Concesion Ramirez de Arellano y Felipa Benicia mi hija de crianza,” etc. We vary slightly the translation in the record. "The remainder of my goods, rights and actions I bequeath in the character of fideicommissum and that the other [shares] may [profit by] accretion, in case of death without sucesion legitima, by equal parts to my nieces [named] and Felipa Benicia my foster child, who shall adopt my surname," with appointment of a guardian for the last, a provision for her education, and a request that when that is finished she return to live with the said nieces.

It is agreed that it is possible for "sucesion legitima" to mean either issue or lawful heirs. If it means the latter, the mother inherited, as she was the lawful heir. If it means the former, then, by the terms of the will, Felipa Benicia's share went to the testator's nieces when she died. It seems to us too plain to need extended elucidation that "sucesion legitima" here means issue. The argument on the other side that the purpose is merely to prevent an escheat by making the nieces and Filipa Benicia reciprocal successors, to impose a fetter on free alienation and to enhance the dowry of the nieces, strikes us as fanciful. The natural object of this fideicommissary substitution is that which is said to be its object, to secure accretion among the shares. But that purpose would pretty nearly vanish into thin air if death without heirs were the event in view. For each of the nieces being heir to all the others, accretion among them would be excluded. It is argued, to be sure, that they might repudiate the inheritance and then claim under the will, if any of the nieces died heavily in debt. Whether this would be true by Spanish law we need not inquire. For such remote explanations must be rejected when

the will offers a different and more obvious one upon its face. And while it is pressed that substitutions are strictly construed in favor of the first taker, we do not understand that or any other rule of construction to require a perversion of language, or to govern a case where the second taker stands on an equal footing with the first in the testator's mind, with equal mutual chances, and when the plainly expressed purpose is to create an artificial class, with cross limitations in case of death without a child.

A suggestion is made by an afterthought, in a brief filed since the argument, that the testator could not exclude the mother of Felipa from her right, as necessary or forced heir, to two-thirds of Felipa's share. The suggestion comes too late. No such claim was set up in the bill, or, so far as appears, in the court below. Therefore we shall not consider at length whether, in case of a pure gratuity to one to whom the testator was under no legal obligation, the Spanish law entitled a forced heir to claim against the words of a gift like this. The texts cited are not sufficient to establish the proposition, and the contrary seems to be shown by Ley 10, Tit. 4, Part. 6, and note 13, Madrid ed. 1848. See also 4 Escriche, 1051, 1052, sub. v. Substitucion Fideicomisaria, ad fin. On the whole case the plaintiffs must abide by the construction and the law in which, it would seem from the bill, they have acquiesced for thirty years.

Decree affirmed.

Argument for Petitioner.

201 U. S.

THE WILDCROFT.1

CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 127. Argued December 12, 13, 1905.-Decided April 2, 1906.

The relief afforded by § 3 of the Harter act, 27 Stat. 445, to shipowners is purely statutory and in order for a shipowner to avail of the exemptions from liability for errors of management or navigation the burden is on him to prove affirmatively, in all cases, and not only in those where there is conflicting testimony, that the vessel was seaworthy at the beginning of the voyage or that due diligence had been used to make her so. The discharge of the duty of the shipowner in this respect is not left in the absence of proof to any presumption.

Findings of fact by both the District Court and the Circuit Court of Appeals as to seaworthiness of a vessel at, and due diligence used prior to, the commencement of the voyage will not ordinarily be disturbed by this court and so held in this case.

THE facts are stated in the opinion.

Mr. Horace L. Cheyney, with whom Mr. John F. Lewis was on the brief, for petitioner:

Prior to the passage of the Harter act the law was firmly established that the burden was upon the carrier to show affirmatively that the damage was occasioned by one of the perils from which he was validly exempted by the bill of lading. Clark v. Barnwell, 12 How. 272; Hutchinson on Carriers, 2d ed., § 765.

The Harter act has made no change in this rule. The claimant is exempted from liability for loss occurring by "perils of the sea," both by the provisions of the Harter act, and those of the bill of lading. Of course, the burden of proof is the same as to such perils, whether he defends on the ground of the exemption in the bill of lading or under the Harter act. The rule is likewise applicable to the other statutory exemp

1 Docket Title W. J. McCahan Sugar Refining Company v. Steamship Wildcroft.

201 U. S.

Argument for Petitioner.

tions in the Harter act. The purpose of that act was not to change in any way the burden of proof, but to specifically define what contractual exceptions might be made lawfully and to provide certain additional statutory ones.

The burden of proof as to the exercise of due diligence by the shipowner to make the ship in all respects seaworthy rests on the owner claiming exemption and this. rule is unchanged by the Harter act. The Silvia, 171 U. S. 462; The Southwark, 191 U. S. 1; The Manitou, 127 Fed. Rep. 554; The Edwin I. Morrison, 153 U. S. 199; Farr & Bailey Mfg. Co. v. International Navigation Co., 181 U. S. 218.

This court in Farr v. Int. Nav. Co., supra, and The Southwark, supra, did not find that the burden of proof on the shipowner to show due diligence on his part to make the ship seaworthy was met by this presumption of seaworthiness, but held the ships liable in each case because their owners did not meet the burden of proof by affirmative evidence showing that they had used due diligence to make the vessels seaworthy. The Chattahoochee, 173 U. S. 540, distinguished. That was a collision case, in which the injury resulted solely from faults or errors of navigation, and the question of the seaworthiness of the vessel was not in issue and was in no wise connected with the collision.

There was no evidence whatever proving that the valves were open or that the accident was caused by an error or fault of navigation. The claimants' witnesses were not asked directly as to their personal knowledge. Their evidence therefore is merely indirect and does not fall in the class of circumstantial evidence and is entitled to no weight and raises the presumption that the facts, if brought out, would have been prejudicial. 2 Evans' Pothier, 149, quoted in Clifton v. United States, 4 How. 240; Kirby v. Talmadge, 160 U. S. 379. As to the value of testimony as to inspections by ship's officers, see The Manitou, 116 Fed. Rep. 160; The Aggi, 93 Fed. Rep. 484.

Section 3 of the Harter act should be liberally construed