tables of mortality or otherwise, of the boy's expectation of life, none in a trial to the court was needed, for judicial notice could be taken of the probability which such tables disclose. 17 Amer. & Eng. Ency. of Law, tit. "Judicial Notice," p. 900. It is to be presumed, in support of the judgment, that the court found that his net earnings annually after he would have come of age would have exceeded the amount of the interest which could probably during the same period be obtained on $5,000; for otherwise the judgment would amount to an annuity, equivalent to such earnings, in perpetuity. It is also to be presumed that due allowance was made for the anticipation of these earnings by force of a judgment which was payable immediately. The evidence, which has been included in the record under the provisions of Gen. St. 1902, § 797, discloses no cause for correcting the finding, in any of the particulars requested by the appellant.

The superintendent of the defendant company, having been qualified as an expert, testified in chief that he constructed its line, and had the pole at the side of the draw nearest to the point where the boy was killed bolted to the piling of the bridge. He was then asked his reason for doing so, rather 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 proper place; but the court excluded the evidence. The duty which the defendant owed, in constructing its line, to regard the safety of those using the bridge for bathing purposes, required it to use reasonable care to select a proper location for this pole. The witness should, therefore, have been allowed to state the reason which governed its action in that respect. The record of the evidence, however, shows that immediately after this ruling of the court the witness was asked whether, on the day of the injury to the plaintiff's intestate, the entire line was in all respects properly constructed, and gave an affirmative answer. Under Gen. St. 1902, § 797, it is proper for us to examine the whole record in disposing of this assignment of error, and the question and answer thus admitted are found in the statement of the evidence, though not in the special finding of the court. In view of that answer, no substantial harm can have been done by the exclusion of the preceding question.

The same witness, having testified in chief that the cross-arm on the pole above described was 15 feet lower than that on the pole standing next in the line on the same side of the draw, and that this was done to lessen the strain on the former and the risk of the falling of the wires in a high wind, was asked on cross-examination as to what would have been the expense of putting in an intermediate pole to reduce the strain, and then elevating the wires across the draw, and replied that it would have cost about $60. 54 A.-20

The objection to this cross-examination was properly overruled. The defendant was not an insurer of the safety of those undertaking to walk up the truss. It was not bound to guard it at any cost. It was bound to guard it within reasonable limits, and in determining those limits the expense of adopting another mode of stringing the wires was a legitimate subject of consideration.

Another expert was introduced by the defendant, who had inspected the line over the bridge in 1902. The defendant claimed that it was then in the same condition as at the time of the accident, except as to one small section. As a preliminary to showing by him that it was properly constructed as it stood in 1901, he was asked to describe it as it was when he saw it, except as to the particular section which it was admitted had been changed. The court excluded this inquiry, and did not exceed the limits of its discretion in so doing. The evidence sought was remote in character; corroborative at best; and the same object could have been attained by a hypothetical question, based on the testimony of those witnesses who had described the arrangement of the line in 1901. There is no error. The other Judges concurred.

(75 Conn. 501)

BATES v. SPOONER et al. (Supreme Court of Errors of Connecticut. March 4, 1903.)

PERPETUITIES-WILLS-REMAINDERS-CON-
STRUCTION OF WILL-VESTING
OF ESTATE.

1. Where the question is whether, under a will, an estate has vested, so that there will not be a violation of the rule against perpetuities, the fact that the legal estate vested on the death of testator in his executors is immaterial, since the law seeks out the beneficial estate, and demands that it shall vest within the prescribed period.

2. The rule against perpetuities does not demand that the particular individuals in whom an estate must be vested shall be definitely ascertainable at testator's death, but it is enough if it is certain that they be definitely ascertainable within the period limited after that event.

3. Where a will directed that the property of the estate be held in trust for the support of testator's children, and the maintenance of "any family" which either of them might have, until such time as, by the terms of the will, there should be a division and distribution of the estate by the terms of the will, the provision as to the families of the children being naturally referable to the education of their children during minority, such trust could not endure beyond 21 years and 9 months after the death of the survivor of the children, and could not violate the rule against perpetuities.

4. Where a will directed that the property of the estate should be held in trust for such time as the trustees should deem most expedient in order to secure the best value for the property on a sale thereof, and that after such sale it should be divided, and a certain share given to the daughter and her heirs forever, the bequest and remainder to the daughter vested at the time of testator's decease.

