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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.
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.
(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, 8 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.
(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. Mil. ler, Atty. Gen., W. C. Geake, C. C. Hadley, and H. M. Dawling, for appellee.
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
* Transfer to Supreme Court denied, 78 N. E. 981.
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 defend. ant.
Intent is an essential element of the offense
(185 N. Y. 485) charged in the case. It may be proved, like ROBB V. WASHINGTON AND JEFFERany other material fact, by positive or cir
SON COLLEGE et al. cumstantial evidence. Courts and juries are permitted to draw reasonable inferences
(Court of Appeals of New York. June 21,
1906.) from the facts proven. The question of intent was one of fact to be determined by 1. WILLS-BEQUEST TO CHARITY-STATUTESthe court, and the only question before us
RIGHT TO INVOKE.
Laws 1860, p. 607, c. 360, provides that is: Was there any evidence submitted tu
no person having a husband, wife, child, or the trial court upon the question of appel parent shall by his or her last will devise or lant's intent to commit the offense with bequeath to any charitable corporation more which he was charged and convicted? If
than one-half of his or her estate. Held, that
such provision may be insisted on to invalidate there was evidence, positive or circumstan
a testamentary provision by any person who tial, from which the trial court could infer derives a benefit by such statute, though not one such intent, then this court will not be justi
of the relatives designated therein. fied in disturbing the judgment. Felton v.
[Ed. Note.-For cases in point, see vol. 49,
Cent. Dig. Wills, $$ 550–559.] State, 139 Ind. 531, 39 N. E. 228; Deal v.
2. TRUSTS-CREATION-DELIVERY OF GIFT. State, 140 Ind. 354, 39 N. E. 930. John Hol
Delivery of a trust res to the cestuis que lingsworth, a witness for the state, testified: trustent is not an essential to the valid creaThat he saw the appellant and the prosecut tion of a trust. ing witness, Mr. Lambdin, on the 26th of [Ed. Note.-For cases in point, see vol. 47,
Cent. Dig. Trusts, $$ 43, 53.] August, 1904, in front of a livery barn in the town of Paoli, Orange county, Ind. That
3. SAME-WRITTEN INSTRUMENT-EXECUTION.
Where the founder of a trust executed a they were about six or eight feet apart, with
declaration of trust under seal and delivered it nothing between them. That he heard the
to one of the cestuis que trustent, such instruappellant say to the prosecuting witness: ment constituted a valid declaration of trust "You have been tending to my business lately,
in case the terms were not illegal. and now I am going to tend to yours, and I
[Ed. Note.-For cases in point, see vol. 47,
Cent. Dig. Trusts, $$ 31, 32.] don't know how you are going to help your
4. SAME--TESTAMENTARY INSTRUMENT. self. If you are, get at it, or if you have any
Testator executed a declaration of trust friends here to help you, let them get at it.” under seal which was delivered to one of the That Lambdin at the time was reading a cestuis que trustent, by which testator declared
that he had irrevocably appropriated and set temperance article, and that defendant's man
aside certain securities in his possession particuner was angry and insulting. Samuel R.
larly enumerated which he held in trust: First, Lambdin, a witness for the state, testified: to pay $1,800 annually to the maintenance of a That he was sitting in front of a livery professorship in a certain college during testabarn in Paoli, Orange county, Ind., reading
tor's natural life; second, to apply the balance
of the income to his individual use; third, to aloud some article on temperance, in the pay certain legacies after his death, and the presence of some other persons.
balance of the income in securities to found a
college chair of rhetoric. Held, that the trusts pellant came up and listened to the reading
declared to take effect after testator's death and said to one of the persons present: vested in the cestuis que trustent from the “Here is Bob Lambdin. He came from Craw date of the delivery of the deed, and bance ford county and is reading a temperance
said trusts were not void because the deed was
not executed in the form of a testamentary lecture." That Lambdin told him to go on,
instrument. that he was not bothering him. That appel
[Ed. Note.—For cases in point, see vol. 47, lant further said that "if you have any way Cent. Dig. Trusts, $$ 31, 32.] to help yourself, I would like to know how
5. SAME-GIFT TO CHARITIES-STATUTES. you are going to do it, and if you have any
Laws 1860, p. 607, c. 360, declares that no friends to help you I would like to know how person having a husband, wife, child, or parent they are going to do it.” There is some con
shall by his will devise or bequeath to any
charitable corporation more than one-half of flict in the evidence as to what was said his or her estate. Held, that such act applied by and between the parties to the contro only to donations by will and did not preclude versy, and also whether' appellant's manner the owner of property from executing a deed
We cannot say
of trust during his lifetime by which more than was angry and insulting.
