of all the bequests. Thus, should a person mentioned as legatee die
before the testator, the legacy would be invalid. But many or all of
the states have provided by statute for the continuation of these in
many cases. Thus, should a son, to whom his father has devised some
land, die leaving children, they take it in place of their father.
These statutes vary much, some limiting the substitution to the
lineal heirs of the deceased, son, grandson, etc., others extending
the substitutes to the collateral heirs of any devisee or legatee.
Again, by statute and common law a wife is entitled on the death of
her husband to a specific portion of his property. Should he not give
her as much by his will, unless he had made an agreement with her
before marriage with respect to what she was to receive, she may
renounce her rights under her husband's will and claim what the law
would give her as if he had made no will.
A will can be revoked any time. The common way is to destroy it.
Another way is to dispose during his lifetime of his property. In one
of the cases a testator had indorsed on his will in his own
handwriting "canceled." Though this was not signed, it was held to be
a revocation. In another case a blind testator called for his will
which was handed to him. He gave it back with the direction to put it
in the fire. Instead of doing so another piece of paper was
substituted and burned. This was a downright fraud, and the court
justly held that the will had been revoked.
=Workmen's Compensation Acts.=--Who is entitled to compensation by
these acts? The proper test to apply is, whether the employer
possessed the power to control the other while at work at the machine
or other thing from which the injury arose. Says Honnold: "In the
ordinary acceptance of the term, one who is engaged to render services
in a particular transaction is not an employee; the term employee
embracing continuity of service and excluding those employed for a
single and special transaction. It does not usually include
physicians, pastors or professional nurses. It may, however, include
those not engaged in manual labor, such as a school-teacher. The fact
that a workman furnishes tools and materials, or undertakes to do a
specified job will not prevent his being an employee. A deaconess,
living and working in a hospital and receiving an annuity to cover
clothing and expenses, is not an employee of the hospital," nor is an
employee of a religious home for the aged who works around the house
for which he is not paid any fixed amount. A director of a bank is not
an employee within the meaning of the acts under consideration.
To be an employee there must be a contract of service. This is not the
same thing as a contract for services. By the latter relationship one
is an independent contractor and excluded from the acts. The contract
of service need not be actually made, it may be implied, for example,
the case of a substitute who is engaged by an employee in accordance
with custom. A contract of service is not created by the relation of
landlord and tenant, carrier and passenger, bailor and bailee, nor by
professional service, nor by forming a partnership, nor by performing
manual labor beyond the employer's control. Whether a contract of
service arises from charitable work depends on the circumstances of
the particular case. State employees are within these acts in some
states, and excluded in others, likewise municipal employees. By the
federal act the term "laborer" is used to designate men who do work
that requires but little skill as distinguished from an artisan who
practices an industrial art. The act includes a storekeeper, an
inspector who performs no manual labor, a messenger in the government
printing office, the master of a dredge, the matron of an Indian
school, a transit man, a surveyor, a clerk engaged in office work, an
assistant veterinarian, a laboratory assistant, a dock master.
Compensation legislation is not limited to healthy employees. One's
previous physical condition is of no consequence in determining the
amount of relief to be afforded. Nevertheless, it is a circumstance to
be considered in ascertaining, when one has been injured, whether the
injury resulted from the work or from his health.
In some of the compensation acts minors are excluded, in other acts he
is protected by them. An apprentice who is qualifying himself to
operate an elevator is an employee within the Minnesota Act. Many of
the acts provide that the term employee shall include every person in
the service of another under any contract of hire, except one whose
employment is casual, or is not in the usual course of the trade,
business profession or occupation of his employer.
Farm laborers are outside these acts in some states. Thus, in
Massachusetts "the workmen's compensation act was not intended to
confer its advantages upon farm laborers, or to impose its burdens
upon farmers." But a farmer may adopt it if he desires. And any
contract of insurance made by him under its terms is valid and
enforceable. Such an exemption, however, does not except employees
working for one who is engaged in a commercial or other
non-agricultural enterprise though he be a farmer. Likewise, a farmer
carrying on a market garden may procure insurance covering his drivers
and helpers employed in distributing the produce of his farm without
insuring other employees who are merely farm laborers. The right to
compensation is determined by the character of the labor one is
actually doing when the accident occurs, rather than by the fact that
the employee occasionally does farm labor. Thus, plowing is usually
farm labor, but if it is done to make land ready for building a house
it is not. If a farmer does not avail himself of the act for all of
his employees, he may procure insurance for a limited portion of them.
"If there are those," says Chief Justice Rugg, "separable from others
by classification and definition, whose labor is more exposed and
dangerous, or whom he may desire to protect for any other reason,
there is nothing in the act to prevent him from doing so."