5. A will directed that, on conversion of the real estate into personalty by the trustees, it should be divided into certain parts, and that each part should be held in trust for a son, and

on the death of either of the sons his share to go to his children, if any, or their legal representatives, but that, on the death of either without children, one half should go absolutely to a sister, and the other half to become a part of the active trust in favor of the other brother. Held, that there was nothing violating the rule against perpetuities, since the remotest of the remainders must vest on the death of the survivor of the brothers.

6. Where a will provided that the residuary estate should be held in trust for children until such time as the trustees should determine it could be sold to the best advantage, and remainders were then created, on an issue as to when the remainders vested it was immaterial whether the bequests in remainder carved out of the residuary estate would only be ascertainable when the conversion was fully accomplished, since the vesting of an estate is not deferred by such contingencies.

7. Testator's will provided that his real estate should be held by trustees until such time as they should determine the estate could be sold to the best advantage, and then sold, and remainders to his children were created. A creditor of one of the remaindermen sued in equity to subject certain lands to his execution on the ground that the will was void under the rule against perpetuities, inasmuch as the conversion of the real estate might not be completed until more than 21 years. Held that, as to plaintiff, the question whether the conversion might not be completed until after the lives of the children and the lapse of more than 21 years thereafter was immaterial, as equity would regard the conversion as made.

8. If the possible postponement beyond the period of 21 years would invalidate the provisions as to remaindermen, inasmuch as their equitable title must vest within that period, it was not their estates, but the direction for a conversion, that would fail.

Case Reserved from Superior Court, Fairfield County; Edwin B. Gager, Judge.

Action under Gen. St. 1902, § 4053, by Robert W. Bates, an execution creditor who had levied on certain real estate as that of defendant Charles W. Spooner, against him and others, to establish and ascertain his title. Reserved on a finding of the facts for the advice of the Supreme Court. Judgment advised for defendants.

Robert E. De Forest, for plaintiff. Goodwin Stoddard and William B. Boardman, for defendants Morris B. Beardsley and Frederick Hurd.

BALDWIN, J. The plaintiff claims title under a levy of execution against Charles W. Spooner on an undivided third interest in certain lands vested in him as an heir at law of Clapp Spooner, who died in 1899. The will of Clapp Spooner purports to dispose of the lands in question, but the plaintiff insists that this disposition is void, and so that an undivided interest in them descended as intestate estate to Charles W. Spooner.

The testator, by a residuary devise, gave these lands to his executors in trust, to hold and manage, paying from the income, or proceeds of sales, to each of his three children, who were his sole heirs at law, "such sums as they, my said trustees, may deem necessary for the maintenance and support of my said children and for the maintenance and

support and education of any family which either of them may have until such time as by the terms of this will there shall be a division of my estate." He directed his "executors and their successors in said trust" to sell and convey all his "real estate and convert the same into safe investments" as soon after his decease as it could "be done in the exercise of their best business judgment.” He then proceeded as follows: "It is my especial request that after a sufficient sum shall have been obtained from my estate for a very comfortable support and maintenance of my daughter and sons, that the sales of the balance of my property be not pressed upon the market as it may take several years to dispose of the estate advantageously. Therefore I trust that great patience and care will be exercised by my executors in the management and disposition of the same. At such time as this shall have been fully accomplished and my real estate having been entirely sold, my estate shall be ready for division; if my estate shall then amount to the sum of $300,000, three hundred thousand dollars, I direct my said executors to pay therefrom to my niece, Elizabeth K. Patterson, wife of Robert, of Middletown, Connecticut, if living; and if she be deceased at that time, to her heirs at law, to be divided among them as if the same were her intestate estate, the sum of five thousand dollars ($5,000)." Should his estate then amount to $450,000, legacies were left to Catherine Towne and Lillian Gay, after which came this provision: "When the above directions shall have been carried out and my indebtedness shall have been fully paid and my real estate sold and converted into approved securities then subject to the said conditional legacies to Elizabeth K. Patterson, Lillian Gay and Catherine Towne, I direct my said executors or their successors in said trust at that time to divide my entire estate, as it shall then exist, into twenty-four equal parts and their division into these parts, as well as their allotment of said parts among my children shall be final and binding upon all parties in interest. I then give and bequeath ten of these said parts to my daughter Lily T. Spooner, to her and her heirs absolutely and forever. I give and bequeath to my said executors, or their successors at that time, seven of said parts, in trust, nevertheless, for the following uses and purposes, to wit, to take, hold, invest and reinvest the same and pay over at such times and in such sums as they may deem that circumstances require such portions of the net income therefrom as they may think best to or for the maintenance and support of my son, Charles W. Spooner, during his natural life. Upon his decease, should he leave him surviving a child or children, this trust shall thereupon cease, and the principal of said trust fund, together with any accumulated interest thereon, I give to such child or children absolutely to be divided among them as if it were the