one-half of his estate was bequeathed to a colthat the language used as above set out can Lege for the founding of a professorship. reasonably be understood in any other light
[Ed. Note.—For cases in point, see vol. 47, than that of an invitation to engage in a Cent. Dig. Trusts, $$ 6-9; vol. 9, Cent. Dig.
Charities, $ 9.] physical encounter, and cannot say that there was no evidence to sustain the judgment. 6. SAME-SEPARATE TRUSTS-VALIDITY. The record presents only questions of fact
Where a deed appropriated certain securi
ties in trust to apply the income to designated passed upon by the trial court, and, as we
objects during the grantor's life and to other cannot say that there was no evidence to objects after his death, it should be construed warrant the conclusion of the court and can
as creating two independent successive and not
concurrent trusts; the invalidity of one having not weigh the evidence, we cannot disturb
no effect on the other. the judgment.
[Ed. Note.-For cases in point, see vol. 47, Judgment aflirmed.
Cent. Dig. Trusts, 8 72.]
7. SAME-TRUST TO PAY ANNUITIES_VALID- On July 23, 1902, John H. Wallace made ITY.
his last will by which he bequeathed to his A trust to pay an annuity is valid.
wife the sum of $10,000 in pursuance of an [Ed. Note.For cases in point, see vol. 47, Cent. Dig. Trusts, $ 9.]
antenuptial agreement between the parties,
to certain other legatees sums outright ag. 8. SAME-TRANSFER OF ANNUITY.
Where a trust is created to pay an annuity, gregating $32,000, provided for annuities to the annuity is inalienable.
seven persons during their respective lives [Ed. Note.—For cases in point, see vol. 47, and gave the remainder of his estate to Cent. Dig. Trusts, $ 192.]
Washington and Jefferson College, located at 9. PERPETUITIES—TRUSTS TO PAY ANNUITIES.
Washington, in the state of Pennsylvania. Testator created a trust and provided that
After consultation with the authorities of the immediately after his death the trustee should pay from a portion of the income certain college respecting the application of his bounannuities to seven beneficiaries mentioned in ty, Mr. Wallace, on Septemwer 5th, executed the will, then in being, during their respective
and delivered to the college a declaration of lives, and that on the death of the survivor the income should be used by the college for the
trust the material parts of which, after a remaintenance of a chair of rhetoric. field, that cital of his desire to irrevocably appropriate such provision, construed as a trust to pay an- and settle certain securities on the college for nuities was invalid in New York, as suspend
the establishment and maintenance of a proing the absolute ownership of the property for more than two lives in being, in violation of
fessorship of rhetoric and oratory, are as fol. Personal Property Law, Laws 1897, p. 507, c. lows: "Now, therefore, I, John H. Wallace, 417, § 2.
do hereby declare that I have this day ir[Ed. Note.-For cases in point, see vol. 39, revocably appropriated and set aside securiCent. Dig. Perpetuities, $$ 46–55.)
ties of the value of one hundred and twenty10. TRUSTS-VALIDITY-WHAT LAW GOVERNS. Where a trust deed appointed a Pennsyl
nine thousand dollars, or more, said securivania corporation trustee, and the fund was to
ties being now in my possession and being be there held and administered, whether the hereinafter more particularly enumerated, trust was valid or invalid should be determined
and that I hold the same in trust and special by the laws of Pennsylvania,
confidence for the following uses and purpos[Ed. Note.For cases in point, see vol. 47, Cent. Dig. Trusts, $ 2.]
es and none other, to wit: First. To pay 11. PERPETUITIES PERSONAL PROPERTY
over upon the first day of October in each COMMON LAW.
