Bartow S. Weeks and C. Andrade, Jr., for appellant. Charles E. Kelley and James W. Osborne, for respondent. CHASE, J. (after stating the facts as above). The question certified to us involves three questions: (1) Is the defendant in a position to require an additional undertaking, as provided by section 3276 of the Code of Civil Procedure? (2) Can an additional undertaking be ordered for an amount in excess of $250? (3) Can an additional undertaking be ordered as security for costs already accrued or entered in a judgment, as well as security for costs that may thereafter accrue? The Revised Statutes (1st Ed.) (part 3, c. 10, tit. 2, § 4) provided that a defendant might require security for costs in certain cases as therein specified. By that section a defendant, as a matter of right, could require security for the payment of the costs where an action was brought by a nonresident plaintiff, and the court on application could order the plaintiff to give such security in the form of a bond, in a penalty of at least $250 "conditioned to pay, on demand, all costs that may be awarded to the defendant in such suit." It was by that title also provided that when an action was commenced where the defendant was entitled to require security for costs, the attorney for the plaintiff should be liable for the costs to an amount not exceeding $100, until such security was filed, and it was therein expressly provided that the attorney could relieve himself from such liability by filing security, as also therein provided. The amount of the bond so to be given was not limited by the Revised Statutes, but no provision was contained therein for an additional bond. By chapter 305, p. 298, of the Laws of 1875, section 4 of said title of the Revised Statutes was amended so as to authorize the court or any judge thereof, at any stage of the litigation, after the filing of the bond as provided in said statutes, upon its being made to appear among other things that the penalty of such bond is insufficient, to require the filing of another bond, "in the penalty of a sum sufficient to recover the costs and disbursements already accrued and incurred in the action, and the costs and disbursements probably to accrue and be incurred in the further progress of the action * conditioned to pay on demand to the defendant, * all costs that may be awarded against the plaintiff in such action, and that all proceedings on the cart of the plaintiff be stayed until such further bond be filed. By section 17 of the Code of Procedure the court was authorized in its discretion, in an action prosecuted or defended by (among others) an executor, to require security for costs. Sections 3268-3279 of the Code of Civil Procedure, as enacted in 1880, took the place of the provisions of the Revised Statutes and of the Code of Procedure. Said sections of the Code of Civil Procedure have not been amended since their enactment so as to affect the questions now considered. The right of a defendant to require a nonresident plaintiff to give security for costs and the authority of the court in its discretion to require security for costs, in an action against an executor in his representative capacity, is continued by said sections to the present time. By said section 3272 it is provided that the court, upon due proof by affidavit, "must make an order requiring the plaintiff, within a time specified, either to pay into court the sum of two hundred and fifty dollars, to be applied to the payment of the costs, if any, awarded against him, or, at his election, to file with the clerk an undertaking, and to serve a written notice of the payment or of the filing upon the defendant's attorney, and staying all other proceedings, on the part of the plaintiff, except to review or vacate the order, until the payment or filing, and notice thereof, and also, if an undertaking is given, the allowance of the same." Said section 3273 requires that the undertaking "must be to the effect that they will pay, upon demand, to the defendant, all costs which may be awarded to him in the action, not exceeding a sum, specified in the undertaking, which must be at least two hundred and fifty dollars." By said section 3276 it is provided that: "At any time after the allowance of an undertaking, given pursuant to such an order, or as prescribed in section three thousand two hundred and seventy. eight of this act, the court, or a judge thereof, upon satisfactory proof, by affidavit, that the sum specified in the undertaking, * is insufficient; * must make an order requiring the plaintiff to give an additional undertaking, or make an additional payment into court. Said section 3278 provides that where a defendant is entitled to require security for costs, the plaintiff's attorney is liable for the defendant's costs to an amount not exceeding $100, until security is given, and it further provides that "the plaintiff's attorney may relieve himself from that liability, although the defendant may not require security for costs to be given, by filing and procuring the allowance of an undertaking, as if an order had been made as prescribed in section 3272 of this act." The defendant was entitled to security as a matter of right, because the plaintiff was, at the commencement of the action, a nonresident of the state (section 3268), and he was also entitled to such security in the dis cretion of the court, pursuant to said section 3271, because he was sued as an executor in his representative