Likewise, domestic servants are excluded by some of these acts, who
are they? "A household servant is one who dwells under the same roof
with the family under circumstances making him a member thereof." And
his status is determined rather by his relation to the family than by
his relation to the service. Thus, a workman who is hired to tend the
furnace, mow the lawn, and do odd jobs about the house, who has a room
therein and eats at the family table, is a household servant. On the
other hand, a chauffeur who is hired by the month to run the
employer's private automobile, but is not living as a member of the
family, is not a household servant. In many cases, however, he is one.
While it is doubtful whether the test of living in the employer's
house is the sole test of household service, it is essential that he
is engaged in rendering service in the house, such as cleaning,
cooking or washing. On one occasion, a porter in a saloon was sent
upstairs by the proprietor to wash the windows in the apartment where
the proprietor lived with his family. While thus engaged he fell to
the sidewalk and was injured. The court regarded him as a household
servant.
Many of the acts exclude from their protection casual employees. This
term is a difficult one to define, and has been omitted in many of the
acts. Where this is done all employees engaged in the usual course of
the trade, business, occupation, or profession of their employer, with
some exceptions, receive compensation. Ordinarily, an employment is
casual when it is for a single day, or by the hour, but does not apply
to one who is employed to render a service that recurs with some
regularity. Thus, one who is employed as a workman in a sawmill on
such days as it was in operation for four months was not a casual
employee. Casual employment in the Connecticut act means occasional or
incidental employment. In California, if the length of employment is
less than a week it is casual, even though contrary to agreement the
employee took more than a week to do the work for which he was hired,
and which a skillful employee could have finished within a week.
"The question whether an employment is casual must be determined with
reference to the scope and purpose of the hiring rather than with sole
regard to the duration and regularity of the service. One who enters
into a contract of employment for an entire season is not a casual
employee merely because he may be required to work for only short and
irregular periods." Thus, a longshoreman who is employed at a certain
sum per hour to help load a ship, having frequently rendered a similar
service on other occasions, is not a casual employee; nor is one who
keeps machinery and boats in order at an amusement park; nor is a boy
who is called at irregular intervals for service in a butcher's shop
when extra help is needed, or in the absence of a regular employee;
nor is one who is employed during a packing season to drive for a
packer whenever he is needed.
The compensation law does not apply to independent contractors. It is
difficult, however, to draw the line in many cases. Generally, an
independent contractor is one who exercises an independent employment
and contracts to do a piece of work according to his own method,
without being subject to the control of the employer. A test that is
sometimes applied is, who has the right to direct what shall be done
and when and how, and who has the right of general control. When,
therefore, one exercises an independent employment, selects his own
help and has the control of them, and the method of conducting the
work, he is an independent contractor. Again, he may change his
relation for a time, and become an employee, or he may be a contractor
for a part of his service and an employee for a part. Thus, one who
was injured while operating a launch to bring supplies to a dredge for
his employer was an employee and not an independent contractor, though
he was one in conducting the work of dredging. Likewise, a physician
who is employed on a salary by another physician, who in turn is
serving a manufactory, is an employee of the latter and not an
independent contractor, though he is still engaged to some extent in
his own private practice.
By the Federal act an employee must be "employed by the United States
to be entitled to its benefits." Thus, a plate printer in the bureau
of engraving and printing who is paid by the piece, and who bonds
himself and hires and pays his own help, also the owner of a power
boat chartered to the government and operated by the owner in its
service, are contractors, and not federal employees. A workman,
therefore, who is employed by a government contractor is not an
employee of the government. On the other hand, one who is employed and
carried on the pay rolls of the reclamation service, though working
for the contractor, is employed by the government, likewise, a workman
employed in the forest service who is working with others for county
supervisors who, in turn, are executing a contract with the
government.
As public officers are not employees within the meaning of the
compensation acts, they may be distinguished from others who are
employees. Unless the statute says so, a policeman is not an employee
of the city which he serves, but an officer holding a public trust. On
the other hand, a night policeman or marshal is an employee by the
Wisconsin law. Firemen and deputy sheriffs on a fee basis are officers
rather than employees.
The compensation acts secure compensation not only for injured
workmen, but should they die, to their dependents. Who then is a
dependent? "Dependency," says Honnold, "does not depend on an answer
to the question whether the alleged dependents could support
themselves without the earnings of the person who is no longer living,
but whether they were in fact supported in whole or in part by such
earnings intentionally by him. Occasional gifts do not prove
dependency, yet purely voluntary contributions may establish
dependency. Voluntary contributions of money, support or service by a
brother to a sister or by a sister to a brother are not complete
evidence of the dependency of either. Compensation cannot be awarded
to dependents who do not belong to the classes of relatives mentioned
in the statutes."