and every year during my natural life to A trust to pay a portion of the income to said Washington and Jefferson College, upon seven annuitants for life and to the survivor
the receipts of its treasurer, out of the net of them, remainder to the use of a college for the establishment of a professorship, was not
income arising from said securities, the sum violative of the common-law rule against per- of eighteen hundred dollars to be applied to petuities prohibiting the tying up of estates the maintenance of said professorship. Seceither in personal or real property for more than a life or lives in being and 21 years.
ond. To take and apply to my own individ[Ed. Note.-For cases in point, see vol. 39,
ual use, during the term of my natural life, Cent. Dig. Perpetuities, 88 46-55.]
all the residue of the net annual income of 12. EVIDENCE – PRESUMPTIONS - LAWS
said securities. Third. From and immediate
OF OTHER STATES.
ly after my decease I hereby constitute and There is no presumption that the statute
appoint the said Washington and Jefferson law of New York prevails in other states, but there is a presumption that the common law
College trustee in my room and stead and obtains there.
direct and empower said college to immedi[Ed. Note.-For cases in point, see vol. 20, ately take and hold said securities as I now Cent. Dig. Evidence, § 101 ; vol. 10, Cent. Dig. hold them in trust to presently pay out of Common Law, 88 14-16.)
the principal of the same as follows." Here 13. APPEAL REVERSAL DISPOSITION OF follow gifts to the legatees named in his CAUSE-NEW TRIAL.
will. 66 * Where plaintiff relied on a trust which
After thirty-two thousand was invalid in New York, but which depended
dollars have been paid by Washington and for its validity on the laws of Pennsylvania Jefferson College, my successor in this trust, which were not proved, a judgment of the Ap
out of the principal sum of the securities pellate Division reversing a judgment in favor of plaintiff should have granted a new trial in
therein embraced, and hereinafter enumerorder that such foreign laws might be establish- ated, the remaining securities shall be held ed as a question of fact, instead of dismissing by said college in trust to pay out of the net plaintiff's complaint.
income annually, counting from the date of [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $8 4597-4599.]
my death, the following sums, to wit.” The
same annuitants mentioned in his will. "The Appeal from Supreme Court, Appellate Di. balance of the net income of said remaining vision, First Department.
securities during the lives of said annuitants Action by Robert S. Robb, against the (and after the death of the survivor of them) Washington and Jefferson College and oth- all the net income thereof shall be devoted ers. From a judgment of the Appellate Di- by the said Washington and Jefferson College vision (93 N. Y. Supp. 92, 103 App. Div. to perpetually maintain a professorship in 327), reversing the judgment of the Trial rhetoric and oratory to be called the Wallace Term in favor of plaintiff, and dismissing Professorship of Rhetoric and Oratory.” the complaint, plaintiff appeals. Modified The declaration contains an enumeration and affirmed.
of the particular securities the subject of the trust, which amount in the aggregates proved a parol agreement antedating the decto about $130,000. The settler reserved laration of trust by which the college was to himself the right to modify the pro- to receive the securities mentioned in the vision as to the legacies and annuities, pro- declaration in consideration of its founding vided he should not thereby increase their and maintaining the professorial chair. We aggregate amount. Having executed this think not. The testimony shows merely indeclaration, Mr. Wallace thereupon made definite negotiations which were not cona codicil to his will by which he revoked summated until the execution of the declaraall the legacies and annuities except that tion of trust, and into which tue prior conto his wife and the residuary gift to the versations must be deemed to have merged. college. Mr. Wallace died in May, 1903, We are, therefore, brougac to a consideration leaving an estate not exceeding $10.000 in ad- of the character, effect, and validity of the dition to the securities mentioned in the dec- declaration of trust and of the several oblaration of trust. The plaintiff brought this jections to it raised by the counsel for the action as one of the next of kin of the de- appellant. That the execution and delivery ceased to have the trust deed declared in- to the college of the declaration or deed was operative, the securities therein mentioned sufficient to create a trust if the terms of the adjudged part of the testator's estate, and trust were not illegal we think very clear. that so much of the legacy to the college as While to make an effective gift delivery to exceeded in value one-half of the testator's the donee is essential (Young v. Young, 80 estate be distributed among his next of kin X. Y. 422, 36 Am. Rep. 634), that is not necas in the case of intestacy. The case was essary in the creation of a trust. The disdecided by the Trial Term in favor of the tinction between the two cases is pointed out plaintiff. The Appellate Division reversed in the case cited, and in the later one of the judgment of the Trial Term and awarded Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, the defendant final judgment dismissing the 6 L. R. A. 403, 15 Am. St. Rep. 531. In the complaint, with costs.