intestate estate of said Charles W. Spooner. Should my said son, Charles W., upon his decease leave no issue or the representatives of children deceased, and in such event, should my daughter, Lily T., and my son, Harry C., both be living, then I give onehalf of principal and accumulated interest of said trust fund to said Lily T. absolutely; and the other one-half I direct said trustees to take, hold and manage in the same manner as is hereinafter in' this will provided in the case of the trust created for the benefit of the said Harry C. But if, in the event of the death of my son Charles W., without issue or the representatives of children deceased, my daughter, Lily T. should not be living, then I give at such time the one-half of said trust fund and accumulated interest that said daughter would have received, if living to her heirs at law, to be divided among them as if it were her intestate estate; and if upon the decease of my said son, Charles W., without issue or the representatives of children deceased, my son, Harry C., should not be living, then I give at such time the one-half of said trust fund and accumulated interest of which said son would have received the income, if living, to his heirs at law to be divided among them as if it were his intestate estate." The remaining seven parts were disposed of in a precisely similar way, mutatis mutandis, in favor of his other son, or his next of kin. At the time of the testator's death, no child was married, and none of them have since married.*

The plaintiff claims that the will contravenes the common-law rule against perpetulties. That the legal estate vested, upon the death of the testator, in his executors, is, in respect to this point, immaterial. The law searches out the beneficial estate, and demands that this shall vest within a life or lives in being and 21 years (or, as the case may be, 21 years and the period of gestation) thereafter. It does not demand that the particular individuals in whom it must thus be vested shall be definitely ascertainable at the testator's death. It is enough if it is certain that they will be definitely ascertainable within the period limited after that event. The plaintiff contends that the will disre gards this limitation, and does not contemplate the vesting of any beneficial interest in the corpus of the residuary estate until the executors divide it into shares and make an allotment of them. In support of this contention, he urges, first, that the trust interposed for the maintenance of the three children pending the sale of the real estate, and for the support and education of any family which either may have, may endure so long

This fact did not appear upon the record, but, on inquiry by the court, was admitted by counsel on both sides, who agreed and requested that it should be taken into consideration, if deemed of any materiality in the disposition of the cause.

as to postpone the vesting of the remainders beyond the period permitted, because, by its reference to their families, the will provides for the education of those yet unborn. The provision is naturally referable to education of their children during minority, and to be construed as thus limited. St. John v. Dann, 66 Conn. 410, 404, 34 Atl. 110. This trust, therefore, could under no circumstances endure beyond 21 years and 9 months after the death of the survivor of the testator's children.

It is next urged that all the real estate may not be sold within a life or lives in being at the testator's death and 21 years afterwards, and that until all has been sold the remaindermen cannot be ascertained. So far as the provision in remainder for Lily T. Spooner is concerned, 10 of the shares into which the estate is, when ready for distribution, to be divided by the executors or their successors in the trust, are "then" bequeathed to her absolutely. To this disposition the testator, in the final clause of his will, thus refers: "I wish to place on record my reason for giving to my daughter, Lily T., a somewhat larger portion of my estate than I have herein given to my sons, and that is, that she has given the best part of her life to my interests as well as those of her brothers. Should either of my children or their representatives take any action to prevent the probate of this will or the carrying out of any of its provisions, he shall forfeit all interest under this will and receive no part of my estate." Looking at the will as a whole, and to its paramount intent to provide for the testator's children, as the main object of his bounty, it is apparent that he meant the absolute bequest in remainder to his daughter to vest in right at the time of his decease. Farnum v. Farnum, 53 Conn. 278, 279, 281, 2 Atl. 325, 5 Atl. 682; Newberry v. Hinman, 49 Conn. 132; Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503. In respect to the contingent remainders expectant upon the termination of the life estates of the sons, his intent is equally apparent that none of them should become vested ones until the decease of one of the sons, nor all of them until the decease of both. Upon the first of these events, the seven shares in which the son so dying had had a life estate were to vest either (1) in his children, if any, him surviving absolutely; or (2) in his children, if any, him surviving, and those who may then be the legal representatives of any deceased child of his, per stirpes, absolutely; or (3) one-half absolutely to Lily T. Spooner or her heirs at law, and one-half on an active trust for the life and benefit of Harry C. Spooner, with remainder to his (Harry's) heirs at law, absolutely. Unless, then, the delay allowed for the conversion of the realty into personalty can avail to postpone the vesting of these remainders, the remotest of them must become vested on the death of the survivor of the two brothers. Should

