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is done by a next friend to prejudice or injure such interests, it devolves on the court in this case to determine whether or not under existing conditions the next friend should be permitted to proceed with this appeal. In considering this question, the court assumes and acts upon the assumption that the next friend is acting in good faith; that he is not a mere volunteer, but is acting at the request of the maternal grandmother, who is the only relative of the infant who would probably make the request, the mother being restrained by a substantial devise under the will, and upon the assumption, further, that the next friend and his counsel, under existing conditions, would not institute this proceeding without evidence sufficient to make out a prima facie case which would authorize a submission of the question of will or no will to a jury. This, however, does not go far enough to secure the substantial rights of the infant. Such evidence as the appellant has of course is to be sifted by cross-examination; it is presumably to be met by conflicting and Countervailing evidence; it may fairly be said that there is no character of litigation where there is more latitude permitted in the evidence than in the trial of a will case. “In determining the course to be pursued here, the court is called upon to consider the infant's property rights under the will; what would result if the will should be contested to the end and finally upheld, and what those rights will be if the will should be broken. Under the will, as will be seen by an analysis of clause 13, one undivided half of the estate, after paying the specific devises, is given in trust for the benefit of Lucy Elizabeth for and during her natural life subject to the following limitations, so much of the income from said portion as may be necessary shall be used by the trustee under the direction of said committee for the proper and liberal support of my said granddaughter and her family should she have one. I direct that the income from this portion not devoted to the support of my granddaughter as aforesaid shall be accumulated by the trustee and held as the property and estate of my said granddaughter until such accumulations shall have reached the amount of two hundred thousand dollars; when my granddaughter arrives at the age of twenty-five years said two hundred thousand dollars shall be paid to her as her absolute estate, but in the event the accumulations do not amount to such sum at said time, then the trustee shall continue to apply the surplus income as aforesaid until said amount shall have been accumulated at which time it shall be paid to her. So long as my granddaughter lives she shall receive such portion of the income of this trust as is required for her liberal support and that of her family, if any, as hereinbefore provided. Should my said granddaughter die at any time leaving issue surviving her the trust shall continue until the youngest of such issue living at her death attains the age of 21 years and so much of the income from this portion of my estate as the committee may deem proper shall be used by the trustee for support and education of such issue until the time above designated when this trust shall cease, and the principal and accumulated income of this share of my estate shall be distributed per stirpes among such issue.” Thus, it will be seen that Lucy Elizabeth is to have proper and liberal support from the income of one-half of this large sum; that she is to have $200,000 when she arrives at the age of 25; that her family, if she has a family, shall always receive such liberal support, and if she leaves issue at her death, when the youngest of such issue shall attain the age of 21 years, the trust shall terminate, and the whole share, together with the accumulated income, shall go to Such child or children as she may have. The court cannot contemplate that the trustee under the advice and direction of the committee will be meager in furnishing