case of personal property an unequivocal decHenry W. Goodrich, for appellant. M.
laration of the trust by the settlor impresses Linn Bruce and John L. Hill, for respond
with a trust character, and converts his ents.
legal title to that of trustee for the person
for whose benefit the trust is created. MarCULLEN, C. J. (after stating the facts).
tin v. Funk, 75 N. Y. 134, 31 Am. Rep. 446; One of the learned counsel for tue respond
Young v. Young, supra; Beaver v. Beaver,
Here the founder of the trust exe
supra. ents challenges the right of the plaintiff to maintain this action and to take ad
cuted the declaration under seal and delivervantage of the prolibition contained in
ed it to one of the cestuis que trustent. This, chapter 300, p. 607, of the Laws of 1860,
under all the authorities, was sufficient. which enacts that “no person having a hus
It is contended, however, that if the deed band, wife, child or parent shall, by bis
of trust constituted two separate consecutive or her last will and testament, devise or be
trusts, one during the life of the founder, the queath to any charitable, etc., corporation
other after his decease, as the Appellate Divi* more than one-half of his or her
sion has held, then the second trust was testestate," because he is not one of the relatives
amentary in its character and the trust deed mentioned in the statute, but only a collater
not having been executed in compliance with al. The Appellate Division overruled this
the statutory requirement for the execution claim, and rightly so, for the question is not
of wills, fails. This was the ground on an open one. Forty years ago, in Harris v.
which the trial court based its decision. American Bible Society, 2 Abb. Dec. 316,
This argument is based on a clear misapprethis court held that the provision of the
hension of the distinction between a testastatute may be insisted on by any person
mentary instrument and a deed. Doubtless who derives a benefit therefrom, although the second trust created by the declaration not one of the relatives designated in the
was not to take effect in possession or enjoy. statute. The case has been repeatedly fol
ment till the death of the founder. But this lowed, and its authority has never been ques- was by reason of the terms of the instrument tioned. As late as the 136th New York,
itself, not because that instrument was testathis court said in Matter of Will of Walker, mentary. See Grafing v. Heilmann, 1 App. 136 N. Y. 20, 32 N. E. 633, that a will is to Div. 260, 37 N. Y. Supp. 253, affirmed on opinbe read as if the statutory restriction was ion below, 153 N. Y. 673, 48 N. E. 1104. Unpart of it and it had in terms provided that der the declaration the rights of the benefithe legacies or devises given by it to chari- ciaries accrued at the time of its execution table corporations should not exceed one-half and delivery, and, except as the instrument of the estate. Though the plaintiff can take itself contained a power of revocation either advantage of the statute, there is no advant- in whole or part, those rights could not be age to be taken in this case if the deed or affected or modified by the subsequent acts declaration of trust stands, for in that event of the founder of the trust. This distinction the legacy to the widow exceeds one-half of is clearly pointed out by Mr. Jarman, in his the testator's estate. The learned Appellate work on Wills (page 17): “A will is an Division was of the opinion that there was instrument by which a person makes a disposition of his property, to take effect after were those to which, in the last days of life, his decease, and which is in its own nature à man, acting under mistaken notions of ambulatory and revocable during his life. It duty, might voluntarily or through persuais this ambulatory quality which forms the sion be induced to give his property in discharacteristics of wills; for, though a dis- regard of the just claims of kindred.” The position by deed may postpone the possession danger or possible evil to guard against or enjoyment, or even the vesting, until the which the statute was enacted would gendeath of the disposing party, yet the post-erally, though not exclusively, arise in the ponement is, in such case, produced by the case of donations by will. Therefore it was express terms, and does not result from the entirely within the power and the right of nature of the instrument. Thus, if a man, Mr. Wallace to give to the college by deed by deed, limit lands to the use of himself of trust such part of his estate as he saw fit, for life, with remainder to the use of A. in and, even though this was done in view of fee, the effect upon