the first to die leave surviving descendants, they take, upon his death, an absolute title. Should he leave none, half of the seven shares goes absolutely to his sister, if she be then living, and, if she should not be then living, to those who upon her decease were her heirs at law; while the other half, subject to a beneficial life estate in his brother, goes absolutely to those who upon the latter's decease may be his heirs at law. It is immaterial that whether the bequests in remainder will cover the entire residuary estate or not can only be ascertained when the conversion is fully accomplished, because until then it will be uncertain both whether the net income will suffice for the support of the children and their families, and whether the conditional legacies are to be deducted. The vesting of an estate is not deferred by contingencies of such a nature, which affect only its amount or value. Mallory v. Mallory, 72 Conn. 494, 500, 45 Atl. 164.

It remains to consider whether the testator's intent is to be defeated on account of his directions as to the length of time during which the executors and their successors in the trust may retain the title to the residuary estate for the purposes of conversion. In applying the common-law rule against perpetuities to estates in remainder, the ordinary rule is they must vest within the period prescribed, not only so far as to be capable of alienation and the subject of succession by inheritance, out so absolutely as to make it certain that the remainderman will come into possession immediately upon the determination of the preceding estate. Johnson v. Edmond, 65 Conn. 492, 499, 33 Atl. 503. A possession, however, for another, is his possession. The executors were to hold their title, and to retain possession for a longer time than that customarily occupied in the settlement of an estate, for the sole benefit of the testator's children, and of those entitled in remainder. It is possible that all of his children may die before the conversion of the residuary estate into personalty has been completed, and so before any division into or allotment of shares has been made. But had they survived their father only a day, the will would still have made a valid disposition of the residuary estate. The estate of the daughter would have immediately succeeded to her interest, namely, to the 10 shares to be received whenever the executors should be ready to make the allotment; and the remainders and crossremainders in the other shares would also have then become vested in right, the time of enjoyment only being deferred. Cropley v. Cooper, 19 Wall. 167, 176, 22 L. Ed. 109; Johnes v. Beers, 57 Conn. 295, 303, 18 Atl. 100, 14 Am. St. Rep. 101.

It is unnecessary to determine whether it can be regarded as possible that the conversion may not be completed till the lapse of more than 21 years. See Belfield v. Booth, 63 Conn. 299, 27 Atl. 585; Brandenburg v.

Thorndike, 139 Mass. 101, 102, 28 N. E. 575. If it be possible, the result, as respects the claim of the plaintiff, would be the same, and for two reasons: (1) The will makes an equitable conversion. Equity-and this is an equitable action-regards the conversion, for all purposes of succession, as if it were completely effected at the testator's decease. Duffield v. Pike, 71 Conn. 521, 526, 42 Atl. 641; Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585; Henderson v. Henderson, 133 Pa. 399, 19 Atl. 424, 19 Am. St. Rep. 650. That the time for the division of the estate into shares for allotment was not to arrive until the conversion had been made in fact did not, therefore, defer the time or times when the right of any legatee to benefit by the allotment would otherwise become a vested one. (2) If the period allowed for conversion can be construed as possibly exceeding the lives of the children and 21 years thereafter, and if the possible postponement beyond that period of the vesting of possession in the remaindermen, consequent upon that construction of the will, would invalidate the provisions in their favor, then, inasmuch as their equitable title must vest within that period, it is not their estates, but the direction for a conversion, that would fail. Gray, Restraints on the Alienation of Property, 97.

The superior court is advised that the trust provisions in the will of Clapp Spooner do not contravene the rule of law against perpetuities. Costs will be taxed in this court in favor of the defendants. The other Judges concurred.

2. Plaintiff was unloading a piano from a wagon, and waited for two street cars to pass, and then backed his wagon against the curb with the horse standing on the tracks. He sent a man down the street to signal any car that might approach. One came, without giving any warning, at an unusual rate of speed; and although the motorman had an unobstructed view for three or four squares, and was given a notice to stop, he struck the horse and wagon, injuring plaintiff. Held, that a verdict for plaintiff would be sustained.

Appeal from Court of Common Pleas, Allegheny County; McClung, Judge.

