nate conclusions, or one which, having re gard for them, would point out a way of escape from the reach of the statute. The meaning of the court was too clearly expressed to be misunderstood, and its adjudication must be accepted as that above outlined. Such being the case, effect ought to be given to it as made. somebody at some time of the right to them declared premises, reasoning, and subordifor the future, that it was the intended meaning of the court that the payments as they should accrue were to be made to that group of persons, whoever they might be, who at the time each payment became due represented the distributees of the deceased child's intestate estate as determined at that time, and in such proportions between them as the statute would point out. In view of what has been said, it is unnecessary to give categorical answers to certain of the questions propounded in relation to this general subject, and it is perhaps superfluous to return a specific negative to the inquiry as to whether the right to these annuities, or portions of them, for the future, forms any part of the estate of the reciplent, subject to being disposed of by will, or to descend and be distributed among his next of kin in the event of his death intes One necessary result of this conclusion is that the widow of a deceased child would be a member of the family group of beneficiaries substituted for the deceased, since she would be a distributee of his intestate estate. Suppose, however, that one of the testator's children should die leaving a widow surviving him, but no lineal descendants. The opinion makes no express statement as to this situation, concerning which we are asked to advise, nor any statement from tate. The necessary consequence of the forwhich it can be gathered with certainty mer judgment, as we have construed it, is what the intended meaning of the court was that no annuitant acquires a property right in its use of the term "family," as applied which is transmissible by will or descent, or to such a situation. It would appear, how-one which is alienable for a period longer ever, from its premises and reasoning, as than his life. The right which is his to enwell as from a passage upon a closely relat- joy during his lifetime is one which passes ed subject, that the conception of the fami- upon his death, by virtue of the operation lies of his children which the testator would of the will of Mr. Farnam, to those theremost naturally entertain under such condi- after entitled to its enjoyment. tions was that of the court, to which it intended to give effect, to wit, that in such case the surviving widow, as the only representative of the family group of which the deceased child would be regarded as the head, would be entitled to receive the entire amount of the annuity which her husband, while living, enjoyed. Such is the construction to be given to the former judgment, should the situation indicated arise. Another consequence attends the conclusion that the group of persons entitled to participate in the enjoyment of these annuity payments in substitution for a deceased child is made up of and confined to those who for the time being could qualify as distributees of intestate estate of the deceased, and that is, that the surviving widows and husbands of persons whose right to enjoy the benefit of the payments is substitutionary are In that capacity excluded. It must, of course, be admitted that if the will were now before us for the first time that we should be unable by reason of the statute against perpetuities to give it the effect thus indicated. For this reason we should doubtless feel constrained to give to the language of the former opinion some interpretation which would avoid the prohibition of the statute as we now understand its application, if its intended meaning was less certain and less distinctly announced, and there appeared some reasonable construction which would lead to that result. But we find it alike impossible to arrive at an interpretation, other than that stated, of the language in which the ultimate conclusions of the court are couched which consists with its These conclusions render it necessary to give our advice in response to questions as to whether or not these annuities are apportionable, and if so, upon what basis the apportionment should be made. The will provides that the payments of the annual sums are to be made quarterly. It is the accepted rule in this state that annuities are not apportionable except under two conditions, neither of which is present in this case. Tracy v. Strong, 2 Conn. 659; Mower v. Sanford, 76 Conn. 504, 507, 57 Atl. 119, 63 L. R. A. 625, 100 Am. St. Rep. 1008. One who has received, or by the terms of the grant or obligation has become entitled to receive, payment of a stated portion of the annual sum when the event which terminates the right to an annuity happens, is, of course, entitled to retain or receive that portion as an amount then payable. But he has no right to any further amount, although time may have run upon the period which is to elapse before another payment would be due. When the conditions are such as they are here, that the annuity continues to be payable to other parties after the death of a beneficiary, the right to receive any payment, and the whole of it, accruing after such death, inures to those who in the established course of succession become entitled to payments made as of that date. The questions