12 Ind. App. 340, 38 N. E. 1094. See, also, Elliott's Proc. § 128; Lawrence v. Wood, 122 Ind. 452, 24 N. E. 159. While the Tate Case does not expressly overrule the earlier cases, yet it must be conceded that it declares a rule contrary to that declared in the earlier

cases.

However, the motion to dismiss is also upon the ground that appellant has failed to comply with the rules of this court with respect to filing briefs. The brief contains less than one page of typewritten matter and does not in any way comply with the rules. It appears to have been prepared with none of that care that should be exercised in preparing briefs, and meets none of the requirements of a brief. The brief wholly fails to present any question for review. Appeal dismissed.

(38 Ind. App. 657)

GRAND RAPIDS & I. RY. CO. et al. v. HUNT et al. (No. 3.)1

(Appellate Court of Indiana, Division No. 1. June 29, 1906.)

RAILROADS-ORDERS OF RAILROAD COMMISSION-REVIEW BY COURTS.

Under Acts 1905, p.. 88, c. 53, § 6, authorizing a railroad company to appeal to the Appellate Court from any "rate, classification, rule, charge, or general regulation," adopted by the railroad commission, no appeal lies to the Appellate Court from an order of the commission requiring the installation of an interlocking device at a crossing, the order not coming within the duties exercised by the commission as to "rate, classification, rule, charge, or general regulation."

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, § 11.]

Appeal from Railroad Commission.

Petition by the Chicago & Erie Railroad Company against the Grand Rapids & Indiana Railway Company and another to require the construction, maintenance, and operation of an interlocking device at a railroad crossing. From an order of the railroad commission requiring the installation and maintenance of an interlocking device, the Grand Rapids & Indiana Railway Company and another appeal. Dismissed.

G. E. Ross, for appellants.

ROBINSON, C. J. The Chicago & Erie Railroad Company filed its petition with the railroad commission against appellant to require the construction, maintenance, and operation of an interlocking device at a crossing. The commission found in favor of the petitioner. From the order thus made by the commission, appellant has appealed to this court.

Under section 6 of the railroad commission act (Acts 1905, p. 88, c. 53) an appeal direct to this court is authorized only where the party in interest is dissatisfied with "any rate, classification, rule, charge, or general regulation made, approved, adopted or order

1 Transfer to Supreme Court denied, 78 N. E. 981.

ed by the commission." If the party in interest be dissatisfied with any order or regulation of the commission "respecting the location or construction of sidings, switches, or connections between railroads, or the crossing of one railroad by another, or the transfer and switching of cars at junction points, or the regulation of private tracks," an appeal may be taken to the circuit or superior court of the particular county, and from the action of that court in the matter, an appeal to the Appellate Court is authorized. As to the installation and maintenance of interlocking appliances the act vests in the commission the authority theretofore vested in the Auditor of State. That is, the statute that vested this authority in the Auditor must be looked to, to determine the duties and authority of the commission in relation to interlocking appliances at crossings. Whether an appeal will lie to any court from the action of the commission in installing an interlocking appliance, we need not determine. But it is apparent from the whole act that an order of the commission installing such appliance does not come within the duties exercised by the commission as to a "rate, classification, rule, charge, or general regulation," from which alone appeals to this court are authorized.

Appeal dismissed.

(38 Ind. App. 511)

HEARD V. STATE. (No. 6,205.) (Appellate Court of Indiana, Division No. 2. June 29, 1906.)

1. ASSAULT-ATTEMPT TO PROVOKE-INTENT. Intent is an essential element of the offense of attempting to provoke another to commit an assault.

2. SAME-PROOF-CIRCUMSTANTIAL EVIDENCE. In a prosecution for an attempt to provoke another to commit an assault, accused's intent may be proved either by positive or circumstantial evidence.

3. SAME EVIDENCE.

In a prosecution for an attempt to provoke another to commit an assault, evidence held sufficient to sustain a conviction.

Appeal from Circuit Court, Orange County; Wm. C. Utz, Special Judge.

Charles W. Heard was convicted of an attempt to provoke another to commit an assault, and he appeals. Affirmed.

Perry McCart, for appellant. C. W. Miller, Atty. Gen., W. C. Geake, C. C. Hadley, and H. M. Dawling, for appellee.