Action by W. T. McFarland against the Consolidated Traction Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

James C. Gray and Clarence Burleigh, for appellant. L. K. Porter and S. G. Porter, for appellee.

MESTREZAT, J. This is an action to recover damages for personal injuries which the plaintiff alleges he sustained by reason of the negligence of the defendant company. On the evening of March 29, 1900, the plaintiff was engaged with a one-horse transfer wagon in removing a piano, weighing about 1,200 pounds, to the residence of Mrs. Eschallier, 157 Larimer avenue, East End, Pittsburg. He drove to the avenue, in the vicinity of the place he was to deliver the piano, and, having waited for two street cars to pass, he backed the wagon against the curb, its rear standing at right angles with and against the curb, with the horse standing diagonally across the street car track with its head in the direction of Everett street. With the assistance of three other men the plaintiff began to remove the piano from the wagon, and when it was "half way off" a car of the defendant company coming from the east on an ascending grade struck the horse and shaft and caused the wagon to move, throwing the piano on the plaintiff and severely injuring him. Larimer avenue is 25 feet between curbs, and there is an ascending grade from Everett street to the place of the collision, a distance of about 120 feet. There is a single car track on the avenue, 9 feet 10 inches from the curb, on which the defendant company runs its cars in a westerly direction.

On the trial of the cause in the court below the learned judge, in a charge clear and adequate, submitted the question of the defendant's and plaintiff's negligence to the jury. The verdict was in favor of the plaintiff. and from the judgment entered thereon the defendant has taken this appeal. The principal and important error assigned is that the court erred in not affirming the defendant's point "that under all the evidence the verdict should be for the defendant."

If the testimony of the plaintiff was worthy of credence, the jury was justified in finding that the defendant's motorman was guilty of negligence which occasioned the plaintiff's injuries. At the time of the accident it was light, and he had an unobstructed view of the horse and wagon for three or four squares. When the car was approaching the place of collision, and distant therefrom at least 110 feet, the motorman, who could, and presumably did, see the horse on the track, disregarded a notice to stop which he heard, although, according to his own testimony, he could have stopped his car within 30 feet. At the time of the accident the car was running at twice its usual or ordinary speed, and no warning of its approach was given. We agree with the learned trial judge that if these were the facts "there would be little difficulty in determining that this was the grossest kind of negligence." The verdict

of the jury has established the facts as presented by the plaintiff.

In their printed brief of argument the learned counsel for the defendant attempted to show that the plaintiff's witnesses were not credible, and that his testimony was unworthy of belief. We must remind them of what they well know, that their argument should have been, and doubtless was, presented in another forum, and that the verdict of the jury, whose province it was, has settled the question against their contention.

It is argued very strenuously that the plaintiff was clearly guilty of contributory negligence, and hence the learned trial judge should have directed a verdict for the defendant company. The determination of this question requires a brief reference to the material facts as found by the jury. After the plaintiff arrived in the avenue near the Eschallier residence, and before he began to discharge his load, he waited until two cars had passed and no other car was in sight. He looked and could see "as far as the eye would carry" in the direction in which a car must come, and in order to protect his horse and wagon from a possible collision he sent a man in that direction to signal any car that might approach. Having taken these precautions, and knowing that the motorman if running his car at the usual speed could see the horse and stop without danger of a collision, the plaintiff placed the rear of his wagon against and at right angles with the curb, the horse necessarily on the car track and standing diagonally across it. The piano, the object to be removed from the wagon, was heavy, and it was dangerous to undertake to remove it by lifting it over the side of the wagon while it was standing parallel with the curb. It was the universal custom, under these circumstances, to unload pianos from the rear of the wagon as it stood against the curb.

These facts did not warrant the court in declaring the plaintiff guilty of negligence and directing a verdict for the defendant company. On the contrary, they fully justified the jury in the conclusion that he had performed his duty and had exercised proper care under the circumstances. The size of the piano and safety in its removal required it to be unloaded from the rear end of the wagon. The position of the wagon necessarily placed the horse on the car tracks. The plaintiff, therefore, had the right to occupy the tracks while unloading the piano, provided he did so with no unnecessary delay, and with proper precautions to prevent a collision with an approaching car. That he exercised care while occupying the track is apparent from all the facts, especially from the fact that he had the motorman signaled to stop at a point sufficiently distant to stop the car in time to avoid the accident. Had the motorman heeded the signal thus given him, the collision would not have occurred. Nor was the plaintiff, under the circumstan.