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where the trolley pole was set, was running at the rate claimed by the plaintiff, it would be for them to determine whether its speed was or was not excessive; that they were the judges of what was the proper speed under all the attending circumstances; that it was for them also to decide whether the actual speed maintained was material in its bearing on the proof of negligence; and that the plaintiff was bound to establish by a fair preponderance of evidence that the defendant was negligent substantially as alleged in the complaint.

This charge was correct. The defendant, by its requests, sought to make the cause turn wholly, as matter of law, on the sufficiency of the proof offered by the plaintiff that the car approached his automobile at a great and unreasonable rate of speed, and that this was a material element in producing the accident. The plaintiff claimed that the collision of his automobile with the trolley pole was due to the negligence of the defendant in the management of its car, and in the location of the pole. This negligence was evinced, according to his complaint, by failure to keep a proper lookout, and to stop the car so as to give him an opportunity to get his automobile to a place of safety, and to control or shut off the search light or to substitute one less powerful; by placing the pole too near to the traveled part of the highway; and by running the car at a dangerous and unlawful rate of speed. The rate of speed might have been dangerous and excessive under all the attending circumstances, though it would not be a great, unusual, or excessive rate under ordinary conditions. Smith v. Conn. Railway & Lighting Co., 67 Atl. 888. Reasonable care on the part of the defendant might have required the motorman to stop his car until there had been a reasonable opportunity to get the automobile off the tracks in safety. For the court to center the attention of the jury on the proof made of the maintenance of an unusual rate of speed and its consequences, as necessarily decisive of the cause, would have been misleading. A fact may be a material support of a cause of action, and yet its establishment may not be essential to a recovery. The situation of the parties was a complex one, and the duties of each were to be measured by looking at it as a whole. In relation to the point of the materiality of the rate of speed at which the car was going as an element of negligence, the charge requested, so far as supported by the law, was substantially given.

There is no error. The other Judges concurred.

(80 Conn. 248)

Appeal of GRAY et al. (Supreme Court of Errors of Connecticut. Oct. 22, 1907.)

1. MUNICIPAL CORPORATION-ESTABLISHMENT OF STREET-PROCEEDINGS-APPEAL. The charter of the city of Hartford makes it the duty of a committee, appointed to hear

an appeal in proceedings for the laying out of a public street and apportionment of damages and benefits, to apportion the whole amount of the damages and benefits in case he finds cause to alter the appraisal or assessment. Held, that this involves a determination by the committee of all questions of law and fact raised by the appeal essential to finding whether there was cause for reapportionment, and his report cannot be set aside merely because he has made such rulings upon questions of law, but only in case of improper rulings.

2. DEDICATION-ACCEPTANCE.

Questions as to dedication and acceptance of a public street are questions of fact. [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Dedication, § 88.]

ESTABLISH

3. MUNICIPAL CORPORATIONS MENT OF STREET-PROCEEDINGS-APPEAL. It is the purpose of a remonstrance to the report of a committee, appointed to hear an appeal in proceedings for the laying out of a public street and for apportioning benefits and damages, to point out errors in the rulings or conduct of the committee which are harmful to remonstrant, and to do this in such manner that an issue of law or fact may be joined thereon in the same manner as in other pleadings. 4. SAME.

The report of a committee to hear an appeal in proceedings to lay out a public street and to apportion damages and benefits will not be set aside or recommitted because of a mere harmless error or improper finding of an immaterial fact.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1181.] 5. SAME.

In cases where the trial of an appeal from proceedings to lay out a public street and apportion damages and benefits is to a committee, the court will not find facts either from evidential facts found by the committee or from testimony taken before the committee; the only facts to be found by the court in such a case being those proved on issues raised on the remonstrance and tried to the court.

Appeal from Court of Common Pleas, Hartford County; John Coats, Judge.

Proceeding by the board of street commissioners of the city of Hartford for the laying out of a street and for apportionment of damages and benefits. From a judgment accepting the report of the committee and overruling a remonstrance to the acceptance, Mary W. Gray and another appeal. Affirmed.

Appeal to Hon. John Coats, judge of the court of common pleas of Hartford county, for a reapportionment of damages and benefits for the laying out of Gray street, in the city of Hartford. A committee was appointed to hear the appeal, who reported that the original appraisal and assessment were equitable and just, and refused a reapportionment. A remonstrance to the acceptance of the report was filed by the appellants and overruled by the judge, who accepted the report and rendered judgment in accordance with its findings. The appellants appeal to this court.

Daniel A. Markham and Alexander Arnott, for appellants. Arthur L. Shipman, for appellee city of Hartford. Edward L. Smith, for appellee John S. Hunter.