COMSTOCK, P. J. The appellant was charged and convicted in the court below of an attempt to provoke another to commit an assault. From that judgment he appeals, and under the assignment of errors he insists that the evidence does not sustain the judgment of the court, in that it does not show an intent upon the part of the defendant

Intent is an essential element of the offense charged in the case. It may be proved, like any other material fact, by positive or circumstantial evidence. Courts and juries are permitted to draw reasonable inferences from the facts proven. The question of intent was one of fact to be determined by the court, and the only question before us

Was there any evidence submitted to the trial court upon the question of appellant's intent to commit the offense with which he was charged and convicted? If there was evidence, positive or circumstantial, from which the trial court could infer such intent, then this court will not be justified in disturbing the judgment. Felton v. State, 139 Ind. 531, 39 N. E. 228; Deal v. State, 140 Ind. 354, 39 N. E. 930. John Hollingsworth, a witness for the state, testified: That he saw the appellant and the prosecuting witness, Mr. Lambdin, on the 26th of August, 1904, in front of a livery barn in the town of Paoli, Orange county, Ind. That they were about six or eight feet apart, with nothing between them. That he heard the appellant say to the prosecuting witness: "You have been tending to my business lately, and now I am going to tend to yours, and I don't know how you are going to help yourself. If you are, get at it, or if you have any friends here to help you, let them get at it." That Lambdin at the time was reading a temperance article, and that defendant's manner was angry and insulting. Samuel R. Lambdin, a witness for the state, testified: That he was sitting in front of a livery barn in Paoli, Orange county, Ind., reading aloud some article on temperance, in the presence of some other persons.

(185 N. Y. 485)

ROBB v. WASHINGTON AND JEFFERSON COLLEGE et al.

(Court of Appeals of New York. June 21, 1906.)

1. WILLS-BEQUEST TO CHARITY-STATUTES— RIGHT TO INVOKE.

Laws 1860, p. 607, c. 360, provides that no person having a husband, wife, child, or parent shall by his or her last will devise or bequeath to any charitable corporation more than one-half of his or her estate. Held, that such provision may be insisted on to invalidate a testamentary provision by any person who derives a benefit by such statute, though not one of the relatives designated therein.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, $$ 550-559.]

2. TRUSTS-CREATION-DELIVERY OF GIFT.

Delivery of a trust res to the cestuis que trustent is not an essential to the valid creation of a trust.

[Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 43, 53.]

3. SAME-WRITTEN INSTRUMENT-EXECUTION. Where the founder of a trust executed a declaration of trust under seal and delivered it to one of the cestuis que trustent, such instrument constituted a valid declaration of trust in case the terms were not illegal.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 31, 32.]

4. SAME-TESTAMENTARY INSTRUMENT.

Testator executed a declaration of trust under seal which was delivered to one of the cestuis que trustent, by which testator declared that he had irrevocably appropriated and set aside certain securities in his possession particularly enumerated which he held in trust: First, to pay $1,800 annually to the maintenance of a professorship in a certain college during testator's natural life; second, to apply the balance of the income to his individual use; third, to certain legacies after his death, and the of a balance of the income in securities to found a college chair of rhetoric. Held, that the trusts declared to take effect after testator's death vested in the cestuis que trustent from the date of the delivery of the deed, and bence said trusts were not void because the deed was not executed in the form of a testamentary instrument.

That ap

pellant came up and listened to the reading and said to one of the persons present: "Here is Bob Lambdin. He came from Crawford county and is reading a temperance lecture." That Lambdin told him to go on, that he was not bothering him. That appellant further said that "if you have any way to help yourself, I would like to know how you are going to do it, and if you have any friends to help you I would like to know how they are going to do it." There is some conflict in the evidence as to what was said by and between the parties to the controversy, and also whether' appellant's manner was angry and insulting. We cannot say that the language used as above set out can reasonably be understood in any other light than that of an invitation to engage in a physical encounter, and cannot say that there was no evidence to sustain the judgment. The record presents only questions of fact passed upon by the trial court, and, as we cannot say that there was no evidence to warrant the conclusion of the court and cannot weigh the evidence, we' cannot disturb the judgment.

Judgment affirmed,

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 31, 32.]

5. SAME-GIFT TO CHARITIES-STATUTES.

Laws 1860, p. 607, c. 360, declares that no person having a husband, wife, child, or parent shall by his will devise or bequeath to any charitable corporation more than one-half of his or her estate. Held, that such act applied only to donations by will and did not preclude the owner of property from executing a deed of trust during his lifetime by which more than one-half of his estate was bequeathed to a college for the founding of a professorship.

[Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 6-9; vol. 9, Cent. Dig. Charities, § 9.]

6. SAME SEPARATE TRUSTS-VALIDITY.

Where a deed appropriated certain securities in trust to apply the income to designated objects during the grantor's life and to other objects after his death, it should be construed as creating two independent successive and not concurrent trusts; the invalidity of one having no effect on the other.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, § 72.]

7. SAME TRUST TO PAY ANNUITIES-VALIDITY.

A trust to pay an annuity is valid. [Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, § 9.]

8. SAME-TRANSFER OF ANNUITY.

Where a trust is created to pay an annuity, the annuity is inalienable.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, § 192.]

9. PERPETUITIES-TRUSTS TO PAY ANNUITIES.

Testator created a trust and provided that immediately after his death the trustee should pay from a portion of the income certain annuities to seven beneficiaries mentioned in the will, then in being, during their respective lives, and that on the death of the survivor the income should be used by the college for the maintenance of a chair of rhetoric. Held, that such provision, construed as a trust to pay annuities was invalid in New York, as suspending the absolute ownership of the property for more than two lives in being, in violation of Personal Property Law, Laws 1897, p. 507, c. 417, § 2.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Perpetuities, §§ 46-55.j

10. TRUSTS-VALIDITY-WHAT LAW GOVERNS.

Where a trust deed appointed a Pennsylvania corporation trustee, and the fund was to be there held and administered, whether the trust was valid or invalid should be determined by the laws of Pennsylvania.

[Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trusts, § 2.]

11. PERPETUITIES PERSONAL PROPERTY COMMON LAW.

A trust to pay a portion of the income to seven annuitants for life and to the survivor of them, remainder to the use of a college for the establishment of a professorship, was not violative of the common-law rule against perpetuities prohibiting the tying up of estates either in personal or real property for more than a life or lives in being and 21 years.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Perpetuities, §§ 46-55.] 12. EVIDENCE - PRESUMPTIONS LAWS OTHER STATES.

OF

On July 23, 1902, John H. Wallace made his last will by which he bequeathed to his wife the sum of $10,000 in pursuance of an antenuptial agreement between the parties, to certain other legatees sums outright aggregating $32,000, provided for annuities to seven persons during their respective lives and gave the remainder of his estate to Washington and Jefferson College, located at Washington, in the state of Pennsylvania. After consultation with the authorities of the college respecting the application of his bounty, Mr. Wallace, on Septem.er 5th, executed and delivered to the college a declaration of trust the material parts of which, after a recital of his desire to irrevocably appropriate and settle certain securities on the college for the establishment and maintenance of a professorship of rhetoric and oratory, are as follows: "Now, therefore, I, John H. Wallace, do hereby declare that I have this day irrevocably appropriated and set aside securities of the value of one hundred and twentynine thousand dollars, or more, said securities being now in my possession and being hereinafter more particularly enumerated, and that I hold the same in trust and special confidence for the following uses and purpos es and none other, to wit: First. To pay over upon the first day of October in each and every year during my natural life to said Washington and Jefferson College, upon the receipts of its treasurer, out of the net income arising from said securities, the sum of eighteen hundred dollars to be applied to the maintenance of said professorship. Second. To take and apply to my own individual use, during the term of my natural life, all the residue of the net annual income of said securities. Third. From and immediately after my decease I hereby constitute and appoint the said Washington and Jefferson College trustee in my room and stead and direct and empower said college to immediately take and hold said securities as I now hold them in trust to presently pay out of the principal of the same as follows." Here follow gifts to the legatees named in his will. 66* After thirty-two thousand dollars have been paid by Washington and Jefferson College, my successor in this trust, out of the principal sum of the securities therein embraced, and hereinafter enumerated, the remaining securities shall be held by said college in trust to pay out of the net income annually, counting from the date of my death, the following sums, to wit." The same annuitants mentioned in his will. "The balance of the net income of said remaining securities during the lives of said annuitants (and after the death of the survivor of them) all the net income thereof shall be devoted by the said Washington and Jefferson College to perpetually maintain a professorship in rhetoric and oratory to be called the Wallace Professorship of Rhetoric and Oratory." The declaration contains an enumeration of the particular securities the subject of

Modified

the trust, which amount in the aggregate to about $130,000. The settler reserved to himself the right to modify the provision as to the legacies and annuities, provided he should not thereby increase their aggregate amount.

