deposited by the force of the blast. Heit; when it only becomes dangerous by the denied that it was his duty to look after the carelessness or negligence of the workmen❞ safety of the place where he was injured, or that his injuries were due to his own fault.

(Shaw v. New Year G. Min. Co., 31 Mont. 138, 77 Pac. 515; Thurman v. Pittsburg & Mont. Co., 41 Mont. 141, 108 Pac. 588); but it does obtain where the place is a completed one, as, for instance, that part of a mine tunnel which is behind the miner engaged in driving it (Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 Pac. 273). The argument is that, since these rules apply as well to a coal mine as to any other place of employment (Allan v. Bear Creek Coal Co., supra; Tennessee Coal, etc., Co. V. Garrett, 140 Ala. 563, 37 South. 355; Central Coal & Coke Co. v. Williams, 173 Fed. 337, 97 C. C. A. 597; McKenzie v. North Coast Colliery Co., 55 Wash. 495, 104 Pac. 801, 28 L. R. A. [N. S.] 1244), and since under them the appellant could have recovered, he should still be allowed to recover because the Coal Mining Act, by failing to define what the "working place" is which the miner must examine and keep safe, must be presumed to mean the working place as understood at common law.

Upon the trial it was either admitted or established that the accident occurred at a point 70 or 75 feet from the face of the entry, at a place where and at a time when appellant and his associate were loading the coal blasted out by the preceding shift; that they had just come on shift, and this work was part of their duty as miners; that they had inspected the entry for a distance of 50 feet from the face but no further; that the appellant could not tell without an inspection by sounding that the piece of coal which fell upon him was loose and likely to fall, but its presence and character would have been revealed through an inspection by sounding so that it could be picked down; no such sounding was done by either appellant or respondents; that blasting affects the roof and walls of the entry for not to exceed 10 feet from the face, but loosening of the walls and roof is accomplished by the action of air to which this portion of the entry in question had been exposed for nearly a month; that as the result of the accident appellant sustained serious injuries. Appellant also sought to show the existence of an agreement, rule, or custom by which the miners were to examine and keep safe the entry for a distance of 50 feet from the face, and the company to do likewise beyond that point; but this the trial court would not permit, being of the opinion that by chapter 120, Twelfth Session Laws, called the "Coal Mining Code," the duty is imposed upon the miner to examine and keep safe his own working place that his "working place," within the meaning of section 83 of that act, is wherever as miner he is required to mine or load; and that the existence of any rule, custom, or agreement in derogaIn further tion of this duty is immaterial. expression of these views, the plaintiff was nonsuited, and error is assigned accordingly. [1, 2] 1. At the common law the rule undoubtedly is that it is incumbent upon the master to exercise ordinary care and diligence to provide his employé with a reasonably safe place in which to work; and the employé is justified in assuming this duty to have been performed, so that, though bound to observe and protect himself against such dangers as are open and obvious to his senses, he is not required to stop, examine, | throughout which the duty of loading is to and experiment for himself to see if the Allen place assigned to him is a safe one. v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673; Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619. This rule does not obtain "when the plaintiff and his fellow servants are creating the place of work; when it is constantly being changed in character by the labor of the men working upon

"Each

[3] We do not know of any precedent or principle by which the working place of a coal miner, which at common law he must keep safe, is precisely defined; but if the working place as understood at common law is merely the face of the entry or that portion of the entry the walls or roof of which might be affected by blasting, then we think a specific modification in that regard is indicated by section 83 of the Coal Mining Act (Laws 1911, c. 120) as follows: miner shall examine his working place upon entering the same and shall not commence to mine or load until it is made safe. He shall be very careful to keep his working place in safe condition at all times. he at any time find his place becoming dangerous from any cause or condition, to such an extent that he is unable to take care of the same personally, he shall at once cease work and notify the mine foreman. In passing, we may add that by section 103 of the same act penalties are provided for its violation, including violations by miners, of section 83. The plain meaning of section 83, as it seems to us, is that before he goes to work the miner must examine the place where his work is to be done; if he is about to mine, he must examine the place where his mining is to occur; if he is about to load, he must examine that part of the workings

Should

"

be performed. While he is at work he must keep safe the place where he is working, and whenever he finds it unsafe, whether as the result of his operations or otherwise, he must make it safe, or, if he cannot do that, he must quit the work and report. It is thus apparent that the "working place" which the miner must under the statute examine and keep safe is a varying area,