The phrase, actual dependents, means dependents in fact whether they
are wholly or partially dependent. Partial dependency, giving a right
to compensation may exist though the contributions are at irregular
intervals and of irregular amounts, and the dependent has other means
of supporting himself. An employee contributed all of his earnings to
his mother who was partially dependent on him for support. Five other
children contributed to the family fund. It was held that the mother
was entitled to a weekly compensation equal to one half of the weekly
compensation of her deceased son. A dependent who is an alien living
in a foreign country is not debarred from receiving compensation. By
some of the acts such compensation to nonresidents is limited to a
father or mother.
Children who are entitled to compensation as dependents include
stepchildren, illegitimate children, children adopted by the workman,
also posthumous, legitimate and illegitimate.
The federal act provides that if the injured artisan or laborer die
within the year after his injury "leaving a widow, or a child or
children under sixteen years of age, or a dependent parent, they shall
be entitled to compensation." The word parent, while including both
parents, does not include a stepfather or a stepmother, or a foster
parent who has not been legally adopted. The question of dependence is
one of fact; contributions by the deceased tend to establish this, but
are not conclusive. The word child or children used in the act is not
limited to a child or children born in wedlock, but includes
illegitimate offspring, and children legally adopted. If an injured
workman dies before he has made application for or received
compensation, it may be paid from the date of the injury to the date
of his death, as well as for the remainder of the year to his widow or
family.
The earnings of a workman are the basis for computing the amount of
compensation he is to receive for an injury. These include anything
that he receives for his labor that possesses a money value. In the
way of illustrating more clearly what he may receive the outline of a
section of the Massachusetts Act may be given. It provides what the
workman may receive when his injury is partial from the insurance
association which has become liable therefor. A weekly compensation
equal to one half the difference between his average weekly wages
before the injury and the average weekly wages which he is able to
earn thereafter; but not more than ten dollars a week, nor for a
longer period than three hundred weeks from the date of the injury.
Formerly, when injured, he received as compensation a sum fixed by
agreement between himself and his employer; and if they could not
agree, as often happened, then he sued his employer and the court
decided the amount the employer must pay. These suits were often
costly, long contested, and if the employee won his counsel often took
such a large share as to leave a disappointing amount to the employee.
On the other hand, many an employee magnified his injury, juries were
usually sympathetic, especially if the employer was a corporation, and
from the general dissatisfaction has been created the new system.
Having stated in the most general way what the law provides for a
workman who has been injured, there remains the statement of what is
done when the workman dies from his accident. The Arizona law
illustrates this as well as any other. When he dies within six months
thereafter and leaves a widow, and a minor child or children
dependent on his earnings for support and education, then the employer
must pay to the personal representative of the deceased workman for
the benefit of the widow and children a sum equal to twenty-four
hundred times one half of the daily wages or earnings of the deceased,
not exceeding in any case more than four thousand dollars. If the
employer has insured the lives of his employees in an insurance
company, for which the acts quite generally provide, then of course
payment of the benefits are paid by the company to those who are
entitled to them.
Some of the compensation acts provide compensation for both total and
partial incapacity resulting from injuries which do not prove fatal.
Thus the Connecticut act provides that loss of sight, the loss or
paralysis of certain physical members, and incurable imbecility or
insanity, resulting from the accident shall be "considered as causing
total incapacity." For these and all other injuries resulting in total
incapacity to work, there must be paid to the injured employee weekly,
while incapacitated, compensation equal to half of his earnings at the
time of the injury, for a maximum and minimum period. Another section
provides that in cases resulting in partial incapacity there must be
paid to the injured employee a weekly compensation during his
incapacity, equal to half the difference between his average weekly
earnings before the injury and the amount he is able to earn
thereafter with a maximum and minimum limitation of the amount within
a limited period.
Legal Forms for Everyday Use
1
Agreement for Sale of Land
This agreement, entered into this ____ day of ________, 19__, by and
between A.B. and C.D., witnesseth: That said A.B. has this day sold to
C.D. the following described tract of land, to-wit: (describe) for the
sum of $________, to be paid as hereinafter set forth, and upon the
payment of which said A.B. agrees to convey to said C.D. the premises
above described, free and clear from all incumbrances, by a deed of
general warranty.
And the said C.D. agrees to pay said A.B. for said premises the sum of
$________, as follows: $________ with interest at ____ per cent on the
____ day of ________, 19__;
The said A.B. agrees that said C.D. shall have immediate possession of
said premises for the purpose of residence, cultivation, and
improvement.