usufructuary enjoyment the statutory restrictions on donations by is precisely the same as if he should, by his will, his act contravened neither the letter will, make an immediate devise of such lands nor the spirit of the statute. to A. in fee; and yet the case fully illus- We are now brought to the interpretation trates the distinction in question, for, in the of the deed of trust and the legality of its former instance, A., immediately on the exe- provisions. We agree with the learned Apcution of the deed, becomes entitled to a pellate Division that it constituted two inderemainder in fee, though it is not to take pendent trusts successive and not concurrent; effect in possession until the decease of the the first during the life of the settlor, the settlor, while, in the latter, he would take second after his decease. The validity of no interest whatever until the decease of the the first, and of the direction that at the testator should have called the instrument death of Mr. Wallace certain sums, aggre into operation." Nor does the fact that a gating $32,000, should be paid to specified deed of trust contains a full power of revoca- beneficiaries, seems subject to no criticism. tion render the instrument testamentary. These provisions are readily severed from This was expressly decided by this court in the subsequent trust and should be upheld Van Cott v. Prentice, 104 N. Y. 45, 10 N. E. regardless of the validity of that trust. Har257. In the present case only a limited pow- rison V. Harrison, 36 N. Y. 543; Woodgate er of subsequent modification was reserved v. Fleet, 64 N. Y. 566; Underwood v. Curtis, to the founder.
127 N. Y. 523, 28 N. E. 585. Those sums, It is next contended that the creation of therefore, constituted no part of the testathe trust was a fraud on the provisions of tor's estate. As to whether the gift of the the act of 1860 already cited. This conten- remainder of the estate subject to the paytion also proceeds on a misconception of the ment of the annuities is to be considered as purpose and effect of that statute. The stat- a gift to its own use, under the doctrine of ute, as said by Vann, J., in Amherst College Bird v. Merklee, 144 N. Y. 544, 39 N. E. 645, v. Ritch, 151 N. Y. 282, 45 N. E. 876, 37 L. 27 L. R. A. 423, and Matter of Griffin's Will, R. A. 305, "does not prohibit charitable gifts 167 N. Y. 71, 60 N. E. 284, or the creation of altogether, but only under certain circum- a trust, it is unnecessary to determine, for stances, to a certain extent and by a certain even accepting the latter view, under the law method. If the gift is not made by will, or of 1893 the trust would be valid. Allen v. if made by will and the testator leaves no Stevens, 161 N. Y. 122, 55 N. E. 568. This surviving relative of the degree named, or provision, therefore, creates no embarrassit is to charities other than those mentioned, ment. The difficulty in the case arises from there is no prohibition. It does not compel the fact that the property is first given in a testator to leave his property or any part trust for the payment out of the income of thereof to relatives, It does not prevent him annuities to seven annuitants during their from giving all that he has to charity during
respective lives. That a trust to pay an anhis lifetime. It is aimed simply at the giv- nuity is a valid trust under our statutes, and ing of an undue proportion to charity by that such an annuity is inalienable, was de will, when certain near relations have, in the cided by this court in Cochrane v. Schell, opinion of the Legislature, a better claim." 140 N. Y. 516, 35 N. E. 971. The language The same doctrine is asserted in the dissent- of the trust deed or declaration is too clear ing opinion in that case of Chief Judge An- and explicit to permit the construction that drews: “What the statute plainly did in- It was intended to make the annuities a tend was to prohibit one form of donation mere charge on the corpus of the estate, to corporations, described in the act, which Construed as a trust to pay annuities, the would exceed one-half of the donor's estate, trust is invalid under the laws of this state namely, a donation by will. The donor was because it suspends the absolute ownership not permitted by will to give to the charities of the property for more than two lives in mentioned beyond the prescribed amount. being. Personal Property Law, Laws 1897, The statute regulated and restricted testa- p. 507, c. 417, § 2. The suggestion is made by mentary donations, and no others.
the learned Appellate Division, as we unThe corporations enumerated in the statute derstand the opinion, that since the ultimate