*

If the employer and la

and that the duty imposed is a positive one, [ laborers. The suggestion is made that this cannot be borers all agree that the latter are to be of so, because the act by its section 70 re- the same or a common grade, and shall have quires the master to see that "all loose control themselves of certain features in the coal, slate and rock overhead in rib in trav- work, designed for their better protection, eling ways, where miners have to travel to we are unable to see wherein the arrangeor from their work," are taken down or ment is illegal, so long as the public policy carefully secured, and by its section 73 re- and the statutes are not violated." But that quires the foreman or his assistant to visit the plain provisions and clear purpose of a and examine every working place at least statute may not be set at naught by agreeeach alternate day and see to the security ment, rule, or custom is too well settled for of the same. The conclusion does not fol- discussion. Chicago & E. R. Co. v. Lawlow; rather the clear intent of the statute rence, 169 Ind. 319, 82 N. E. 768; Voshefskey is that such places as are the seat of active v. Hillside C. & I. Co., 21 App. Div. 168, 47 operations shall be looked after by both N. Y. Supp. 386; Young v. Chicago, M. & St. master and servant, and the mere fact that P. Ry. Co., supra; Smith v. Milwaukee B. at a given time one of such places may not & T. Exchange, 91 Wis. 360, 64 N. W. 1041, be the seat of active operations, and may 30 L. R. A. 504, 51 Am. St. Rep. 912; Little therefore at such time be subject to the exv. Southern Ry., 120 Ga. 347, 47 S. E. 953, clusive inspection of the master, does not 66 L. R. A. 509, 102 Am. St. Rep. 104; M., absolve the employé from the duty of exam-K. & T. R. Co. v. Roberts (Tex. Civ. App.) ination when that place is, or is about to become, the scene of his labors. As to the place at which the appellant was injured, the respondents should have seen to its safety; but it was also the duty of the appellant to refrain from loading until he had examined it and had made it safe. Neither party having observed the statutory duty, and the accident being due to this nonobservance, the parties were in pari delicto, and the case is squarely within the reasoning of Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 Pac. 441, in which, under analogous circumstances, the right to recover was denied. See, also, White on Personal Injuries in Mines, § 354; Thompson on Negligence, § 204; Young v. Chicago, M. & St. P. Ry. Co., 100 Iowa, 357, 69 N. W. 682.

46 S. W. 270.

The district court was clearly correct in both the positions taken, and the order of nonsuit necessarily followed. The judgment appealed from is therefore affirmed.

Affirmed.

BRANTLY, C. J., and HOLLOWAY, J.,

concur.

(47 Mont. 325)

In re WILLIAMS' ESTATE.

DAVIS et al. v. MELZNER. (Supreme Court of Montana. May 5, 1913.) 1. EXECUTORS AND ADMINISTRATORS (§ 459*)FINAL ACCOUNT-SETTLEMENT-TIME - PAYMENT OF DEBTS-STATUTES.

Rev. Codes, § 7661, provides that, if all the debts of an estate have been paid, the court must direct payment of legacies and distribution of the estate among the persons entitled; but if there are debts remaining unpaid, or if for other reasons the estate is not in proper shape to be closed, the court must extend the time for final settlement. Section 7662 declares that at the time designated in the previous section, or sooner, if all the property of the estate has been sold, or the administrator has sufficient funds to pay all debts, and the estate is in proper condition to be closed, the administrator must render a final account and pray for settlement. Held, that an administrator's final account cannot be settled or approved so long as there are outstanding claims against the estate unpaid, if there is any property in the administrator's hands available therefor.

[4] 2. No difficulty is met in the ascertainment of the intent with which the act was passed-the evil sought to be remedied, the good to be attained. Every section speaks the legislative realization of the hazards of coal mining-hazards which may involve not only the loss of valuable lives, but other consequences of grave import to society, and which, in the interest of the employé, the employer, and the public, it is imperative to reduce. Can such an act, can provisions therein imposing duties designed to accomplish such a purpose, be nullified by private agreement, private rule, or private custom? The answer is given in Edwards' Adm'r v. Lam, 132 Ky. 32, 119 S. W. 175, the very case relied on by appellant to support his contention. In that case the effect of an agreement between the employer and employés, which was not in derogation of the statute, was involved, and touching it tlement of his final account, the burden is on Where an administrator applies for the setthe court said: "The duty of the mineown-him to show affirmatively that he has paid all er, independent of statutory regulation and that primary duty to furnish a reasonably safe place in which to work, may vary according to the contract between him and his

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1973, 1974; Dec. Dig. § 459.*]

2.

EXECUTORS AND ADMINISTRATORS (§ 506*)— FINAL ACCOUNT-SETTLEMENT-PAYMENT OF DEBTS-BURDEN OF PROOF.

outstanding claims against the estate or has
exhausted all property available therefor.
[Ed. Note. For other cases, see Executors and
Administrators, Cent. Dig. §§ 2169-2177; Dec.
Dig. § 506.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

vis to the final account of the

tor de bonis non. We are not prepared to say that the objections are sufficient to entitle them to serious consideration. While it is set forth that the several claims made by Rachel E. Williams against the estate of Henry Williams, deceased, were allowed, it is not anywhere alleged that the orders allowing them have not been vacated or set aside, or that appeals have not been taken therefrom. It is alleged that there is certain real estate in the possession of the administrator de bonis non belonging to the estate of Henry Williams, deceased; there is not, however, any allegation that the administrator has any personal property available for the payment of estate debts. While it is further alleged that no part of the several claims allowed to Rachel E. Williams has ever been paid, there was not any offer of proof in support of this allegation. But, independently of the objections made, the order of the trial court is indefensible.

administra- Our attention is directed to the following language employed by this court in Dodson, Ex'r, v. Nevitt, 5 Mont. 518, 6 Pac. 358: "Claims against the estate are those in existence at the date of the death of the deceased. Other claims against an estate are those incurred by the administrator or executor in settling the estate, and are properly denominated expenses of administration." It is now insisted that by this classification a claim for advances made to an estate cannot be considered a claim against the estate; but the language above quoted is to be understood in the light of the question before the court for determination at that time. The point at issue was whether or not a claim for services performed at the instance and request of an executor of an estate constituted a claim against the estate. The court held that it did not; that, if anything, it was an item in the expense of administration of the estate. If the language quoted be accepted literally, it would preclude a claim for funeral expenses; but the statute in force at the time the decision above was rendered (section 273, Second Div., Stat. 1879) particularly recognized a claim for funeral expenses as a claim against an estate.

[1] It is very clear from sections 7661 and 7662, Revised Codes, that a final account of an administrator or executor cannot be settled or approved so long as there are outstanding claims against the estate which have not been paid, if there is any property in the hands of the executor or administrator available for the payment of such claims, in whole or in part.

[2] And it is equally apparent that it was the intention of the Legislature that, before a final account be approved, the executor or administrator must show affirmatively that he has paid all outstanding claims against the estate or that he has exhausted the property available for such purpose, and in the absence of such showing his final account cannot be approved.

[3] Assuming that there is sufficient in this record to show outstanding claims in favor of the estate of Rachel E. Williams, deceased, and that such claims have been settled and allowed in the reports which she made to the district court as administratrix, in the absence of any affirmative showing upon the face of such claims that they are illegal, the orders settling those accounts became conclusive upon the estate and upon all persons interested in the estate, not laboring under any legal disability. Section 7649; In re Dougherty's Estate, 34 Mont. 336, 86 Pac. 41.

[4] While it is not within the power of an executor or administrator by advances made by him to the estate to thereby make the estate his debtor regardless of the character or quality of his claim, yet it is equally well settled that such advances, made suitably and in good faith for the benefit of the estate, may be allowed and recovered as claims against the estate. 18 Cyc. 443.

[5] It is no argument to say that a claim for advances should not be allowed, since the administrator would be placed in the situation of passing upon his own claim. Section 7542, Revised Codes, specifically recognizes the fact that an executor or administrator may be a creditor of an estate, and provides the method of allowing such a claim.

In making the several orders approving the advancements made by Rachel E. Williams, we must indulge the presumption that the district court performed its official duties and made due inquiry as to the character of the advancements and the purposes for which they were made, and that before allowing them the court determined that they were for the use and benefit of the estate and properly chargeable against it. Indulging this presumption, the orders allowing those several claims became conclusive, and, before the final report of the administrator de bonis non could be approved, it was incumbent upon him to show that those claims had been paid or that all available property for their payment had been exhausted. The prayer of the objector should have been granted.

The order of the district court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

BRANTLY, C. J., and SANNER, J., con

cur.

Appeal from District Court, Custer Coun- place ready for delivery; that plaintiff rety; Sydney Sanner, Judge.