What the testator denominates proper and liberal, support for Lucy Elizabeth, or for her family, if she have one; but if such disposition should be manifested by the trustee, the chancellor has power to direct and control such allowance. f the will should be set aside and held for naught, the guardian of Lucy Elizabeth would acquire at once the possession of the one undivided half of the estate, aggregating doubtless $1,250,000, and perhaps more; and when she arrives at the age of 21, this fortune would come into her hands. “The difficult question, and the controlling question with this court is: What would be the result if the court should sanction the action of the next friend and permit a contest of the will, having in mind, the forfeiture clause contained in clause 17, which is in these words: “If any person receiving any benefit under this will shall directly or indirectly resist its probate or seek in any way to contest it, or vacate or annul any of its provisions, then in any such eWent the person So doing or for whom any one authorized by law to act shall do so, shall forfeit all interest in my estate under this will or otherwise, and my estate shall be distributed under this will as though such person had died # me, leaving no issue surviving him or ler. [1] As stated, the difficult and controlling question before the lower court, as here, in determining Whether upon these facts the court, in the exercise of a proper discretion, should have permitted the next friend to proceed with the contest of the Will, depends upOn the effect of the contest forfeiture clause, because, if this clause is void, as the infant as Contended by counsel for appellant, she has a chance of greatly augmenting her share in the large estate of decedent, if successful in setting aside the will, and can lose nothing but the costs, a mere trifle in a game for such stakes, if she fails in the effort, and the contest in no Wise endangers any material interest of hers, and should not have been forbidden by the court; but if, upon the other hand, the forfeiture clause is Valid, as contended by appellees, the Very Substantial interests the infant receives under the will are staked against the outcome of the contest, and while, if successful, the gain Would be very large, yet, if unsucCessful, the loss to the infant would be SO disastrous that a court, intrusted with the power and discretion of deciding for the infant Whether She should take Such chances, certainly could not be accused of an abuse Of Such power and discretion in refusing to permit the infant by a next friend to participate in Such a hazardous game of Chance, for Such it Would be, despite the contention of learned counsel that, in this particular case, there is no chance to lose, because of the extreme age of the testator and the proof they can produce Of his physical infirmities and lack of mental capacity, as this court knows judicially there is always a chance to lose in any kind of a lawsuit and especially is this true in a contest Of this character. So that, to determine whether or not the court abused its discretion, we will inquire into, although we need not adjudge, the effect of the forfeiture clause in the Will, unless it is absolutely Void. The question has never been decided in

this jurisdiction, although in two cases in which Wills containing Such clauses Were construed by this court (Lee V. Colston, 5 T. B. Mon. 246, and Hoskins v. Arterburn, 13 Ky. Op. 615) are found expressions possibly indicative of the court's Opinion about the effect and validity of such clauses, but, if so, not entirely harmonious; and it cannot be said that by either or both of these cases any definite rule was adopted, but it was indicated in both that Such a clause is not Void. The question, however, has been frequently considered in other jurisdictions, but unfortunately, there is much diversity in the conclusions reached, and authority is found for each of the following constructions, where there is a gift over to another of personal property; and, as Such are the conditions here, a consideration of any poSsible qualifying effect upon the validity of such a clause is unnecessary where there is no gift over Or Where real estate is devised. First. That the testator has the absolute right to prescribe the conditions upon which his bounty must be accepted, and that a noncontest clause in a Will is therefore binding and valid and contravenes no public policy. 2 Williams on Executors, 7 Am. Ed. 1138; Roper on Legacies, 2 Am. Ed. p. 795; 2 Jar on Wills, 5 Am. Ed. p. 581; Cooke v. Turner, 15 B. M. & W. 727, 14 Simons, 493; Smithsonian Institute V. Meech, 169 U. S. 398, 18 Sup. Ct. 396, 42 L. Ed. 793; Bradford V. Bradford, 19 Ohio St. 546, 2 Am. Rep. 419; Hoit v. Hoit, 42 N. J. Eq. 388, 7 Atl. 856, 59 Am. Rep. 43; Donegan v. Wade, 70 Ala. 501; Sackett v. Mallory, 1 Metc. (Mass.) 355; Hite's Estate, 155 Cal. 436, 101 Pac. 443, 21 L. R. A. (N. S.) 953, 17 Ann. Cas. 993; Miller's Estate, 156 Cal. 119, 103 Pac. 842, 23 L. R. A. (N.S.) 868; Moran v. Moran, 144 Iowa, 451, 123 N. W. 202, 30 L. R. A. (N. S.) 898; Massie v. Massie, 54 Tex. Civ. App. 617, 118 S. W. 219. Second. That such a noncontest provision is not obligatory, as against public policies, if there exists probabilis causa litigandi. In re Friend, 209 Pa. 442, 58 Atl. 853, 68 L. R. A. 447; South Norwalk Trust Co. v. St. John (Conn.) 101 Atl. 961; Jackson v. Westerfield, 61 How. Prac. (N. Y.) 399; Bryant v. Thompson, 59 Hun, 545, 14 N. Y. Supp. 28; Page On Wills, § 683. It seems that at least the greater number of authorities Support the first of these propositions, but, as heretofore stated, it is not necessary to a decision of this Case that We adopt either View, Since, under the first there could be no serious contention that the court abused a sound judicial discretion in preventing the infant devisee, by a next friend, from Staking her bequest upon the chance of a favorable decision of a contest, especially since she will have ample time after attaining her majority to decide that question for herself; and, if We should accept the latter View, as We are