presented relating to the division of the two-thirds of the net income accruing after the period of 10 years succeeding the death of the testator had elapsed, as provided in clause 4 of article 4, were for the most part not passed upon, or only indirectly passed upon, in the former opinion, or determined by the judgment then render- that presumption, so that if his language is ed. The language of the clause makes it susceptible of two reasonable constructions, clear that the gifts of this income first be- one of which is in contravention of the law, gan to operate beneficially 10 years after the and the other not, the latter will be prefertestator's death, and that those who were red. St. John v. Dann, 66 Conn. 401, 405, then to become the beneficiaries of them 34 Atl. 110; Wolfe v. Hatheway, 81 Conn. were the children of the testator who should 181, 185, 70 Atl. 645. The testator made no then be living and the "legal representa- provision for a gift over after the death of tives" of any child then deceased, as standing any of the persons designated as the first in the place of the deceased child, and tak-recipients of this income, and none whatever ing what it would take, if then living. With for such a contingency. And yet he must respect to this language and its construction have known that such an one would occur, and effect, it was adjudged (1) that these gifts of net income were in addition to the annuities, and (2) that by "legal representatives," as used in the clause, was meant those who would take under the statute of distributions. There was therefore an express and explicit adjudication as to the precise persons who would be the beneficiaries of the income payments under this clause, when the time should come when they were to be first made. This adjudication involves one that in the division of that share which would have belonged to a deceased child, if living, the persons entitled to it would take in proportions to be determined by the statute, and that such a division and appropriation would not be one forbidden by law. This adjudication also involved as an inevitable consequence that the takers of a deceased child's share would include widows and surviving husbands as well as heirs, more strictly speaking. Their status as persons entitled to take in the distribution of intestate estate is as fixed and certain as is that of any other person. This the former opinion expressly recognized. So far there is nothing left for us to independently determine. The former adjudication, however, stopped here, and did not attempt to deal with the possible conditions of any after time, and to declare what would follow upon the death of any person whose right to participate in the division of this income at the expiration of the 10 years had become fixed by the expiration of that period and the family situation, as it then was. Already the death of a child who survived the 10-year period has given a present significance to certain questions which were not answered before, and the superior court is asked to advise as to the operation of the will under the new and anticipated conditions, with which neither the opinion nor the judgment in the former case had occasion to specifically deal. and quite possibly often occur, before the trust would in the natural order of events terminate. He must therefore have supposed that the effect of his language would be to vest in each of the original recipients of the income, as determined at the end of the 10-year period, the right for the whole remaining term of the trust to that share of it, as it might from time to time accrue and become payable, which became his at the end of said period, or that its consequence would be that the death of any one of the original recipients would put an end to the payment to anybody of that portion of the income which had been his, or that his provision was such that the right to the enjoyment of the accruing income as time went on, and family conditions changed, would pass in succession in some way from one person or generation to another, until the trust which might well continue for 50 years or more should cease. The statute against perpetuities forbade the accomplishment of the last of these results. It is inconceivable that the testator sought to achieve the second, with its certain inequalities of the gravest character. The intention of the testator, apparent upon the face of the will, and declared in the former opinion to lay at the very foundation of all its provisions, is prohibitive of any such conclusion. The first has reasonable support in the language of the testator, and accomplishes results which are equal and impartial as to all branches of his family and their members, and in so far as appears in harmony with what he intended. We are of the opinion therefore that this is the construction which should be given to it, with the result that the right to have and enjoy, during the whole remaining term of the trust created by the will, one-fifth of the net annual income provided to be paid over by the trustees after the 10-year period should have elapsed became vested in each of the four children of the testator who survived the 10-year period as his or her vested estate, alienable, transmissible by descent, and sub In determining these unadjudicated questions we do not feel at liberty to be unmindful of the statute against perpetuities, and the construction which as the result of re-ject to