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tables of mortality or otherwise, of the boy's, The objection to this cross-examination was expectation of life, none in a trial to the properly overruled. The defendant was not court was needed, for judicial notice could an insurer of the safety of those undertakbe taken of the probability which such tables ing to walk up the truss. It was not bound disclose. 17 Amer. & Eng. Ency. of Law, to guard it at any cost. It was bound to tit. “Judicial Notice," p. 900. It is to be guard it within reasonable limits, and in depresumed, in support of the judgment, that termining those limits the expense of adoptthe court found that his net earnings annu ing another mode of stringing the wires was ally after he would have come of age would a legitimate subject of consideration. have exceeded the amount of the interest Another expert was introduced by the dewhich could probably during the same pe- fendant, who had inspected the line over the riod be obtained on $5,000; for otherwise the bridge in 1902. The defendant claimed that judgment would amount to an annuity, it was then in the same condition as at the equivalent to such earnings, in perpetuity. time of the accident, except as to one small It is also to be presumed that due allowance section. As a preliminary to showing by was made for the anticipation of these earn him that it was properly constructed as it ings by force of a judgment which was pay stood in 1901, he was asked to describe it as able immediately. The evidence, which has it was when he saw it, except as to the parbeen included in the record under the provi- ticular section which it was admitted had sions of Gen. St. 1902, § 797, discloses no been changed. The court excluded this incause for correcting the finding, in any of quiry, and did not exceed the limits of its the particulars requested by the appellant. discretion in so doing. The evidence sought

The superintendent of the defendant com was remote in character; corroborative at pany, having been qualified as an expert, best; and the same object could have been testified in chief that he constructed its line, attained by a hypothetical question, based on and had the pole at the side of the draw the testimony of those witnesses who had denearest to the point where the boy was killed scribed the arrangement of the line in 1901. bolted to the piling of the bridge. He was There is no error. The other Judges conthen asked his reason for doing so, rather curred. than for setting it out in the stream. Objection being made, the reason was claimed as tending to show that it was put in a prop

(75 Conn. 501)

BATES v. SPOONER et al. er place; but the court excluded the evidence. The duty which the defendant owed, (Supreme Court of Errors of Connecticut. in constructing its line, to regard the safety

March 4, 1903.) of those using the bridge for bathing pur PERPETUITIES-WILLS-REMAINDERS-CON

STRUCTION OF WILL-VESTING poses, required it to use reasonable care to

OF ESTATE. select a proper location for this pole. The

1. Where the question is whether, under a will, witness should, therefore, have been allow

an estate has vested, so that there will not be a ed to state the reason which governed its violation of the rule against perpetuities, the fact action in that respect. The record of the

that the legal estate vested on the death of tesevidence, however, shows that immediate

tator in his executors is immaterial, since the

law seeks out the beneficial estate, and demands ly after this ruling of the court the witness that it shall vest within the prescribed period. was asked whether, on the day of the in 2. The rule against perpetuities does not dejury to the plaintiff's intestate, the entire

mand that the particular individuals in whom an

estate must be vested shall be definitely ascerline was in all respects properly constructed,

tainable at testator's death, but it is enough if it and gave an affirmative answer. Under is certain that they be definitely ascertainable Gen. St. 1902, § 797, it is proper for us to

within the period limited after that event.

3. Where a will directed that the property of examine the whole record in disposing of this

the estate be held in trust for the support of tesassignment of error, and the question and tator's children, and the maintenance of "any answer thus admitted are found in the state family" which either of them might have, until ment of the evidence, though not in the spe

such time as, by the terms of the will, there

should be a division and distribution of the escial finding of the court. In view of that

tate by the terms of the will, the provision as to answer, no substantial harm can have been the families of the children being naturally referdone by the exclusion of the preceding ques

able to the education of their children during tion.

minority, such trust could not endure beyond 21

years and 9 months after the death of the surThe same witness, having testified in chief

vivor of the children, and could not violate the that the cross-arm on the pole above describ rule against perpetuities. ed was 15 feet lower than that on the pole