though they agree the clause is absolutely void, we think, under the peculiar facts of this case, the decision of the lower court Was equally an exercise of a sound judicial discretion, Since the infant will be of lawful age in about 2% years, about a year and a half before the expiration of her right to contest the will, when she can for herself determine the question of taking the chance Of being able to establish the probable cause requisite under the latter view to prevent a forfeiture, for, under that view of the effect Of the noncontest clause, the question of probable cause must be encountered eventually, if the will is upheld, and cannot be determined in this action SO as to preclude the corporation not now, but hereafter, to be organized, and hence not a party to this litigation, from insisting upon a forfeiture by appellant, and its right under the gift over to what is given under the will to appellant and her descendants. Under such circumstances, and under any view of such a contest clause, except that it is absolutely void, it seems to us there was lacking any reason why the court, in the exercise of a sound judicial discretion, should have made so important election for the infant, when that election can be left to be made by her after reaching her majority Without risk of any kind except that witnesses may die or their memory of essential facts become dimmed in the 21% years before She can make the decision for herself, a risk that affects alike all interested parties and is insignificant as compared With the risk inCident to the COInteSt. [2] It, therefore, follows that the lower Court did not abuse a Sound discretion in the judgment appealed from, unless the noncontest clause is absolutely void, and there is no authority Whatever to that effect when there is a gift over, as here, from any court of last resort Or text-book, as far as We knoW, and but one case reported from an intermediate court, Bryant V. Thompson, 59 Hun, 545, 14 N. Y. Supp. 28, in which, although admitting the validity of such a clause against adults, it is held to be Void as to infants, “as against public policy, because seeking to deprive the courts of the powers and duties imposed on them by law for the protection, of infants.” We Would not care to dispute the proposition that such a clause was invalid as against public policy if it did in truth tend even in the slightest degree to deprive the courts of the powers and duties imposed upon them by law for the protection of infants, or if it could stay or trammel the courts in the exercise of their judicial functions, but that Such a clause does not and Cannot have any Such purpose Or effect is, it seems to us, too clear for argument, although Such a clause unquestionably may, in the CaSe Of infantS, require Of the Court an exercise of judicial discretion to safeguard their interests, but this is not unusual or against so far as we know, that a sound public policy demands that infants shall not be bound by the courts' discretion whenever required and exercised in their behalf. It is, upon the other hand, most necessary and in accord With public policy that an infant shall be thus bound, for otherwise of what avail the suit? The very purpose of an action by a next friend, Where there is no guardian or he refuses to sue, is to test the infant’s rights and to have them conclusively determined as to every person, adult, and infant alike Who is a party to the action; and the reason for intrusting the power to, and imposing the duty upon, the court to control the action Of a next friend is that in the action. Where the infant's rights will be concluded, no unwise and dangerous risks may be incurred. The court's discretionary control of the next friend arises out of the very fact that the infant will be bound by the result, and eXCept for Which fact there Would be no necessity therefor, so far as the infant is concerned. And does not the conclusion reached in the Bryant V. Thompson Case, instead of protecting the Courts in the exercise of the duties and powers imposed upon them by laW, rather Shift from the courts to the next friend the responsibility of deciding what is best for the infant, denying to the court either power or duty of control, but claiming immunity for the infant from the legal consequences of what the next friend, thus freed of judicial control, has done in the infant's name and behalf in a civil action? It has always been the policy of the law to exempt infants from responsibility for their OWn acts as necessary for the proper protection of their rights, but it would certainly present an anomaly to exempt them from responsibility also for the acts of those legally constituted to act for them. It is also of interest to know, while not indicative possibly of the court's view upon the question here involved, that upon appeal by the executors in the Bryant v. Thompson Case to the court of last resort the appeal was dismissed by an almost equally divided court upon the ground that the real parties in interest had not appealed, and the question involved Was of Such great interest and importance that it ought not to be passed upon by that Court until brought there by some party having an actual and practical, as distinguished from a mere theoretical, interest in the controversy. Bryant v. Thompson, 128 N. Y. 426, 28 N. E. 522, 13 L. R. A. 745. [3] It is easy to underStand how it can be argued, Whatever the real merits Of Such an argument, that a noncontest clause infringes public policy unless an investigation upon probable cause and in good faith may be had to ascertain whether or not the instrument is in fact the will of the deceased, but it is not so easy to comprehend the argument that to ascertain Whether or not a conditional devise is against public policy it must first