capacity. When the first undertaking as security for costs was filed by the plaintiff, he had not only been served with notice of motion by the defendant to require such security, but he had failed to appear in court, as required by such notice. The plaintiff knew that the order was a matter of right, and that it would be granted as such, even if the court did not direct that security for costs be given, because the action was against an executor in his representative capacity. The plaintiff should not, because he had made default in appearing upon the motion, and then by diligence procured the undertaking and had the same allowed and approved before the order therefor was actually signed and filed, be allowed to say that it was voluntarily given by him. The defendant, by accepting the undertaking so given in advance of the entry of the order, and omitting to require the plaintiff to give a new undertaking in the same form and for the same amount after the order was actually filed, did not waive his right to additional security, as provided by said section 3276. The undertaking was actually allowed by a justice of the Supreme Court and duly filed, and it was undoubtedly intended to be a compliance with the order granted pursuant to the notice of motion. If we assume that the plaintiff's attorney obtained the undertaking voluntarily, pursuant to said section 3278, and not pursuant to an order, and that he thereupon had it filed, and procured the allowance thereof as if an order had been made as provided by said section 3272, an additional undertaking can be required within the express language of said section 3276 quoted. In Dunk v. Dunk, 177 N. Y. 264, 69 N. E. 539, the undertakings were not allowed pursuant to an order or otherwise. The undertakings given in that case were pursuant to agreement and by voluntary action. They were not allowed by the court, and at least one of them was not filed as prescribed by the Code provision. There is nothing in said section 3276 that limits the amount of an additional undertaking, except as it is limited by the amount necessary for security to the defendant. There is no prescribed maximum limit to the amount of an undertaking to be given as security for costs, or to the number of times application may be made for an additional undertaking or payment into court. If, to sufficiently secure the defendant, it was necessary to require an additional undertaking, or the payment into court of more than $250, it would be a useless expenditure of the time of the courts to require the application repeated a sufficient number of times until the multiple of $250 reached an amount sufficient for the security of the defendant. The au without reference to the time when it is given, is to pay "all costs which may be awarded to him in the action," without limitation as to the time when such costs accrue. It would seem, therefore, that the security for costs is general, and not limited by any reference to the time when they accrue. As we have quoted from the Revised Statutes, as amended by chapter 305, p. 298, of the Laws of 1875, the penalty of the bond, as required by said amendment, was directed to be fixed at a "sum sufficient to recover costs and disbursements already accrued and incurred in the action, and the costs and disbursements probably to accrue and be incurred in the further progress of the action." It was provided, however, that the condition of the bond should be "to pay on demand to the defendant, his representatives or assigns, all costs that may be awarded against the plaintiff in such action." The condition of the undertaking, as directed and prescribed by the Code of Civil Procedure, is substantially the same as the condition of the bond directed and prescribed by the Revised States and by the amendments thereto in 1875. There is no reason to assume that the Legislature intended to make the undertaking, pursuant to the Code of Civil Procedure, less comprehensive than the bond pursuant to the Revised Statutes as defined in the amendment and construed by the courts. The question as to whether security can be required to pay costs theretofore accrued or entered in a judgment, as well as those that may thereafter accrue, was directly considered by this court in Gedney v. Purdy, 47 N. Y. 676. In that action a plaintiff administrator was directed to file security for costs pursuant to section 317 of the Code of Procedure. Section 317 of the Code of Procedure corresponds with section 3271 of the Code of Civil Procedure, and the authority of the court in such case is the same as the authority of the court in any case directing security for costs. Judgment had been rendered in that action dismissing the complaint, with costs, and an undertaking in the penal sum of $1,000 was ordered, conditioned to pay all costs already incurred or that might thereafter be incurred, and it was further ordered that until the security be given all proceedings of the plaintiff be stayed. The court, in an opinion filed, but not fully reported, say: "The statute conferring upon the court a discretion to compel the plaintiff to give security for costs at any stage in the progress of the action, and without limiting the discretion to costs thereafter to accrue or to costs which would be personally chargeable upon the party, it follows that the order may be general requiring security for all the costs of the action. This will include the costs which may have been adjusted and included in a judgment, as