4. Where å will directed that the property of

the estate should be held in trust for such time standing next in the line on the same side

as the trustees should deem most expedient in orof the draw, and that this was done to lessen der to secure the best value for the property on a the strain on the former and the risk of the sale thereof, and that after such sale it should falling of the wires in a high wind, was

be divided, and a certain share given to the

daughter and her heirs forever, the bequest and asked on cross-examination as to what would

remainder to the daughter vested at the time of have been the expense of putting in an in testator's decease. termediate pole to reduce the strain, and then

5. A will directed that, on conversion of the elevating the wires across the draw, and

real estate into personalty by the trustees, it

should be divided into certain parts, and that replied that it would have cost about $60. each part should be held in trust for a son, and

34 A.-20

on the death of either of the sons his share to support and education of any family which go to his children, if any, or their legal repre either of them may have until such time as sentatives, but that, on the death of either without children, one half should go absolutely to a

by the terms of this will there shall be a disister, and the other half to become a part of vision of my estate." He directed his "exthe active trust in favor of the other brother. ecutors and their successors in said trust" to Held, that there was nothing violating the rule against perpetuities, since the remotest of the

sell and convey all his "real estate and conremainders must vest on the death of the sur

vert the same into safe investments" as soon vivor of the brothers.

after his decease as it could "be done in the 6. Where a will provided that the residuary es exercise of their best business judgment." tate should be held in trust for children until such time as the trustees should determine it

He then proceeded as follows: “It is my could be sold to the best advantage, and remain especial request that after a sufficient sum ders were then created, on an issue as to when shall have been obtained from my estate for the remainders vested it was immaterial whether the bequests in remainder carved out of the re

a very comfortable support and maintenance siduary estate would only be ascertainable when of my daughter and sons, that the sales of the conversion was fully accomplished, since the balance of my property be not pressed the vesting of an estate is not deferred by such

upon the market as it may take several years contingencies. 7. Testator's will provided that his real estate

to dispose of the estate advantageously. should be held by trustees until such time as they

Therefore I trust that great patience and should determine the estate could be sold to the care will be exercised by my executors in the best advantage, and then sold, and remainders

management and disposition of the same. At to his children were created. A creditor of one of the remaindermen sued in equity to subject

such time as this shall have been fully accertain lands to his execution on the ground complished and my real estate having been that the will was void under the rule against per: entirely sold, my estate shall be ready for dipetuities, inasmuch as the conversion of the real estate might not be completed until more than

vision; if my estate shall then amount to 21 years. Held that, as to plaintiff, the question the sum of $300,000, three hundred thousand whether the conversion might not be completed dollars, I direct my said executors to pay until after the lives of the children and the lapse

therefrom to my niece, Elizabeth K. Patterof more than 21 years thereafter was immaterial, as equity would regard the conversion as

son, wife of Robert, of Middletown, Connectimade.

cut, if living; and if she be deceased at that 8. If the possible postponement beyond the time, to her heirs at law, to be divided among period of 21 years would invalidate the provisions

them as if the same were her intestate esas to remaindermen, inasmuch as their equitable title must vest within that period, it was not tate, the sum of five thousand dollars ($5,their estates, but the direction for a conversion, 000).” Should his estate then amount to that would fail.

$150,000, legacies were left to Catherine Case Reserved from Superior Court, Fair Towne and Lillian Gay, after which came field County; Edwin B. Gager, Judge.

this provision: “When the above directions Action under Gen. St. 1902, § 4053, by Rob shall have been carried out and my indebtedert W. Bates, an execution creditor who had ness shall have been fully paid and my real levied on certain real estate as that of de estate sold and converted into approved sefendant Charles W. Spooner, against him and curities then subject to the said conditional others, to establish and ascertain bis title. legacies to Elizabeth K. Patterson, Lillian Reserved on a finding of the facts for the Gay and Catherine Towne, I direct my said advice of the Supreme Court Judgment ad. executors or their successors in said trust at vised for defendants.