In witness whereof we have hereunto set our hands this ____ day of
________, 19__.
A.B.
C.D.
2
Agreement Concerning Party Wall
This agreement, made this ____ day of ________, 19__, by and between
A.B. and C.D., of the city of ________ ________, witnesseth: That,
whereas, the said C.D. is the owner of the house and lot on the south
side of ________ Street, second lot east of ________ Street, and the
said A.B. is the owner of the lot adjoining the same next easterly
thereof, on which said lot there now stands a party wall on a line
parallel with ________ Street; and forty-four feet easterly from said
________ Street; and, whereas, the said A.B. has erected his
dwelling-house several feet (one story) higher than the said C.D.,
whereby greater advantage may accrue to the said A.B. from said party
wall. Now, therefore, the said C.D., in consideration of the sum of
$1, to him in hand paid, the receipt whereof is hereby acknowledged,
doth grant, covenant, promise, and agree with the said A.B., that he
may peacefully and lawfully enjoy such party wall, to himself, his
heirs, and assigns, the said C.D. reserving to himself the right to
use the said portion of the party wall built by the said A.B.,
whenever he may wish to build higher than his house now is.
It is further mutually understood and agreed, between the respective
parties, that this agreement shall remain so long as the houses last,
and shall pass to the heirs and assigns of the respective parties to
these presents.
Witness our hands and seals, the day and year first above written.
A.B. (L.S.)
C.D. (L.S.)
3
Agreement for Building
This agreement, entered into this ____ day of ________, 19__, between
A.B. and C.D. witnesseth: That the said A.B. hereby agrees with the
said C.D. to erect for him on (describe land) a (dwelling-house) in
conformity with the drawing and detailed specifications of one E.F.,
architect, the work to be performed in a substantial and workmanlike
manner, and with the best materials of their respective kinds, the
same to be furnished, together with all things necessary to erect and
complete said building, at the cost and expense of the said A.B.,
payments to be made as follows: (specify terms) upon the certificate
of the architect, provided that said estimates shall not at any time
before the completion of said building exceed the basis of 85 per cent
of the value of the work so executed.
And the said C.D. hereby agrees with said A.B. to pay to him the sum
of $________ for the erection and completion of said building in the
manner aforesaid, (monthly) estimates to be made by said E.F.,
architect, of the amount then due to said A.B. thereon, upon the
presentation of which estimate said C.D. agrees to pay 85 per cent of
the same, the remaining 15 per cent to be retained until the
completion of said building. And on the completion of said work in the
manner aforesaid to the satisfaction of said architect, and upon the
presentation of his certificate to that effect, said C.D. agrees to
pay said A.B. the balance remaining unpaid on said contract, including
the fifteen per cent retained until the completion of the work. The
said A.B. further agrees to complete said building as aforesaid and
deliver the same to said C.D. on or before the ____ day of ________,
19__.
In witness whereof we have hereunto set our hands this ____ day of
________, 19__.
A.B.
C.D.
4
Claim of Lien by Workman of Sub-Contractor
A.B. to C.D., Dr.
June 1st, 19__. To twenty-five days' labor at carpenter work, at $5
per day, upon the dwelling-house situated on lot B in block 350, in
the city ________, ________ county, ________, which services were
rendered on and before the 1st day of June, 19__, and then payable.
(Signed) C.D.
5
Agreement for Work and Labor
This agreement, entered into this ____ day of ________, 19__, by and
between A.B. and C.D., witnesseth: That the said A.B. agrees
faithfully to labor for C.D. for the term of (six) months from the
first day of ________, 19__, at farm labor, on the farm of said C.D.,
in ________ county, and to perform such other services as may be
reasonable and just, for which services said C.D. agrees to pay said
A.B. the sum of $________ per month (on the ____ day of ________,
19__.)
In witness whereof we have hereunto set our hands this ____ day of
________, 19__.
A.B.
C.D.
6
Bond to Perform a Contract
Know all men by these presents, that, we A.B., as principal, and C.D.,
as surety, are held and firmly bound unto E.F., in the sum of
$________, for the payment of which well and truly to be made we bind
ourselves jointly and severally by these presents.
Dated this ____ day of ________, 19__.
Whereas, said A.B. had, by an agreement of this date, contracted in
writing with said E.F. to (here describe the contract).
Now, therefore, the condition of this obligation is such that if the
said A.B. shall do and perform all the stipulations and agreements
contained in said written contract then this obligation to be null and
void. Otherwise to remain in full force and effect.
In witness whereof we have hereunto set our hands this ____ day of
________, 19__.
A.B.
C.D.
7
Bill of Sale