disposition by will, and that the right peated decisions is now given to it. While bound to thus recognize the statute in arriving at our independent conclusions, we are also required to apply to the construction of the testator's testamentary provisions the presumption that they were not violative of to have and enjoy in like manner, to the same extent, and with the same incidents, one of said equal parts became vested in the “legal representatives,” as defined, of George B. Farnam who did not survive the 10-year period, to wit, in his widow, now deceased, ing, and his only issue, and in such propor-| Webber, 65 Conn. 501, 514, 33 Atl. 506. In tions between them as the statute of distri- the former opinion it was said that the right butions would determine. This conclusion renders it unnecessary to answer specifically all the various questions propounded in relation to this subject. It follows, of course, that the right to one of the one-fifth portions of the two-thirds of the net income annually distributed was vested in Charles H. Farnam, Sr., at the time of his decease, that it thereupon formed a part of his estate, that it was subject to disposition by his will, and that, failing such disposition, it was to be administered and distributed as his intestate estate. and interest vested in the grandchildren was one which could only be defeated by their death, during the continuance of the trust, leaving no widow and no children, and that this was clearly a condition subsequent. In the judgment the statement assumed the affirmative form, and was to the effect that in case of the death of any of the grandchildren before distribution without children and leaving no widow, the title of such grandchild would divest. The statement of the opinion from which that in the judgment was derived was doubtless made inadvertently, in the course of the court's discussion of the subject before it, and with no intent to lay down in positive form a rule of law. We do not discover that counsel advanced any such proposition, and it was not discussed by the court. It related to a matter purely incidental to the subject under discussion, and did not concern any situation before the court. Evidently the language was used casually, and without consideration, and with no thought that a rule of law which might in the future be appealed to as regulating the rights of parties under the will was being formulated. The only reason which, by any possibility, could be advanced in support of the conclusion stated was such as could be found in the provisions for a limitation over contained in the latter part of clause 5. The authorities elsewhere and our own join with reason in asserting the proposition that the failure of a limitation over after a fee leaves an absolute estate in the first taker. Johnson v. Webber, 65 Conn. 501, 514, 33 Atl. 506; Saxton v. Webber, 83 Wis. 617, 53 N. W. 905, 20 L. R. A. 509, note at page 515; Brattle Square Church v. Grant, 3 Gray (Mass.) 146, 63 Am. Dec. 725; Drummond v. Drummond, 26 N. J. Eq. 234; Leonard v. Burr, 18 N. Y. 96, 105. The questions presented as to the division of the principal of the trust fund following the termination of the trust arise from the provisions of article 5. The first portion of this article is as follows: "At the decease of the last survivor of my said children, if my wife shall not then be living, but, if living, then upon her death, this trust shall cease, and I give, devise, and bequeath all the estate which shall then be held in trust under this will to my grandchildren who shall then be living, to be equally divided among them per capita and not per stirpes, and to their heirs forever." By the judgment rendered in the former case it was adjudged that the grandchildren took a vested interest in the property so given, they taking as a class, opening to let in after-born grandchildren. No adjudication was made as to the legal effect of the language of the article which immediately followed. The opinion examined exhaustively the question as to the construction to be given to the language of the first portion of the article, and the conclusion reached was that the gift therein made of this fund was one which vested in the grandchildren at the testator's death. It refrained from passing upon the question whether the attempted gifts over which were contained in the remaining portion of the article were in contravention of Had the judgment not contained its exthe statute against perpetuities, and assign- pression upon this subject we should have ed as a reason for so doing that it was had less hesitation than we have in now asnot one of great practical importance; since, serting what we believe to be the sound the interest being vested in the grandchil- legal principle. Even as it is, since the nardren, their children and widows would take row situation within the purview of that under the statute of distributions. We have expression is one that has never arisen, and now to determine this question, and in case no right adverse to the grandchildren can it is determined that the attempted gifts be said to have accrued under the proposiover, or any of them, to great-grandchildren tion announced, we feel that we ought to and to widows of grandchildren are void, correct the former inadvertent error beto further advise to whom, in what propor- fore harm can come by reason of it. We tion, and in what manner the property which therefore advise the superior court