that time to divide my entire estate, as it

shall then exist, into twenty-four equal parts Robert E. De Forest, for plaintiff. Good

and their division into these parts, as well as win Stoddard and William B. Boardman, for

their allotment of said parts among my childefendants Morris B. Beardsley and Fred

dren shall be final and binding upon all parerick Hurd.

ties in interest. I then give and bequeath

ten of these said parts to my daughter Lily BALDWIN, J. Thư plaintiff claims. title T. Spooner, to her and her heirs absolutely under a levy of execution against Charles W. and forever. I give and bequeath to my said Spooner on an undivided third interest in cer executors, or their successors at that time, tain lands vested in him as an heir at law of seven of said parts, in trust, nevertheless, for Clapp Spooner, who died in 1899. The will the following uses and purposes, to wit, to of Clapp Spooner purports to dispose of the take, hold, invest and reinvest the same and lands in question, but the plaintiff insists that pay over at such times and in such sums as this disposition is void, and so that an un they may deem that circumstances require divided interest in them descended as intes such portions of the net income therefrom as tate estate to Charles W. Spooner.

they may think best to or for the mainteThe testator, by a residuary devise, gave nance and support of my son, Charles W. these lands to his executors in trust, to hold Spooner, during his natural life. Upon his and manage, paying from the income, or pro decease, should he leave him surviving a ceeds of sales, to each of his three children, child or children, this trust shall thereupon who were his sole heirs at law, "such sums cease, and the principal of said trust fund, as they, my said trustees, may deem neces together with any accumulated interest theresary for the maintenance and support of my on, I give to such child or children absolutely said children and for the maintenance and to be divided among them as if it were the

ers.

intestate estate of said Charles W. Spooner. as to postpone the vesting of the remainders Should my said son, Charles W., upon his beyond the period permitted, because, by its decease leave no issue or the representatives reference to their families, the will provides of children deceased, and in such event, for the education of those yet unborn. The should my daughter, Lily T., and my son, provision is naturally referable to education Harry C., both be living, then I give one of their children during minority, and to be half of principal and accumulated interest of construed as thus limited. St. John v. Dann, said trust fund to said Lily T. absolutely; 66 Conn. 410, 404, 34 Atl. 110. This trust, and the other one-half I direct said trustees therefore, could under no circumstances ento take, hold and manage in the same man dure beyond 21 years and 9 months after the ner as is hereinafter in' this will provided in death of the survivor of the testator's chilthe case of the trust created for the benefit dren. of the said Harry C. But if, in the event It is next urged that all the real estate of the death of my son Charles W., without may not be sold within a life or lives in be. issue or the representatives of children de ing at the testator's death and 21 years aftceased, my daughter, Lily T. should not be erwards, and that until all has been sold the living, then I give at such time the one-hall remaindermen cannot be ascertained. So far of said trust fund and accumulated interest as the provision in remainder for Lily T. that said daughter would have received, if Spooner is concerned, 10 of the shares into living to her heirs at law, to be divided which the estate is, when ready for distribuamong them as if it were her intestate es tion, to be divided by the executors or their tate; and it upon the decease of my said successors in the trust, are "then” bequeathson, Charles W., without issue or the repre ed to her absolutely. To this disposition the sentatives of children deceased, my son, Har testator, in the final clause of his will, thus ry C., should not be living, then I give at refers: “I wish to place on record my reasuch time the one-half of said trust fund and son for giving to my daughter, Lily T., a accumulated interest of which said son somewhat larger portion of my estate than I would have received the income, If living, to have herein given to my sons, and that is, his heirs at law to be divided among them as that she has given the best part of her life if it were his intestate estate.” The remain to my interests as well as those of her brothing seven parts were disposed of in a precise Should either of my children or their ly similar way, mutatis mutandis, in favor of representatives take any action to prevent his other son, or his next of kin. At the the probate of this will or the carrying out time of the testator's death, no child was of any of its provisions, he shall forfeit all married, and none of them have since mar interest under this will and receive no part ried.