THAYER, J. The first six assignments of error question the correctness of the ac

tion of Judge Coats in overruling the remonstrance of the appellants and accepting the report of the committee. They may be considered together.

A short street about 450 feet in length, extending westerly from Sisson avenue to Evergreen avenue, was laid out by the city of Hartford. John S. Hunter owned the land over which the westerly 165 feet of the street was laid, and also the adjoining land on both sides. The appellants owned land abutting on the street farther east. The board of street commissioners, to whom the matter of the appraisal of damages and assessment of benefits resulting from the layout was referred, found that Hunter and no other person was damaged by the layout, and appraised his damages at $1,200. They found that the appellants, and no other persons, were benefited by the layout, and assessed their benefits at $4.465 per front foot. The amount thus assessed as benefits against the appellants is just equal to the sum at which Hunter's damages were appraised. It was agreed on the hearing before the committee that at the time the street was laid out there existed a highway by dedication over the entire course of the layout east of Hunter's land to Sisson avenue, and it was claimed by the appellants, but denied by the appellees, that such highway by dedication also existed over the Hunter land to Evergreen avenue in the line of the layout, and consequently that Hunter received no damage, and the appellants no benefit, from the layout of the street. It is not claimed on this appeal that the appraisal and assessment appealed from were improper if no highway existed over the Hunter land at the time of the layout.

In paragraph 54 of his report, the committee finds that the Hunter land which is included in the layout of the street had never been dedicated to or accepted by the public, that the appraisement of damages and assessment of benefits were equitable and just, and that the appellants were not aggrieved thereby. This is a finding directly against the appellants' contention. The only ground of remonstrance to this paragraph of the report was that the statements therein are an attempted application of the law to the entire facts of the case. It was made the duty of the committee by the charter of the city of Hartford, under which he was appointed and acting, to hear the appeal, and, if he should find cause to alter the appraisal or assessment, to reapportion the whole amount of damages and benefits. This involved a determination by the committee of all questions of law and fact raised by the appeal essential to finding whether there was cause for a reapportionment. The report therefore could not be set aside merely because he had made such rulings upon questions of law, but only in case of improper rulings. This ground of remonstrance was insufficient and demurrable, therefore, because it failed to show that the committee's

ruling was erroneous if it was a conclusion of law. But we think it was a finding of fact. Questions of dedication and acceptance are questions of fact. Hartford v. N. Y. & N. E. R. R. Co., 59 Conn. 250, 254, 22 Atl. 37. It is now urged, although the question was not raised by the remonstrance, that if it is a question of fact it is a conclusion from other subordinate and evidential facts found by the committee, and that the conclusion is not warranted by those facts. Many facts were found by the committee which doubtless tend to show a dedication and acceptance; but we cannot, from the facts thus found, say that the conclusion drawn by the com. mittee was so illogical and unsound as to be unwarranted by law. Other grounds of remonstrance attacked particular paragraphs of the committee's finding; some on the ground that the facts found did not pertain to any issue in the case, and others on the ground that they were found without evidence or were contrary to the evidence. The remonstrance did not show that the appellants were harmed or the committee's conclusion affected by the impertinent paragraphs nor point out in what manner; if at all, the other findings complained of harmed them. It is the purpose of a remonstrance to point out errors in the rulings or conduct of the committee which are harmful to the remonstrant, and to do this in such manner that an issue of law or fact may be joined thereon in the same manner as in other pleadings. A report will not be set aside or recommitted because of a mere harmless error or improper finding of an immaterial fact. The trial judge was right therefore in overruling the remonstrance.

The appellants, after judgment, requested the judge to make a finding of facts upon the issues tried before the committee and evidential thereto, and presented a draft finding as required by rule 7, in cases when the trial is to the court. The request was refused, and such refusal is made the ground of the seventh and only remaining assignment of error. In cases where the trial is to a committee, the court will not find facts either from evidential facts found by the committee or from testimony taken before the committee. Miller v. Welles, 23 Conn. 21, 34; Goodman v. Jones, 26 Conn. 264, 267; Staples' Appeal from Probate, 52 Conn. 425, 427. The only facts to be found by the court in such a case are those proven upon issues raised on the remonstrance and tried to the court. There is no error. The other Judges concurred.

(73 N. J. E. 117)

POWELL v. YEARANCE et al. (Court of Chancery of New Jersey. Oct. 7, 1907.)