well as the other costs in the action." Apart from the authority of that case the protection to be given a resident defendant against costs in an action by a nonresident requires that the undertaking be conditioned to pay the costs accrued to the same extent as costs thereafter to accrue. An order requiring security for the payment of costs may be enforced as provided by said section 3277, and it may also be enforced by staying proceedings until compliance with the order. We agree with the opinion in Bender v. Paulus, 109 App. Div. 148, 95 N. Y. Supp. 670, and with the statement of the court in that case, wherein it refers to expressions in the opinion in Dunk v. Dunk, supra, and say: "These expressions, however, were not necessary to the decision of the appeal, which proceeded solely on the ground that the additional security for costs, provided for by section 3270 of the Code of Civil Procedure, can be required only when the original security was given in pursuance of an order, and could not be exacted where the first undertaking was given voluntarily, without any order requiring it. The mere fact that the effect of an order for additional security is practically the same as would be that of an order compelling the plaintiff to secure payment of the judgment is not a sufficient reason for refusing to require additional security for costs to be given where the moving party brings himself within the terms of the Code provisions on the subject." The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division, and the question certified answered in the affirmative. CULLEN, C. J., and GRAY, VANN, WIL LARD BARTLETT, and HISCOCK, JJ., con cur. Ordered accordingly. BOSTON ELEVATED RY. CO. v. CHAPIN. Boston Elevated Railway Company Charter (St. 1894, p. 766, c. 548), § 13, required that company to deposit with the State Treasurer $500,000 as a fund out of which executions for damage to abutting owners by the construction and operation of the railway might be paid. Section 14 provides that the Supreme Judicial Court may at any time, on application of that company, when it shall satisfy the court that there is no longer occasion for the fund, order the Treasurer to pay the same to the company. Held, on petition under section 14 alleging that there was no longer occasion for the retention of the fund by the Treasurer and asking that he be ordered to pay it over to the company, that the court could not take action on the assumption that the uncertainty of the enterprise when the charter was granted was the sole foundation for the creation of the fund, and order it paid by the Treasurer to the company on the ground that for all practical purposes there was at the time of the petition no uncertainty about the financial status of the com pany, and could not assume that the Legislature, in requiring the creation of the fund, did abutting owners by the construction and operanot intend to provide security for damage to tion of the railway, and that, there being unsettled claims by abutting owners on the line of the original route and of extensions authorized, the petition would be dismissed. Petition by the Boston Elevated Railway Company against Arthur B. Chapin, under its charter (St. 1894, p. 766, c. 548, § 14), providing that the Supreme Judicial Court may at any time, on application by the railway, when it shall satisfy that court that there is no longer occasion for the fund required by section 13 to be deposited with the State Treasurer to satisfy executions issued for damage to abutting owners, order the Treasurer to pay such fund to the railway. The case was heard by a single justice, and reserved by him for the consideration of the full court. Petition dismissed. Gaston, Snow & Saltonstall, for petitioner Boston Elevated Ry. Co. Dana Malone and Fred T. Field, for defendant. LORING, J. By the charter of the Boston Elevated Railway Company that corporation had to deposit with the Treasurer of the commonwealth the sum of $500,000 "which," in the words of section 13 of that charter (St. 1894, p. 766, c. 548), "shall be in the hands of said Treasurer a fund out of which any execution issued pursuant to the provisions of the preceding section shall be paid by said Treasurer." Executions issued pursuant to the provisions of the preceding section are executions for damages caused to abutters by the construction and operation of the elevated railway. By section 19 of the charter $300,000 of the $500,000 was pledged to the commonwealth (subject to the prior lien for the payment of abutters' damages) to secure the construction of certain lines of tracks in Boston. The provisions of section 19 were amended by St. 1897, p. 513, c. 500, § 22, and St. 1901, p. 61, c. 90. But the lines of railroad specified in section 19 of the charter and in these subsequent acts have been built and the whole fund is now held by the Treasurer for the purposes stated in that part of section 13 of the charter which has just been quoted. By section 14 of the charter it is provided that: "The Supreme Judicial Court may at any time, on application of said corporation, when it shall satisfy said court that there is no longer occasion for said fund for the purposes of this act, order the said Treasurer to pay the same to said corporation or its assigns." The petition now before us is a petition under section 14 alleging that there is no longer occasion for the retention of this fund by the Treasurer, and asking that he be ordered to pay it