be learned Who is affected thereby, and that a testator because of good morals or a sound public policy may attach a condition to a gift to his adult child that he may not attach to a gift by the same instrument to his infant child. If Such should be declared to be the law, no person, no matter how perfect his mind, could prevent a contest of his will by the ObjectS Of his bounty, Some Of Whom were infants, no matter how Sound his reasons for so desiring might be considered, if some next friend regarded the provision made for the infant unfair Or a proVision for the infant's issue unwise; and the practical result Of Such a decision WOuld be that a perSOn Without infant dependents could exercise a control over the disposition of his property that another With Such dependents could not. The rule is univerSal that infantS are b0 und, just as adults are bound, by judgments in actions prosecuted in their names and for their Supposed benefit in the manner prescribed by law, even though the result might prove the action unwise and not for their good, and we cannot believe that public policy demands they shall not be responsible likewise for the legal consequences of such actions. We are COnVinced that Whatever the true doctrine With reference to such clauses, it must apply alike to all. [4] And While under other circumstances than those present in this case, the court may be required to make an examination Of the evidence upon Which the next friend is proceeding in order that it may determine for the infants’ protection and welfare Whether a contest is advisable, upon the facts admitted here it seems to us there is no reason to doubt the Wisdom of the court's refusal t0 permit the next friend to make SO Vital election for the infant in Order that the infant may, within so short a time and When of legal age, make that election for herself; hence there Was no necessity for the Court’s examination of the testimony available to appellant upon the question of probable CauSe. We do not deem it necessary to discuss at length the starvation theory, nor the difference in the taxes due the State from the decedent's estate under the Will and Without it, advanced by counsel for appellant, because neither, in Our judgment, are of weight in determining the validity of such a clause. The former might, Of course, render necessary an immediate election by the court for the infant whether to contest or accept the will, where there was danger of the infant Starving Or being improperly cared for pending the time when he could elect for himself, but that is its only force, and not of applicability here; While the fact that a provision of the will for a charitable cause lessens the amount of inheritance tax due the State is manifestly but the result of a statutory declaration of public policy to exempt such funds from taxation, and certainly affords no reason either for or against the Validity of the noncontest clause in the will, or the wisdom of a contest by the infant. Since the above Was prepared, Our attention has been called by counsel for appellant to the case of Rouse V. Branch, 91 S. C. 111, 74 S. E. 133, 39 L. R. A. (N. S.) 1160, Ann. Cas. 1913E, 1296, wherein the court conceded evidently for the purpose of the argument, that the four propositions stated by Counsel for the appellant were Sound as general statements of law, the fourth of which being, “Where the Will is contested On behalf of an infant legatee or devisee, the forfeiture will not be decreed irrespective of Whether there was a gift over or not,” but the court said in reference to these propositions, “It does not follow that they are applicable to the facts of this case,” and it does not appear from the Opinion that infants were involved in that case or upon What, if any, authority other than the Statement of counsel this fourth proposition was asserted. Clearly such a concession, confessedly and apparently not pertinent to the facts being considered, cannot be accepted as authority in the decision of a question as “interesting and important,” to quote the Court of Appeals Of New York, as the One involved here. This case does not, therefore, alter Our position or affect What We have already Written. Wherefore the judgment is affirmed.