1. APPEAL AND ERROR-DECISIONS REVIEW. ABLE-FINALITY.

A bill was brought against the beneficiaries of a decedent to impress a trust on the devised

property. A final decree was rendered against one defendant charging her share with the entire amount, but the decree did not dismiss the bill against any of the defendants, nor was there any reference therein to the rights of the other defendants. Upon appeal by the one defendant alone, the charge placed upon her share was diminished, the decree reversed, and the lower court entered a decree on remittitur. Held, that the decree on remittitur was final as to the character and extent of the appealing defendant's liability.

2. SAME-PERSONS CONCluded.

As to the defendants not parties to the appeal the decree on remittitur was only interlocutory.

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A second appeal will lie by defendants not parties to the first appeal to bring up proceedings subsequent to the mandate on remittitur to correct errors of the court in entering decree on the mandate.

5. SAME-PARTIES ON APPEAL.

While the general rule is that all parties to the record should be made parties to an appeal, the question is one for the final determination of the appellate court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1795-1797.] 6. TRUSTS

ENFORCEMENT

SUFFICIENCY OF DECREE.

PROCEEDINGS

On a bill to impress a trust on devised property to the value of a house and lot which certain of the devisees promised decedent to convey to complainant, a decree of specific performance is not necessary; but a decree charging the respective shares of the devisees for payment of the amounts respectively due may be made.

7. SAME-CONSTRUCTIVE TRUSTS-BREACH OF AGREEMENT WITH TESTator.

Where a trust is impressed upon devised property to enforce the performance of a promise to the testator subject to which it was intended to be devised, it is upon the ground of fraud in holding the property free from the effect of the promise, from which a trust ex maleficio arises.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Trusts. §§ 148-150.]

8. SAME-ESTATE DEVISED UPON PROMISE OF LEGATEE-EFFECT ON OTHER LEGATEES.

Where a promise, on the faith of which an estate is devised to persons severally, is made by one of the devisees, the other beneficiaries do not hold their shares subject to the promise, as otherwise one beneficiary would be enabled thereby to deprive the rest of their benefit by setting up a secret trust.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, § 149.]

9. SAME-STATUTE OF FRAUDS AND OF WILLS -NATURE OF RELIEF.

The statutes of frauds and of wills are operative in equity, and relief from them, where property subject to a trust is retained free from the trust, is upon the principle that statutes to prevent frauds are not to be used as instruments of fraud.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Trusts, § 141.]

Bill by William Powell, administrator, against Lillie E. Yearance, George D. Randall's executors, and others, to impress a trust on devised property. Dismissed except as to defendants Yearance and the executors.

The original bill in this case was filed on November 22, 1893, by Mrs. Powell against the executors of the will of George D. Randall, and also against his children, Mrs. Yearance, Edith, and Frederick L., devisees and legatees of his residuary estate under his will. By an amendment to the bill, filed June 15, 1894, the three infant children of Frederick L. Randall, who had also an interest in the residuary estate, were made parties. The general object of the bill was to impress a trust in favor of Mrs. Powell, on the property left by Mr. Randall to his children and grandchildren, by reason of a parol promise alleged to have been made by two of the three children (Mrs. Yearance and Edith), by reason of which promise the testator was induced to execute his will without inserting a provision in favor of the complainant, Mrs. Powell, by which she should receive (on certain conditions) $4,500 from the estate. Payment of the $4,500 as a charge upon the entire estate is sought.

The will, after directing payment of debts and a specific devise of a house in Clinton avenue, or the proceeds of its sale, to his two daughters, devises the remainder of testator's estate as follows: The income of one-third to his daughter Mrs. Yearance during her life, and the income of onethird to his son Frederick during his life, while the remaining one-third is devised and bequeathed absolutely to his daughter Edith on reaching 24 years of age; the income to be paid to her by the executors until that time. On Mrs. Yearance's death leaving issue, the one-third vested in her for life goes to her children absolutely, and on her death without issue one-half of this third is to go to the daughter Edith absolutely at 24, the remainder to the children of Frederick equally, payable to them severally on reaching 24. No express devise or bequest is made of the principal of the one-third of the estate vested in Frederick for life, and as to this the testator seems to have died intestate.