to adis the subject of the gift or gifts so de- judge that upon the death of the testator clared void will belong. his grandchildren, as a class which would There can be no doubt that these attempt- open to let in grandchildren thereafter born, ed gifts over, whether to great-grandchildren took an indefeasible vested interest in the or to widows of grandchildren, are within | remainder of the trust fund in the hands of the prohibition of the statute, and altogeth- the trustees at the termination of the trust, er void. Tingier v. Chamberlin, 71 Conn. and that this interest was one which would 466, 469, 42 Atl. 718. The failure of the lim- pass by alienation or will, or by distribution, itation over left the prior estate vested in if there was no will. the grandchildren undisturbed. Johnson v. We have no occasion to determine any questions which may have arisen, or may arise, in the course of the settlement of the estate of any deceased beneficiary under Mr. Farnam's will, which grow out of a claimed interest in such estate, and do not concern the operation of the will, or the extent and character of any interest under it. The superior court is advised to render judgment in conformity with the conclusions above expressed. No costs in this court will be taxed in favor of any party. The other Judges concurred. (75 N. H. 502) CITY OF MANCHESTER v. HODGE et al. (Supreme Court of New Hampshire. Hills borough. July 1, 1910.) MUNICIPAL CORPORATIONS (§ 697*)-STREETS -OBSTRUCTIONS-ABATEMENT. Where in proceedings by a city it was determined that defendants' rights in a street were subordinate to the reasonable use thereof by the public, and that their occupation of half of the street impeded travel, plaintiff on there after obtaining an order for removal of the obstructions was entitled to reasonable counsel fees. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 697.*] Transferred from Superior Court, Hillsborough County. Bill for injunction by the City of Manchester against Jeremiah Hodge and others. The subject of the litigation has been transferred to the Supreme Court three times. 73 N. H. 617, 64 Atl. 23; 74 N. H. 468, 69 Atl. 527, and 75 N. H. 166, 71 Atl, 864. After the second decision, on April 6, 1908, the plaintiff moved in the superior court that the defendants be ordered to remove all incumbrances on Willow street maintained by them, and that if the defendants resorted to further litigation in the matter they should be ordered to pay all the plaintiff's further expenses in obtaining the relief sought. The defendants resisted the issuance of the order of removal on the ground that the fact should be determined whether certain articles actually interfered with the travel on the street, claiming the right to occupy the street as they were then occupying it. After the third decision an order of removal was made; and the court allowed counsel fees since April 6, 1908, as costs, subject to the defendants' exception. Exception overruled. George A. Wagner, David Cross, and Taggart, Tuttle, Burroughs & Wyman, for plaintiff. Burnham, Brown, Jones & Warren, for defendants. WALKER, J. Upon the transfer of this case, reported in 74 N. H. 468, 69 Atl. 527, it was determined that "the legal title to onehalf of Willow street, with the right to use the whole of it for any purpose for which a way to the cemetery could be used, at one time was and still is vested in the city as trustee for the public." In effect, the holding was that the defendants' rights in the street were the rights usually appertaining to abutters on a street, and that their occupation of the street or any part of it was subordinate to the reasonable use thereof by the public as a way to the cemetery. The legal rights of the parties to the use and occupation of the street were thus definitely adjudicated, and further litigation upon the subject of the occupancy of the street was rendered improbable and seemed to be unnecessary. Subsequently, on April 6, 1908, in the superior court the defendants resisted the plaintiff's motion that they be ordered to remove all obstructions erected or maintained by them upon the street, the effect of which was to unduly interfere with the use of the way as a street; and the question whether the order should be entered was transferred to this court. Upon the facts disclosed, the court said: "It is found that the defendants have so inclosed and incumbered the street as to prevent all travel upon it. This means, as we understand it, that the defendants not only use the half of the street adjacent to the cemetery for purposes other than travel, but so use the half adjacent to their own premises as to wholly exclude the city from its use, and is equivalent to a finding that the use made by the defendants is inconsistent with the reasonably free use of the street as a way to the cemetery. Therefore, as the case stands, the plaintiff's motion should be granted and an injunction issue accordingly." Manchester v. Hodge, 75 N. H. 166, 167, 71 Atl. 864, 865. It appears therefore that on April 6, 1908, when the plaintiff was seeking for a final order in vindication of its legal rights as already adjudicated, the defendants were so occupying the street, or that part of it adjacent to their premises, as to wholly prevent travel thereon. That such occupation by them was unreasonable and inexcusable is a mild characterization of the fact. The defendants, understanding the situation and the effect of their