of my estate." Looking at the will as a The plaintiff claims that the will contra whole, and to its paramount intent to provenes the common-law rule against perpetul- | vide for the testator's children, as the main ties. That the legal estate vested, upon the object of his bounty, it is apparent that he death of the testator, in his executors, is, in meant the absolute bequest in remainder to respect to this point, immaterial. The law his daughter to vest in right at the time of searches out the beneficial estate, and de his decease. Farnum v. Farnum, 53 Conn. mands that this shall vest within a life or

278, 279, 281, 2 Atl. 325, 5 Atl. 682; Newlives in being and 21 years (or, as the case

berry v. Hinman, 49 Conn. 132; Johnson v. may be, 21 years and the period of gestation) Edmond, 65 Conn. 492, 499, 33 Atl. 503. In thereafter. It does not demand that the par respect to the contingent remainders expect. ticular individuals in whom it must thus be

ant upon the termination of the life estates vested shall be definitely ascertainable at the

of the sons, his intent is equally apparent testator's death. It is enough if it is certain

that none of them should become vested ones that they will be definitely ascertainable

until the decease of one of the sons, nor all within the period limited after that event.

of them until the decease of both. Upon the The plaintiff contends that the will disre

first of these events, the seven shares in gards this limitation, and does not contem

wbich the son so dying had bad a life estate plate the vesting of any beneficial interest in

were to vest eltber (1) in his children, if any, the corpus of the residuary estate until the him surviving absolutely; or (2) in his chilexecutors divide it into shares and make an

dren, if any, him surviving, and those who allotment of them. In support of this con

may then be the legal representatives of any tention, he urges, irst, that the trust inter

deceased child of his, per stirpes, absolutely; posed for the maintenance of the three chil

or (3) one-half absolutely to Lily T. Spooner dren pending the sale of the real estate, and

or her heirs at law, and one-half on an active for the support and education of any family

trust for the life and benefit of Harry O. which either may have, may endure so long Spooner, with remainder to his (Harry's)

heirs at law, absolutely. Unless, then, the *This fact did not appear upon the record, but, delay allowed for the conversion of the realon inquiry by the court, was admitted by coun ty into personalty can avail to postpone the sel on both sides, who agreed and requested that it should be taken into consideration, if

vesting of these remainders, the remotest of deemed of any materiality in the disposition of

them must become vested on the death of the cause

the survivor of the two brothers. Should

the first to die leave surviving descendants, Thorndike, 139 Mass. 101, 102, 28 N. E. 575. they take, upon his death, an absolute title. If it be possible, the result, as respects the Should he leave none, half of the seven claim of the plaintiff, would be the same, shares goes absolutely to his sister, if she and for two reasons: (1) The will makes an be then living, and, if she should not be then equitable conversion. Equity-and this is an living, to those who upon her decease were equitable action-regards the conversion, for her heirs at law; while the other half, sub all purposes of succession, as if it were comject to a beneficial life estate in his brother, pletely effected at the testator's decease. goes absolutely to those who upon the lat Duffield v. Pike, 71 Conn. 521, 526, 42 Atl. ter's decease may be his heirs at law. It is 641; Underwood v. Curtis, 127 N. Y. 523, 28 immaterial that whether the bequests in re N. E. 585; Henderson v. Henderson, 133 Pa. mainder will cover the entire residuary es 399, 19 Atl. 424, 19 Am. St. Rep. 650. That tate or not can only be ascertained when the time for the division of the estate into the conversion is fully accomplished, because shares for allotment was not to arrive until until then it will be uncertain both whether the conversion had been made in fact did the net income will suffice for the support of not, therefore, defer the time or times when the children and their families, and whether the right of any legatee to benefit by the allotthe conditional legacies are to be deducted. ment would otherwise become a vested one. The vesting of an estate is not deferred by (2) If the period allowed for conversion can be contingencies of such a nature, which af.