The

The defendants Mrs. Yearance and Edith answered, denying the promise to the testator, alleged to have been made by them, and the executors answered separately, putting complainant to proof of her case. defendants Frederick L. Randall and his three infant children were served with process, but no appearance or answer was filed by or on behalf of either of them, nor was any decree pro confesso taken against them at the time of the hearing in June, 1896, before Vice Chancellor Reed, on the amended bill and answer. On this hearing the executors and the answering defendants alone appeared to defend. Upon the proofs sub

mitted, the Vice Chancellor found that the alleged promise was established as against the defendant Mrs. Yearance, and on December 22, 1896, a final decree was advised, reciting that complainant was entitled to the relief sought by her bill against Mrs. Yearance, and directing that Mrs. Yearance (within a time fixed) convey to the complainant a house and lot described in the bill, or that, in default, she pay complainant the whole amount, $4,500, and that until so paid the executors pay to complainant any moneys Mrs. Yearance was entitled to in the estate, towards payment, until fully satisfied. Decision as to the question of interest on the $4,500 was reserved.

The learned Vice Chancellor in his conclusions stated that there was no proof of any promise valid or binding on the daughter Edith, and that no decree could be made against her share of the estate. The final decree, however, did not dismiss the bill either against her or against any of the other defendants; nor was there in the decree any reference to their rights. Mrs. Yearance appealed from this final decree, and on the appeal the complainant, as the sole respondent, and Mrs. Yearance, as the sole appellant, were the only parties. Mrs. Powell did not appeal from the decree because of failure to hold the other defendants. On this appeal, the Court of Errors and Appeals, after full examination of the proofs ([1897] 55 N. J. Eq. 577, 37 Atl. 735), also reached the conclusion that Mrs. Powell was entitled to a decree against Mrs. Yearance, charging her share of the estate, but only to the extent of her share of the $4,500, instead of the whole amount, and, in so far as it charged her with more, the decree was said to be wrong. The Court of Ap peals, however, did not itself direct the form of decree to be drawn, and on June 28, 1897, a decree was made on appeal, reversing the decree in chancery and remitting the record and proceedings to this court, "to the end that a decree may be made by said court in conformity with the opinion of this court." In reference to complainant's right to compel payment of the residue of the bequest from those entitled to the other shares, the opinion of the court by Mr. Justice Collins says (55 N. J. Eq. 580, 37 Atl. 735) that, as the devisees of these shares were not before the court, it was precluded from examining and determining the question. The opinion, however, said upon this point that the Vice Chancellor in his opinion assumed that there could be no claim against the other devisees, in the absence of promises by them, respectively, but that there were decisions holding otherwise, in cases like the present, and that they proceeded on the theory that one of several devisees of a class represents all, and that where a testator executes his will on the faith of a promise that some trust will be performed, made by one of the class on behalf of all, it is fraud

for the others to claim the devise without showing the burden. And it was further declared in the opinion that, should the Court of Chancery adhere to the view of the Vice Chancellor, Mrs. Powell might present the question by appeal. The proceedings in this court subsequent to the remittitur were as follows: On February 15, 1899, Mrs. Frederick L. Randall was appointed guardian ad litem for her children, the three infant defendants. Mrs. Powell died in January, 1901, and the suit was revived in the name of her husband as her administrator. In June, 1901, a decree pro confesso was taken against the defendant Frederick L. Randall, and on January 18, 1904, after notice to all the defendants, the decree on remittitur was settled. This final decree on remittitur, entered on January 18, 1904, recited that, in conformity with the obedience to the decree of the Court of Errors and Appeals, it was decreed that Mrs. Yearance pay to the complainant, as administrator of Mrs. Powell, within 20 days, the sum of $1,500, with interest from March 13, 1899, and costs, and that until said amount was fully paid and satisfied the executors of Mr. Randall pay to complainant all moneys which Mrs. Yearance might be entitled in the estate. The decree further recited that the Court of Errors and Appeals was of opinion that there might be an equal liability on the part of the other devisees who were parties defendant to the suit, but that this question was not determined, because said parties defendant were not parties to the appeal, and that a decree pro confesso had been taken against Frederick Randall, one of the defendants, and then ordered that the cause be set down for hearing and argument upon the pleadings and proofs as already taken and filed in the cause, and on such further proofs as the guardian ad litem of the infant defendants might offer, "to the end that it may be determined if there be any liability to said complainant on the part of the defendants, the children and grandchildren of the testator, other than Mrs. Yearance (naming them), or any of them, and, if there be such liability, what and how much and how chargeable, payable, and distributable between said defendants, and that such order or decree may be made in the premises as may be conformable to equity and good conscience." No appeal was taken from this decree as not made in con formity with the opinion of the Court of Er rors and Appeals, but such objection is now made by the defendants upon the hearing before me, pursuant to the final decree. The further objection is made that the first final decree entered in June, 1896, directing Mrs. Yearance to pay the entire amount claimed. and failing to direct any payment by any other defendant, is a final decree adjudicating in favor of the other defendants the claim now made.