(181 Ry. 7) PROBUS v. ILLINOIS CENT. R. CO.” (Court of Appeals of Kentucky. June 7, 1918.)

1. COMMERCE (3:527(1) - “INTERSTATE COMMERCE’’—WHAT CONSTITUTES. One in the employ of an interstate railroad may be engaged in either interstate or intrastate commerce; if his efforts be employed in aiding interstate commerce, and necessary to the business of the railroad as such, he is engaged in interstate commerce, even though part of his time is taken up with work wholly connected with intrastate commerce. 2. COMMERCE S->27(5)—INTERSTATE COMMERCE —INJURIES TO SERVANT-FEDERAL EMPLOYERS’ LIABILITY ACT. One cannot recover for injuries under the Federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1916, §§ 8657–8665), unless he was at the time engaged in interstate commerce, and unless the employer be an interstate common carrier, the true test being whether the work is part of the interstate commerce in which the carrier is engaged. 3. MASTER AND SERVANT ©2284(1)—INJURIES TO SERVANT—INTERSTATE COMMERCE. Where the employé of an interstate common carrier was engaged in lifting rails from the ground and placing them on a car to be taken to another point on the line, and there used in maintaining or repairing the track, it was a question for the jury whether the person injured was engaged in interstate commerce when he was injured.

Appeal from Circuit Court, Hardin County. Action by Cisero Probus against the Illinois

Central Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Haynes Carter, of Elizabethtown, for appellant. L. A. Faurest, of Elizabethtown, Trabue, DOOlan & COX, Of Louisville, M. A. Arnold, of Leitchfield, and R. W. Fletcher, of Chicago, Ill., for appellee.

SAMPSON, J. Cisero Probus, a man of mature years, who had performed duty as a trackman on a railroad, was engaged in November, 1916, by appellee, Illinois Central Railroad Company, as One Of a CreW Of men to handle Steel which was being loaded and unloaded upon and along its main tracks in Hardin county. While thus engaged Probus received an injury to his foot and ankle, Which disabled him for Several months and caused him much pain and Suffering. He inStituted an action against the appellee Company, in the Hardin circuit court, to recover damages for his injury. In this action it is alleged that appellee COmpany is a common carrier, hauling freight and passengers from and into the state of Kentucky and other States for hire, and this allegation is not denied. The petition alleges facts sufficient to constitute a cause of action under the Federal Employers' Liability Act. After a demurrer by the defendant company was overruled, an answer was filed traversing the charges of negligence and denying reSponsibility, and the Second paragraph was a plea averring contributory negligence on the part of Probus. The injury occurred on the Second day On Which Probus Worked With the gang loading the steel. A train of flat cars, to which was attached boarding CarS for the accommodation of the Workmen, was used by the crew in taking up and distributing the Steel. It appears from the evidence that previous to the injury certain steel rails had been removed from the track and stacked on the right of way near thereto, and that the foreman in charge of the train and crew had orders from the company to take up and distribute part Of this steel along the track to the section foremen who were in need of steel for making repairs upon the track. According to appellant Probus' evidence, the crew would take up steel at one place and carry it along the line to a point Where it Was needed, and there unload Such part as required for the purpose of making the track secure, or for the purpose of repairing side tracks or spur lines. At the time Of the injury Probus, with the other members of the gang, was taking up steel which was stacked near the track, and loading it On a flat Car to be carried to another point, but to What point is uncertain, although Probus says he had information from the foreman in charge Of the work that the steel was to be used to make repairs in