declaration, Mr. Wallace thereupon made a codicil to his will by which he revoked all the legacies and annuities except that to his wife and the residuary gift to the college. Mr. Wallace died in May, 1903, leaving an estate not exceeding $10.000 in addition to the securities mentioned in the declaration of trust. The plaintiff brought this action as one of the next of kin of the deceased to have the trust deed declared inoperative, the securities therein mentioned adjudged part of the testator's estate, and that so much of the legacy to the college as exceeded in value one-half of the testator's estate be distributed among his next of kin as in the case of intestacy. The case was decided by the Trial Term in favor of the plaintiff. The Appellate Division reversed the judgment of the Trial Term and awarded the defendant final judgment dismissing the complaint, with costs.

Henry W. Goodrich, for appellant. M. Linn Bruce and John L. Hill, for respondents.

CULLEN, C. J. (after stating the facts). One of the learned counsel for the respondents challenges the right of the plaintiff to maintain this action and to take advantage of the prohibition contained in chapter 360, p. 607, of the Laws of 1860, which enacts that "no person having a husband, wife, child or parent shall, by his or her last will and testament, devise or bequeath to any charitable, etc., corporation * * ** more than one-half of his or her estate," because he is not one of the relatives mentioned in the statute, but only a collateral. The Appellate Division overruled this claim, and rightly so, for the question is not an open one. Forty years ago, in Harris v. American Bible Society, 2 Abb. Dec. 316, this court held that the provision of the statute may be insisted on by any person who derives a benefit therefrom, although not one of the relatives designated in the statute. The case has been repeatedly followed, and its authority has never been questioned. As late as the 136th New York, this court said in Matter of Will of Walker,

136 N. Y. 20, 32 N. E. 633, that a will is to

be read as if the statutory restriction was part of it and it had in terms provided that the legacies or devises given by it to charitable corporations should not exceed one-half of the estate. Though the plaintiff can take advantage of the statute, there is no advantage to be taken in this case if the deed or declaration of trust stands, for in that event the legacy to the widow exceeds one-half of the testator's estate. The learned Appellate Division was of the opinion that there was

definite negotiations which were not con

summated until the execution of the declaration of trust, and into which tue prior conversations must be deemed to have merged. We are, therefore, brougnt to a consideration of the character, effect, and validity of the declaration of trust and of the several objections to it raised by the counsel for the appellant. That the execution and delivery to the college of the declaration or deed was sufficient to create a trust if the terms of the trust were not illegal we think very clear. While to make an effective gift delivery to the donee is essential (Young v. Young, 80 N. Y. 422, 36 Am. Rep. 634), that is not necessary in the creation of a trust. The distinction between the two cases is pointed out in the case cited, and in the later one of Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531. In the case of personal property an unequivocal declaration of the trust by the settlor impresses it with a trust character, and converts his legal title to that of trustee for the person for whose benefit the trust is created. Martin v. Funk, 75 N. Y. 134, 31 Am. Rep. 446; Young v. Young, supra; Beaver v. Beaver, supra. Here the founder of the trust executed the declaration under seal and delivered it to one of the cestuis que trustent. This, under all the authorities, was sufficient.

It is contended, however, that if the deed of trust constituted two separate consecutive trusts, one during the life of the founder, the other after his decease, as the Appellate Division has held, then the second trust was testamentary in its character and the trust deed not having been executed in compliance with the statutory requirement for the execution of wills, fails. This was the ground on which the trial court based its decision. This argument is based on a clear misapprehension of the distinction between a testamentary instrument and a deed. Doubtless the second trust created by the declaration was not to take effect in possession or enjoyment till the death of the founder. But this was by reason of the terms of the instrument itself, not because that instrument was testamentary. See Grafing v. Heilmann, 1 App. Div. 260, 37 N. Y. Supp. 253, affirmed on opin

ion below, 153 N. Y. 673, 48 N. E. 1104. Under the declaration the rights of the beneficiaries accrued at the time of its execution and delivery, and, except as the instrument itself contained a power of revocation either in whole or part, those rights could not be affected or modified by the subsequent acts of the founder of the trust. This distinction is clearly pointed out by Mr. Jarman, in his work on Wills (page 17): "A will is an instrument by which a person makes a dis

position of his property, to take effect after his decease, and which is in its own nature ambulatory and revocable during his life. It is this ambulatory quality which forms the characteristics of wills; for, though a disposition by deed may postpone the possession or enjoyment, or even the vesting, until the death of the disposing party, yet the postponement is, in such case, produced by the express terms, and does not result from the nature of the instrument. Thus, if a man, by deed, limit lands to the use of himself for life, with remainder to the use of A. in fee, the effect upon usufructuary enjoyment is precisely the same as if he should, by his will, make an immediate devise of such lands to A. in fee; and yet the case fully illustrates the distinction in question, for, in the former instance, A., immediately on the execution of the deed, becomes entitled to a remainder in fee, though it is not to take effect in possession until the decease of the settlor, while, in the latter, he would take no interest whatever until the decease of the testator should have called the instrument into operation." Nor does the fact that a deed of trust contains a full power of revocation render the instrument testamentary. This was expressly decided by this court in Van Cott v. Prentice, 104 N. Y. 45, 10 N. E. 257. In the present case only a limited power of subsequent modification was reserved to the founder.

It is next contended that the creation of the trust was a fraud on the provisions of the act of 1860 already cited. This contention also proceeds on a misconception of the purpose and effect of that statute. The statute, as said by Vann, J., in Amherst College V. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. R. A. 305, "does not prohibit charitable gifts altogether, but only under certain circumstances, to a certain extent and by a certain method. If the gift is not made by will, or if made by will and the testator leaves no surviving relative of the degree named, or it is to charities other than those mentioned, there is no prohibition. It does not compel a testator to leave his property or any part thereof to relatives. It does not prevent him from giving all that he has to charity during his lifetime. It is aimed simply at the giving of an undue proportion to charity by will, when certain near relations have, in the opinion of the Legislature, a better claim." The same doctrine is asserted in the dissenting opinion in that case of Chief Judge Andrews: "What the statute plainly did intend was to prohibit one form of donation to corporations, described in the act, which would exceed one-half of the donor's estate, namely, a donation by will. The donor was not permitted by will to give to the charities mentioned beyond the prescribed amount. The statute regulated and restricted testamentary donations, and no others. * The corporations enumerated in the statute

*

were those to which, in the last days of life, a man, acting under mistaken notions of duty, might voluntarily or through persuasion be induced to give his property in disregard of the just claims of kindred." The danger or possible evil to guard against which the statute was enacted would generally, though not exclusively, arise in the case of donations by will. Therefore it was entirely within the power and the right of Mr. Wallace to give to the college by deed of trust such part of his estate as he saw fit, and, even though this was done in view of the statutory restrictions on donations by will, his act contravened neither the letter nor the spirit of the statute.

We are now brought to the interpretation of the deed of trust and the legality of its provisions. We agree with the learned Appellate Division that it constituted two independent trusts successive and not concurrent; the first during the life of the settlor, the second after his decease. The validity of the first, and of the direction that at the death of Mr. Wallace certain sums, aggregating $32.000, should be paid to specified beneficiaries, seems subject to no criticism. These provisions are readily severed from the subsequent trust and should be upheld regardless of the validity of that trust. Harrison v. Harrison, 36 N. Y. 543; Woodgate v. Fleet, 64 N. Y. 566; Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585. Those sums, therefore, constituted no part of the testator's estate. As to whether the gift of the remainder of the estate subject to the payment of the annuities is to be considered as a gift to its own use, under the doctrine of Bird v. Merklee, 144 N. Y. 544, 39 N. E. 645, 27 L. R. A. 423, and Matter of Griffin's Will, 167 N. Y. 71, 60 N. E. 284, or the creation of a trust, it is unnecessary to determine, for even accepting the latter view, under the law of 1893 the trust would be valid. Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568. This provision, therefore, creates no embarrassment. The difficulty in the case arises from the fact that the property is first given in trust for the payment out of the income of annuities to seven annuitants during their respective lives. That a trust to pay an annuity is a valid trust under our statutes, and that such an annuity is inalienable, was decided by this court in Cochrane v. Schell, 140 N. Y. 516, 35 N. E. 971. The language of the trust deed or declaration is too clear and explicit to permit the construction that it was intended to make the annuities a mere charge on the corpus of the estate. Construed as a trust to pay annuities, the trust is invalid under the laws of this state because it suspends the absolute ownership of the property for more than two lives in being. Personal Property Law, Laws 1897, p. 507, c. 417, § 2. The suggestion is made by the learned Appellate Division, as we understand the opinion, that since the ultimate