construed as possibly exceeding the lives of fect only its amount or value. Mallory V. the children and 21 years thereafter, and if Mallory, 72 Conn. 494, 500, 45 Atl. 164.

the possible postponement beyond that peIt remains to consider whether the testa

riod of the vesting of possession in the retor's intent is to be defeated on account of

maindermen, consequent upon that construcbis directions as to the length of time dur

tion of the will, would invalidate the proviing which the executors and their successors

sions in their favor, then, inasmuch as their in the trust may retain the title to the re

equitable title must vest within that period, siduary estate for the purposes of conversion.

it is not their esta tes, but the direction for a In applying the common-law rule against

conversion, that would fail. Gray, Reperpetuities to estates in remainder, the or

straints on the Alienation of Property, 97. dinary rule is they must vest within the pe

The superior court is advised that the trust riod prescribed, not only so far as to be ca

provisions in the will of Clapp Spooner do pable of alienation and the subject of suc

not contravene the rule of law against percession by inheritance, but so absolutely as

petuities. Costs will be taxed in this court to make it certain that the remainderman

in favor of the defendants. The other will come into possession immediately upon

Judges concurred.
the determination of the preceding estate.
Johnson V. Edmond, 65 Conn. 492, 499, 33
Atl. 503. A possession, however, for anoth-

(204 Pa. 123) er, is his possession. The executors were to

MCFARLAND V. CONSOLIDATED TRAChold their title, and to retain possession for

TION CO. a longer time than that customarily occupied in the settlement of an estate, for the (Supreme Court of Pennsylvania. Jan. 5, sole benefit of the testa tor's children, and of

1903.) those entitled in remainder. It is possible STREET RAILROADS_USE OF TRACKS that all of his children may die before the

EVIDENCE. conversion of the residuary estate into per 1. Though a street car company has a supesonalty has been completed, and so before rior right to use its tracks, it does not forbid any division into or allotment of shares has

their use by the public so as to render a persou

placing himself or his horse and vehicle on the been made. But had they survived their fa iracks for any legitimate use of the street a ther only a day, the will would still have trespasser. made a valid disposition of the residuary

2. Plaintiff was unloading a piano from a estate. The estate of the daughter would

wagon, and waited for two street cars to pass,

and then backed his wagon against the curb have immediately succeeded to her interest, with the horse standing on the tracks. He namely, to the 10 shares to be received when sent a man dowu the street to signal any car ever the executors should be ready to make

that might approach. One came, without giv.

ing any warning, at an unusual rate of speed; the allotment; and the remainders and cross

and although the motorman had an unobstruct. remainders in the other shares would also ed view for three or four squares, and was giv. have then become vested in right, the time en a notice to stop, he struck the horse and of enjoyment only being deferred. Cropley

wagon, injuring plaintiff. Held, that a verdict

for plaintiff would be sustained. v. Cooper, 19 Wall. 167, 176, 22 L. Ed. 109; Johnes v. Beers, 57 Conn. 295, 303, 18 Atl. Appeal from Court of Common Pleas, Alle. 100, 14 Am. St. Rep. 101.

gheny County; McClung, Judge. It is unnecessary to determine whether it Action by W. T. McFarland against the can be regarded as possible that the conver Consolidated Traction Company. Judgment sion may not be completed till the lapse of for plaintiff. Defendant appeals. Affirmed. more than 21 years. See Belfield v. Booth, Argued before MITCHELL, DEAN, FELL 63 Conn. 299, 27 Atl. 585; Brandenburg v. BROWN, MESTREZAT, and POTTER, JJ.

James C. Gray and Clarence Burleigh, for of the jury has established the facts as preappellant. L. K. Porter and S. G. Porter, sented by the plaintiff. for appellee.