Other defenses are raised, viz.: First, that

under established practice no decree at all can be made on the proofs other than a decree against Mrs. Yearance for specific performance of a contract to convey the Brunswick Street lot; and, second, that the proofs taken fail to establish any legal promise or liability on the part of the defendants, other than Mrs. Yearance, the proofs being purely oral and therefore of no effect or validity under the statute of frauds and the statute relating to wills. No proofs have been taken on this hearing other than those taken on the original hearing before Vice Chancellor Reed, and considered by him and by the Court of Appeals. On behalf of Mrs. Yearance, it was suggested at the argument that the decree on remittitur was inequitable as against her, in that it directed the payment of the entire sum of $1,500 and interest out of the income payable to her, instead of out of the principal invested for her benefit for life.

John R. Hardin, for complainant. Francis Child, for defendants.

EMERY, V. C. (after stating the facts as above). On the questions argued or stated at the hearing before me, I reach the following conclusions:

First. As to the defendant Mrs. Yearance, the decree entered on remittitur in this case is, for the purposes of this hearing, a final decree as to the character and extent of her liability, and of the liability or charge upon the share of, or interest in, the Randall estate to which she is entitled.

Second. As to the defendants other than Mrs. Yearance, the original final decree of the Court of Chancery, directing that the whole amount claimed by the complainant be charged upon the share of the defendant Yearance in the Randall estate, is not a final adjudication in favor of the defendants other than Mrs. Yearance, whose shares in the estate were sought to be charged. There was no dismissal of the bill as against these defendants other than Mrs. Yearance, claiming interests in the Randall estate, nor was there any decree discharging the executors from any payments other than out of Mrs. Yearance's share. In the absence of any express adjudication or decree in favor of the other defendants by dismissal of the bill as to them, or otherwise, any discharge of these defendants from further liability on the bill could only be indirect or by way of inference from the decree, and was subject to any change or modification which might be made on appeal from the decree.

As to the modifications of the decree which were made by the Court of Errors and Appeals, I must take the final decree entered January 18, 1904, on remittitur, on notice to all parties, as conclusive for the purposes of this hearing. Inasmuch as the defendants other than Mrs. Yearance were not made parties to the appeal and were not heard in that court as to the reversal of the decree in

chancery, or the form of decree to be entered on appeal, the decree of January 18, 1904, is probably, as to them, only an interlocutory decree made before final hearing and in the course of this suit, and as such, under our practice declared to be settled in Pennington v. Todd (Err. & App. 1890) 47 N. J. Eq. 569, 21 Atl. 297, 11 L. R. A. 589, 24 Am. St. Rep. 419, may be subject, after final decree on this hearing, to review by the Court of Errors and Appeals, in respect to its being a proper construction of its opinion. Even as to parties to the appeal and bound by the decree on appeal, the rule is that a second appeal will lie to bring up proceedings subsequent to the mandate on remittitur, and this may involve the question whether the decree follows the direction of the appellate court. 2 Foster, Fed. Prac. (3d Ed.) § 519, citing, inter alia, Stewart v. Salamon (1878) 97 U. S. 361, 24 L. Ed. 1044, where Chief Justice Waite says on the subject: "An appeal will not be entertained by this court from a decree entered in the circuit or other inferior court, in exact accordance with our mandate upon a previous appeal. Such a decree, when entered, is, in effect, our decree, and the appeal would be taken from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and, if it conforms to the mandate, dismiss the case, with costs. If it does not, the case will be remanded with appropriate directions for the correction of the error." This review on second appeal, for the purpose of correcting any error of the subordinate court in entering the decree on the mandate, is specially necessary in cases like the present, where the remittitur on appeal did not expressly state the terms of the decree, but directed that it be entered in conformity with the opinion filed. There can be no question, I think, that the defendants not parties to the appeal may by appeal question the correctness of the decree entered on remittitur, if it is claimed to affect them. The general rule is that all parties to the record who may be affected by the reversal of a decree should be made parties to the appeal. Davis v. Mercantile Trust Co. (1893) 152 U. S. 590, 593, 14 Sup. Ct. 693, 38 L. Ed. 563, and I think that, if application had been made, the Court of Appeals might have required the defendants other than Mrs. Yearance to be made parties, for the reason that as the decree directed that she should pay the whole amount originally claimed by the complainant from all defendants, and the complainant, who was entitled to but one payment, did not appeal from that decree, their interests would or might be affected by any reversal or modification which would leave the complainant free to further pursue them, as she has now done. But the question of necessary parties on any appeal is one for the final judgment of the court of appeal, and the only practical effect of a decision in appeal, without all the parties in

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