ce-oPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Probus and others Who Were On the Stack of steel were approaching the place Where they would pick up the next rail, When the two men on the ground, who were pulling the rail out so as to allow the men to get behind it to lift up the steel, suddenly, and without warning to Probus, or the Others, pulled a rail out in such way as to and it did strike Probus foot, knocking it between two underlying rails, and, While his foot Was thus placed, overturned the rail pulled out upon his ankle and foot so as to cause Probus to fall off the stack of rails with his foot thus fastened between two rails, inflicting injury to Probus' foot and ankle. This is, in brief, the way the injury happened, as detailed by Probus. Evidence of certain other employés, taken in connection with that of Probus, tends to show that the Steel rails which were then being loaded were to be and were in fact afterwards distributed along the line, and again placed in the track as repairs, as and when needed; and it is therefore contended that Probus, as Well as the Other members Of the gang, Was engaged in interstate commerce, they at the time being engaged in providing material With which to repair the main track of the railroad, which was admittedly an interstate common carrier. At the conclusion of the evidence for the plaintiff the defendant company entered a motion for peremptory instruction upon the ground that the work which Probus was, at the time of his injury, engaged in performing, did not constitute interState COmmerce, and was not in furtherance or aid Of interstate commerce. This motion Was Sustained by the trial court, and the jury instructed to prepare and return a verdict for the defendant company, Which Was done, and judgment accordingly entered. Three grounds are relied upon for a reverSal: (1) Error of the court in giving a peremptory instruction to the jury to find for the defendant; (2) error of the court in admitting incompetent evidence on behalf of defendant and in rejecting competent evidence by plaintiff; (3) the verdict of the jury is contrary to the law and evidence. It Will Only be necessary to COnsider the correctness of the ruling of the court in directing a verdict for the defendant company. If he was engaged in interState commerce, then the COurt erred to his prejudice in "Sustaining the motion of the defendant railroad

Company for peremptory instruction in its favor; but, if he was engaged in intrastate commerce, then the ruling of the court was COrrect. [1] One in the employ of an interstate railroad may be engaged in either interstate or intrastate commerce, depending upon the character of his employment at the time in question. If his efforts be employed in aiding, furthering, or facilitating interstate commerce, and be necessary to the business of the railroad as an interstate carrier, then he is engaged in interState commerce, even though part of his time is taken up with Work wholly connected with intrastate comIllerCe. [2] One may not have a recovery for injury under the Federal Employers' Liability Act unless he Was at the time Of the infliction Of the injury engaged in interstate commerce, and the employer (railroad) was an interstate common carrier. The true test always is, is the Work in question a part of the interState Commerce in which the carrier is engag- . ed? L. & N. Railroad CO. V. Parker’s Adm’r,

| 165 Ky. 658, 177 S. W. 465; Illinois Central

R. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163; Mondou V. New York, New Haven & Hartford R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44; Seaboard Air Line Railway CO. V. Moore, 228 U. S. 433, 33 Sup. Ct. 580, 57 L. Ed. 907; St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 158, 33 Sup. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156; North Carolina R. CO. V. Zachary, 232 U. S. 248, 256, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168. The difficult question for determination in this case is, Was Probus engaged in interState commerce, Or Was his Work in aid Only Of intrastate commerce? The evidence is not altogether Satisfactory as to which branch Of COmmerce ProbuS Was engaged in; but there is Sufficient evidence to have Warranted the trial court in submitting, by proper instruction, the question of whether the Work Which Probus WaS engaged in performing was interstate commerce or intrastate COmmerce. L. & N. R. R. CO. V. Parker'S Adm’r, 242 U. S. 13, 37 Sup. Ct. 4, 61 L. Ed. 119; Ohio Valley Electric Railway Co. v. Brumfield’s Adm’rs, 180 Ey. 743, 203 S. W. 541. A perSOn Charged With and engaged in the duty of maintaining tracks, bridges, engines, or cars, to be used by an interstate carrier in commerce between different states, is engaged in interstate commerce. Pedersen V, Delaware, etc., R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. The appellee railroad company is admittedly an interstate common carrier, and the trackmen who worked upon the section, Keeping the main line in repair for the passage of interstate trains, were engaged in interstate commerce as much as those charg

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