In their printed brief of argument the

learned counsel for the defendant attempted MESTREZAT, J. This is an action to re to show that the plaintiff's witnesses were cover damages for personal injuries which not credible, and that his testimony was unthe plaintiff alleges be sustained by reason worthy of belief. We must remind them of of the negligence of the defendant company. what they well know, that their argument On the evening of March 29, 1900, the plain should have been, and doubtless was, pretiff was engaged with a one-horse transfer sented in another forum, and that the verwagon in removing a piano, weighing about dict of the jury, whose province it was, has 1,200 pounds, to the residence of Mrs. Esch settled the question against their contention. allier, 157 Larimer avenue, East End, Pitts It is argued very strenuously that the plainburg. He drove to the avenue, in the vicin tiff was clearly guilty of contributory negliity of the place he was to deliver the piano, gence, and hence the learned trial judge and, having waited for two street cars to should have directed a verdict for the depass, be backed the wagon against the curb, fendant company. The determination of this its rear standing at right angles with and question requires a brief reference to the against the curb, with the horse standing material facts as found by the jury. After diagonally across the street car track with the plaintiff arrived in the avenue near the its head in the direction of Everett street. Esclallier residence, and before he began to With the assistance of three other men the discharge his load, he waited until two cars plaintiff began to remove the piano from the had passed and no other car was in sight. wagon, and when it was "half way off" a He looked and could see "as far as the eye car of the defendant company coming from would carry" in the direction in which a car the east on an ascending grade struck the must come, and in order to protect his horse horse and shaft and caused the wagon to and wagon from a possible collision be sent move, throwing the piano on the plaintiff a man in that direction to signal any car and severely injuring him. Larimer avenue that might approach. Having taken these is 25 feet between curbs, and there is an as. precautions, and knowing that the motorman cending grade from Everett street to the if running his car at the usual speed could place of the collision, a distance of about 120 see the horse and stop without danger of a feet. There is a single car track on the ave collision, the plaintiff placed the rear of his Due, 9 feet 10 inches from the curb, on which wagon against and at right angles with the the defendant company runs its cars in curb, the horse necessarily on the car track a westerly direction.

and standing diagonally across it. The piano, On the trial of the cause in the court be the object to be removed from the wagon, low the learned judge, in a charge clear and was heavy, and it was dangerous to underadequate, submitted the question of the de take to remove it by lifting it over the side fendant's and plaintiff's negligence to the ju of the wagon while it was standing parallel ry. The verdict was in favor of the plaintiff. with the curb. It was the universal custom, and from the judgment entered thereon the under these circumstances, to unload pianos defendant has taken this appeal. The prin from the rear of the wagon as it stood against cipal and important error assigned is that the the curb. court erred in not affirming the defendant's These facts did not warrant the court in point "that under all the evidence the verdict | declaring the plaintiff guilty of negligence should be for the defendant."

and directing a verdict for the defendant If the testimony of the plaintiff was worthy company. On the contrary, they fully justi. of credence, the jury was justified in finding | fied the jury in the conclusion that he had that the defendant's motorman was guilty performed his duty and had exercised proper of negligence which occasioned the plaintiff's care under the circumstances. The size of injuries. At the time of the accident it was the piano and safety in its removal required light, and he had an unobstructed view of it to be unloaded from the rear end of the the horse and wagon for three or four wagon. The position of the wagon neces. squares. When the car was approaching the sarily placed the horse on the car tracks. place of collision, and distant therefrom at The plaintiff, therefore, had the right to ocleast 110 feet, the motorman, who could, and cupy the tracks while unloading the piano, presumably did, see the horse on the track, provided he did so with no unnecessary delay, disregarded a notice to stop which he heard, and with proper precautions to prevent a although, according to his own testimony, he collision with an approaching car. That he could have stopped his car within 30 feet. exercised care while occupying the track is At the time of the accident the car was run. apparent from all the facts, especially from ning at twice its usual or ordinary speed, the fact that he had the motorman signaled and no warning of its approach was given. to stop at a point sufficiently distant to stop We agree with the learned trial judge that if the car in time to avoid the accident. Had these were the facts "there would be little the motorman heeded the signal thus given difficulty in determining that this was the him, the collision would not have occurred. grossest kind of negligence." The verdict Nor was the plaintiff, under the circumstan.

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