to the petitioning corporation. The case was heard by a single justice and reserved by him for our consideration. The facts found at the hearing are substantially these: The petitioner has paid the claims of about 95 per cent. of the abutters on the original route, amounting approximately to $5,200,000. It has also paid the claims of about 67 per cent. of the abutters on the later extension from Guild street to Forest Hills, amounting approximately to $450,000. All claims of abutters for damages "have been paid at once whenever the amount has been determined either by an amicable agreement of the parties or by trial, and * * no executions to enforce the payment of any such claims have ever been issued." The petitioner on September 30, 1907, had a surplus over and above its capital stock and indebtedness of substantially $4,700,000. Its capital stock is $13,300,000, it has earned and paid dividends at the rate of 6 per cent. per annum for a number of years, and it is now financially able to pay all claims for abutters' damages, and in all probability will be financially able to do so in the future. In addition to the construction of its original route and the extension to Forest Hills referred to above, the petitioner is now engaged in the construction (1) of an elevated approach to the Washington Street subway (under St. 1902, p. 449, c. 534), and (2) an extension of its elevated railway to East Cambridge (under St. 1906, p. 742, c. 520). In addition it is authorized to construct (1) certain additional elevated railways in connection with its route over Cambridge bridge (by St. 1906, p. 742, c. 520), and (2) an extension of its elevated railway from Sullivan Square to Malden and Everett (by St. 1907, p. 434, c. 479). The amount of unsettled claims of abutters under the provisions of the act of 1894, on the line of the original route of the railroad, and of the extensions above referred to, "may exceed $500,000," Counsel for the petitioner are doubtless right in their assertion that when the charter under which the Boston Elevated Railway Company has since been built was granted to Mr. Meigs and his associates in 1894, the success of the enterprise, or rather of any of the enterprises thereby authorized, was uncertain. But we do not feel that we can take action here on the assumption that the uncertainty of the enterprise was the sole foundation of the creation of this fund, and order it to be paid by the Treasurer to the petitioner on the ground that for all practical purposes there is now no uncertainty about the financial status of the railway company. It had long been the established policy of the commonwealth (when the charter in question was granted in 1894) to require security, if asked for, to be given for the payment of land damages before a railroad could enter upon land taken by eminent domain. St. 1833, p. 778, c. 187, § 3; St. 1835, p. 534, c. 148, § 1; Rev. St. 1836, c. 39, § 61; St. 1855, p. 498, c. 9, § 1; Gen. St. 1860, c. 63, § 32; St. 1874, p. 368, c. 372, § 65; Pub. St. 1882, c. 112, § 97. More than that, when by St. 1890, p. 334, c. 368, general authority was given to any railroad or street railway company to "build and use the Meigs system of elevated railway," it was provided in section 2 that this liberty should be subject to the provisions of the Public Statutes as to damages in case of steam railroads (including the section referred to above requiring security to be given if asked for). We do not feel that we can assume that the Legislature in requiring the creation of this fund of $500,000, did not intend to provide security for the damages caused to abutters by the construction and operation of the elevated railway. We can hardly accede to the argument of the petitioner's counsel that if this be the true construction of section 13 there was no occasion for the authority given to this court by section 14 to order the same paid over "at any time," on its being satisfied that "there is no longer occasion for said fund." The possibility of just such extensions as have since been authorized may well have been in the mind of the Legislature. Having in mind such possibilities, and having in mind also that the damages to abutters are caused not all at once but as the construction begins, it may well be that the Legislature thought it fair to the Boston Elevated Railway Company to insert in its charter such a general provision as that set forth in section 14. If we are wrong in our construction of this charter relief can be readily had upon application to the Legislature. Petition dismissed. The question of due care and negligence is ordinarily one for the jury, and becomes one of law only when the facts are undisputed. [Ed. Note.--For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 279-302.] 2. MUNICIPAL CORPORATIONS-STREETS-COLLISION BETWEEN VEHICLES-NEGLIGENCEQUESTION FOR JURY. In an action for injuries to a street railway conductor while on the running board of his car collecting fares, caused by a collision between the car and defendant's automobile, plaintiff's negligence. as well as that of his motorman, and defendant's negligence in operating the automobile, held for the jury. Exceptions from Superior Court, Hampden County Edward P. Pierce, Judge. Action by George E. Dudley against Charles B. Kingsbury for personal injuries. Plaintiff recovered a verdict for $510, and defendant brings exceptions. Overruled. John McKean, for plaintiff. Brooks & Hamilton, for defendant. MORTON, J. The plaintiff was a conductor in the employ of the Springfield Street Railway Company. While on the running board of a car in the act of collecting fares, he was injured by a collision between an automobile owned and managed by the defendant and the car. This is an action to recover for the injuries so received. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the court to give various rulings that were requested. There are three questions: (1) As to the plaintiff's due care; (2) as to the negligence of the motorman of the car; and (3) as to the defendant's negligence. To questions put to them by the presiding judge after they had returned their verdict the jury answered that the plaintiff and motorman were in the exercise of due care, and that the defendant was negligent. We think that the case was rightly submitted to the jury and we discover no error in regard to the instructions that were given or refused. 1. As to the plaintiff's due care. The plaintiff was where he had a right to be and was engaged in the performance of his duty, and whether he should have seen and guarded against the danger of a collision and have exercised more supervision over the motorman, and whether, taking all of the circumstances into account, he was in the exercise of due care was plainly for the jury. 2. As to the negligence of the motorman. We assume in the defendant's favor that if the motorman's negligence caused or contributed to the collision the plaintiff cannot recover. Yarnold v. Bowers, 186 Mass. 396, 71 N. E. 799; Allyn v. B. & M. R. R., 105 Mass. 77. The instructions on this point were, to say the least, sufficiently favorable to the defendant. We do not see how it could have been ruled as matter of law that the motorman was negligent. The question of due care or negligence is ordinarily one for the jury. When the facts are undisputed it becomes one of law. In this case it was for the jury to determine what the facts were and then decide whether they showed that the motorman was or was not negligent. Whether he should have discovered the plight of the automobile before he did and whether he exercised proper care in the way in which he operated the car after he did discover it were clearly questions for the jury. 3. As to the defendant's negligence. There was testimony which, if believed, tended to show that the accident was due to failure on the defendant's part to use the emergency brake, in other words to what might be found to be negligence in the manner in which he operated the car. It was for the jury to give such weight as they saw fit to his testimony and explanation in relation thereto. It was also for them to say wheth er he exercised due care in turning into Leyford Terrace as he did and whether if he did not such want of due care on his part contributed to the accident. The question of defendant's negligence like that of the plaintiff's and motorman's due care was for the jury. It could not be ruled as matter of law that there was no evidence of negligence on his part. Exceptions overruled. DRESEL v. KING et al. (Supreme Judicial Court of Massachusetts. Worcester. May 20, 1908.) 1. WILLS-CONSTRUCTION-RESIDUARY CLAUSE -LAPSE OF SPECIFIC LEGACY. A will directing the executor to convert all the residue of the estate into cash and to divide the same among the pecuniary legatees previously named in proportion to their several pecuniary legacies, but, if the estate should not be sufficient to pay debts, charges of administration, and the pecuniary legacies, the same were to be proportionally abated, indicates a purpose of the testator to include all his estate not actually disposed of in other parts of his will, and thus to make a complete disposition of all the property, and therefore a lapsed legacy should be disposed of under such clause. [Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 2184.] 2. SAME-SHARES OF RESIDUARY LEGATEES. Where the residuary legatees were not mentioned by name, but their identity as individuals was plainly shown, and they were not members of a distinct class, and had no relation to one another except as recipients of the property, one of them being a corporation, and most of them not being relatives of the testatrix or of one another, a bequest to them in proportion to their several pecuniary legacies gave them each a share in the proportion specified, and not as a class; and therefore, on the death of one of them, her share in the residuary estate lapsed and passed to the next of kin as property undisposed of by the will. [Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 2187.] Bill by Ellis L. Dresel, administrator, against Caroline H. King and others. Will construed. Frederic S. Goodwin, for pecuniary lega tees. Alfred S. Pinkerton, Frank B. Smith, T. H. Gage, Jr., and Frank F. Dresser, for respondents. KNOWLTON, C. J. This is a bill brought by an administrator with the will annexed, for instructions as to the meaning of the will. The fourteenth clause of the will is as follows: "I direct my executor, hereinafter named, to convert all the rest and residue of my estate into cash and to divide the same among the pecuniary legatees hereinbefore named, in proportion to their several pecuniary legacies; but should my estate not herein specifically devised be insufficient to pay all my debts, charges of administration and the pecuniary legacies herein given, said pecuniary legacies are to be proportionally abated." One of the pecuniary legatees, to whom |