and leave issue living at her death, the ten thousand dollars shall be paid to such issue, that is, to the issue living at her death. The interest of such issue, therefore, is contingent until her death.

There may be some doubt whether, grammatically, the last clause, namely, "such issue to take as by right of representation the shares of their respective parents," qualifies only the clause which gives the property to the issue of the deceased children of the testator, or qualifies that and the clause which gives it to the issue of Susan C. Jackson; but we do not think it necessary to determine this.

In King v. Savage, 121 Mass. 303, the question was, "whether Henry Savage was entitled to receive the entire principal of his father's share, to the exclusion of his children," or whether he and his children should take per capita. By a codicil, property had been given in trust to pay the income to Samuel Phillips Savage, the father of Henry Savage, during his life, and upon his decease the principal was to be divided among the issue of Samuel Phillips Savage, and if he left no issue, then among his heirs at law. In other bequests in the will there were provisions that the children of the life tenants on their death should take the principal in equal shares, "the issue of any deceased child to take the share of their deceased parent." It is said in the opinion, that, in the connection in which the word "issue" is used in the last clause quoted, it "would be limited to children," and Sibley v. Perry, 7 Ves. 522, and Pruen v. Osborne, 11 Sim. 132, are cited. The decision was, that the word "issue," in the codicil, should be limited to children, as it would be in other provisions of the will, and that therefore the issue of living children should he excluded. But if the word "issue" had been construed to mean descendants taking per stirpes, the same result would have been reached.

In Ralph v. Carrick, L. R. 11 Ch. Div. 873, Lord Justice James said: "It is, however, I think, settled, but rather by the case of Pruen v. Osborne, 11 Sim. 132, than by Sibley v. Perry, 7 Ves. 522, that, as a general rule, when you find a gift to a person and then a gift to the issue of that person, such issue to take only the parent's share, the word 'issue' is cut down to mean children," and he proceeds to point out some of the hard consequences of that rule. Lord Justice Brett said: "After hearing what the effect of such a general rule may be as described by Lord Justice James, I should have no objec

tion to be present at the funeral of Sibley v. Perry, 7 Ves. 522."

In the case at bar, the word "issue" in the first part of the clause is not used in immediate connection with the word "parent," and in other corresponding provisions of the will and of the first codicil, where property is given to "issue" on the death of their parent, it is sometimes expressed that the issue shall take their parent's share by right of representation, and sometimes the gift is simply to issue without any qualification. Although in England, when the word "issue" is used as the correlative of parent, it is held that the word "parent" means father and mother, and that the word "issue" means children, yet there, as well as here, the usual legal meaning of the word "issue" is, all lineal descendants. This is also the popular meaning in this commonwealth: Martin v. Holgate, L. R. 1 H. L. 175; Freeman v. Parsley, 3 Ves. 421; Weldon v. Hoyland, 4 De Gex, F. & J. 564; Bigelow v. Morong, 103 Mass. 287; Hills v. Barnard, 152 Mass. 67. We think that, as a matter of verbal construction, it would be as easy and natural to say that where the words "parents" and "issue" are used in connection with each other, the word "parents" means ancestors, as that the word "issue" means children; and in the construction of any instrument it is always necessary to look beyond the literal meaning of words.

The English decisions are collected in 2 Bigelow's Jarman on Wills, 101-107. They do not seem to be wholly satisfactory even to the English judges, and in Hills v. Barnard, 152 Mass. 67, we refused to follow the decision in Martin v. Holgate, L. R. 1 H. L. 175, in a case closely resembling that, and reached a conclusion analogous to that of the court of appeals in Ralph v. Carrick, L. R. 11 Ch. Div. 873. The tendency of our decisions has been more and more to construe "issue," where its meaning is unrestricted by the context, as including all lineal descendants and importing representation, and certainly when the issue take as of a particular time after the death of the testator, and only the issue living at that time take, the issue of deceased issue take by a sort of substitution for their ancestors. The present is not a case where the issue take as of the death of the testator, or where by the terms of the will issue take share and share alike: Hills v. Barnard, 152 Mass. 67; Dexter v. Inches, 147 Mass. 324, 325; Hall v. Hall, 140 Mass. 267.

We are of opinion that when by a will personal property is

given in trust to pay the income to a person during life, and on the death of such person to pay the principal sum to his issue then living, it is to be presumed that the intention was, that the issue should include all lineal descendants, and that they should take per stirpes, unless from some other language of the will a contrary intention appears.

The result is, that Charles C. Jackson, Frank Jackson, Marian Jackson, and Amy Folsom are entitled to the principal of the trust fund in equal shares.

Decree accordingly.

WILLS-CONSTRUCTION OF THE WORD "ISSUE."—A devise "to the male issue then living of testator's son " includes all male lineal descendants of that son then living, whether of the same generation or not: Wistar v. Scott, 105 Pa. St. 200; 51 Am. Rep. 197. The issue of any deceased legatee must be meant to mean descendants taking by right of representation: Hills v. Barnard, 152 Mass. 67.

COMMONWEALTH V. STEVENS.

[153 MASSACHUSETTS, 421.]

MASTER AND SERVANT. MASTER IS NOT CRIMINALLY RESPONSIBLE for the sale, by his servant, of liquor to a minor, if he had instructed all of his servants not to make any sales to minors, nor to persons under twenty-five years of age, but had left his servants to determine the question of minority from the appearance of customers applying for liquors, and one of his clerks had made an innocent mistake in judging of a customer's appearance. It cannot be affirmed as a matter of law that the test of appearance is unreasonable. Whether it was or not, and whether its imposition indicated bad faith or negligence, the jury should be left to determine.

MASTER AND SERVANT.-MASTER IS NOT ORDINARILY RESPONSIBLE CRIMINALLY for the act of his servant or agent, unless he has in some way participated, or countenanced or approved it.

F. W. Qua and W. F. Courtney, for the defendant.

A. E. Pillsbury, attorney-general, and C. N. Harris, second assistant attorney-general, for the commonwealth.

C. ALLEN, J. The defendant was a druggist, and was authorized by his license to sell intoxicating liquors for certain purposes, but not to minors. One of his clerks made a sale to a minor, and the principal question at the trial was, whether the defendant was criminally responsible therefor. There was evidence that he had instructed all of his clerks not to make sales to minors, nor indeed to any person under twenty-five years of age. The learned judge before whom the

case was tried instructed the jury that if they were satisfied that these instructions were given by the defendant, but that the clerks were to determine the question of minority simply from the appearance of the customer, and that the defendant authorized and permitted them to sell without further inquiry if they believed such person to be twenty-five years of age or upwards, and that the clerk who made the sale in this case applied this test, and in good faith sold to this customer, then the defendant would be liable, even if he had no personal knowledge of this sale, because the servant in such case was carrying on the defendant's business in the way he directed, and obeying his instructions; and that, under such circumstances, the act of the servant would be the act of the master. The correctness of this instruction is the principal question before us.

The question in this precise form has not before arisen, sofar as we know. In several cases there has been a consideration of the inferences of agency in making a particular sale. which may be drawn from a general employment to sell liquors in the defendant's place of business, and the effect of such employment in overcoming evidence tending to show that the defendant instructed his servant not to sell to minors, or in leading to the conclusion that such instruction, if given, was not given in good faith. But in these cases the question is not discussed whether the master would be criminally responsible for a sale made by a clerk to a minor by mistake, under the supposition that the minor was an adult, both master and servant intending in good faith that no sale should be made to a minor: Commonwealth v. Hayes, 145 Mass. 289; Commonwealth v. Houle, 147 Mass. 380; Commonwealth v. Rooks, 150 Mass. 59.

In the case now before us, it was ruled that criminal responsibility on the part of the master exists in a case where the clerks were expected to determine the question of minority simply from the appearance of the customer; but we cannot see that this particular method of determining the question of minority has any legal significance, except as bearing upon the good faith of the master or of the servant. If the clerks had been instructed not to be satisfied with the personal appearance of the customer, but in all cases to put a direct inquiry as to his age, or even to require further evidence, mistakes might nevertheless be made, although in such cases the clerks would still be carrying on the master's business in

the way prescribed by the master. If the clerks are permitted to be satisfied with a slight test, this indeed would be a proper subject for consideration in determining whether the instructions not to sell to minors were given and acted upon in good faith. But in the present case the instructions to the jury allowed them to convict the defendant, even though the jury should find that he had in good faith given instructions not to sell to minors, and though the clerk in good faith endeav ored and intended to follow those instructions, but had innocently made a mistake in judging of the purchaser's age from her appearance. The question was not submitted to the jury to determine, as a matter of fact, whether the permitted mode of determining the age was a reasonable one or not, or whether it indicated bad faith or negligence on the part of the defendant in the mode of conducting his business. That might have been proper for their consideration, but it cannot be affirmed as matter of law that the test was unreasonable, or that it indicated bad faith or negligence. The court cannot lay it down as a rule for the guidance of the jury that the master ought to require further evidence. In many cases, perhaps in most, a mere inspection of the purchaser might be sufficient: Commonwealth v. Emmons, 98 Mass. 6.

While a broader rule prevails in respect to a master's civil responsibility for the acts of his servant or agent, ordinarily he is not held responsible criminally unless he in some way participates in, countenances, or approves the criminal act of his servant. Ordinarily, if a servant does a criminal act in opposition to the master's will, and against his orders, though by mistake, the master cannot be held criminally responsible. This rule is of general application, though subject to some real or apparent exceptions: Commonwealth v. Nichols, 10 Met. 259; 43 Am. Dec. 432; Commonwealth v. Wachendorf, 141 Mass. 270; Commonwealth v. Briant, 142 Mass. 463; 56 Am. Rep. 707; Commonwealth v. Stevenson, 142 Mass. 466; Commonwealth v. Hayes, 145 Mass. 289, 295; State v. Smith, 10 R. I. 258; Anderson v. State, 22 Ohio St. 305. This rule has been held applicable to cases of sales to drunkards and slaves: Barnes v. State, 19 Conn. 398; State v. Dawson, 2 Bay, 360; Hipp v. State, 5 Blackf. 149; 33 Am. Dec. 463. The case of Commonwealth v. Uhrig, 138 Mass. 492, does not go so far as to hold that one may be convicted of an illegal sale for the unauthorized act of his servant, but only that after such sale by his servant he may be convicted of keep