acts in preventing travel on the street, objected that before an order of removal could be made with reference to the half of the street adjoining their land there should be a trial of the fact, whether certain articles did actually interfere with the travel. But it had already been determined that their occupation of that half of the street impeded and prevented the travel on the street which it would otherwise accommodate, and no evidence is disclosed indicating any attempt on their part to remove any of the obstructions on that side of the street. In other words, the case does not show that they were seeking to do what is reasonable in view of the legal rights and demands of the plaintiff. If any question of real importance should arise as to what encroachments should be removed in order to render the street reasonably free for travel to and from the cemetery, it can be conveniently determined after the defendants, in the exercise of a reasonable judgment, have cleared the street of such obstacles maintained by them as they believe the public travel demands. An itemized specification of the things to be removed might be impracticable. In view of the foregoing facts, we are of the opinion that the court was justified in allowing as costs reasonable counsel fees incurred since April 6, 1908, by the plaintiff in obtaining the order of removal. If the issue is whether the defendants have unreasonably and defiantly prolonged the litigation since that date, we cannot say that the superior court was not justified in finding the fact for the plaintiff. Fowler v. Owen, 68 N. H. 270, 39 Atl. 329, 73 Am. St. Rep. 588; Hersey v. Hutchins, 71 N. H. 458, 52 Atl. 862. Exception overruled. All concurred. (75 N. H. 509) GENEST v. ODELL MFG. CO. (Supreme Court of New Hampshire. Coos. July 1, 1910.) 1. WITNESSES (§ 363*)—TRIAL (§ 121*)-CRED IBILITY. Where a party to a suit calls as a witness a person, a party in interest though not a party of record, this fact may be shown and counsel may comment on it as bearing on the witness credibility; the fact of interest being shown. [Ed. Note. For other cases, see Witnesses, Dec. Dig. § 363;* Trial, Cent. Dig. §§ 294-298, 300; Dec. Dig. § 121.*] 2. TRIAL (§ 132*)-REMARKS OF COUNSEL. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 315; Dec. Dig. § 132.*] 3. TRIAL (§ 121*)-REMARKS OF COUNSEL. Transferred from Superior Court; Coos Personal injury action by Charles Genest against Odell Manufacturing Company. Verdict for plaintiff. Case transferred on defendant's exceptions to remarks of counsel in closing arguments. Exceptions overruled. See, also, 75 N. H. 365, 74 Atl. 593. Remick & Hollis and Alexander Murchie, (Murchie orally), for plaintiff. Drew, Shurtleff & Morris (Morris orally), for defendant. BINGHAM, J. The defendants seek to set aside the verdict for the plaintiff upon exceptions taken to remarks of counsel in his closing argument. The questions thus presented are the only ones that require consideration, as a guardian ad litem has been appointed to take charge of the suit for the plaintiff. 1. Dr. O'Brien, a witness for the defendants, testified upon cross-examination that he was employed to attend the men who were injured at the defendants' mill and was paid for this service by an insurance company. Later, the plaintiff's counsel offered to prove that an insurance company was interested in the defense of the suit; but upon its being suggested by the court that unless that fact ought not to be introduced, the offer was was material upon some issue in the case it This evidence was received without objection. withdrawn. In the argument counsel for the plaintiff said, "Here is Dr. O'Brien; he works for the Travelers' Insurance. Company," whereupon an exception was taken and counsel withdrew the remark, stating to the jury that it was not evidence, and nothing further was said with reference to the matter. As Dr. O'Brien was employed by an insurance company to attend the men who were injured at the defendants' mill,' and this fact was in evidence, it would seem that it would have been competent for the plaintiff to have shown that the insurance company which employed him was interested in the result of the suit, as bearing upon his credibility as a witness. It is common practice, where a party to a suit calls as a witness a person in his employ, to permit this fact to be shown and for counsel to comment upon it, as bearing upon the witness' credibility (2 Wig. Ev. § 949); and it can make no difference that the employer of the witness is a party in interest and not a party of record, the additional fact of interest being shown. The defendants, however, contend that the plaintiff's counsel attempted to state in his argument what he was not permitted to prove by evidence when he said to the jury that Dr. O'Brien worked for the Travelers' Insurance Company; that by so doing he injected into the case (1) that the defendants were insured against accidents by an insurance company, (2) that Dr. O'Brien was employed by that company, and (3) that his testimony was likely to be warped or prejudiced. But these deductions were not made or attempted to be made by counsel, and the jury were not asked to make them. On the contrary, they were told by counsel that what he had said was not evidence and to disregard it. Moreover, it could not be inferred from the statement that Dr. O'Brien was employed by the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |