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saying: "Suppose he had given a real estate in the manner you specify, it is clear that it will neither depend upon the caprice of the trustee to sell, for that would be contrary to all common sense, nor upon his dilatoriness; in some way it may be solu immediately; but I should not inquire when a real estate might have been sold with all possible diligence." The respondents' counsel places great reliance upon the case of Johnson v. Crook, L. R. 12 Ch. Div. 639. There the direction of the will was: "But in case the said Thomas Keeling shall depart this life before he shall actually have received the whole of his share and whether
the same shall have become payable or not, I direct *** such part and parts thereof as he shall not have actually received as aforesaid, shall be paid, assigned and transferred unto the said Joseph Gill." In the face of such language there was no room for doubt as to the intention of the testator. Counsel for the primary legatee did not question the construction of the will, but contended the gift over was void for uncertainty, as whether it took effect or not might depend on the diligence or dilatoriness of the executor. It was the validity of such a gift, not the interpretation of the testator's language, that was considered in that case, and there is nothing contained in the opinion of the Master of the Rolls inconsistent with the doctrine of the earlier cases. In fact, the Master of the Rolls concedes the doctrine of those cases as to the interpretation of such a provision in a will, but contends they are not authority for the proposition that, if the direction of the testator to make the gift over depend on the absence of actual payment is indisputedly expressed, the gift would be void.
The argument of Lord Thurlow is presented in substance, though very much elaborated, in McKinstry v. Sanders, 2 Thomp. & C. 181, which case was affirmed by this court on the opinion rendered in the Supreme Court. There was a direction to sell and convert the real estate, pay debts and certain legacies, provide for certain annuities, and upon the settlement of the estate, if it did not exceed the sum of $20,000, pay over the moneys remaining to the trustees of a church, but if upon settling the estate there should remain more than $20,000, then divide the excess to the testator's nephews and nieces "who shall then be living, to be equally divided between them." It was held that the representatives of the nephews and nieces who survived the testator, but died before the real estate was converted or the estate settled, were entitled to share in the distribution. It was there said: "In the case of Mrs. Sanders [a niece] the property was all in existence when the testator died and one year afterward, when she died. Perhaps, with reasonable expedition in the transaction of the business, the executor may have been able to realize from the real and per
sonal estate, so as to have ascertained what the fund was and have been ready to distribute, if the law would allow such distribution, before her decease. Can it be said that because this was not done that she lost her right to the legacy, and it never became vested? I think such a rule would be at war with the intention of the testator, and cannot be upheld upon any legal basis." Again, in reference to the power of sale, it is said: "Strictly construed, he was also at liberty to wait until all died but himself before making a settlement, and thus secure to himself, if he should survive, the whole estate which remained. Conceding that this time should be reasonable, and that the executor might be compelled to distribute, by an action at law, still, before the case could be brought to a final determination, some one or more may have died and by the delay have been deprived of the interest intended to be bequeathed. It cannot be supposed that the testator could have had any intention thus to vest the executor with a power so arbitrary." All this is equally true of the case before us, and though it is conceded that the executors properly discharged their duties (which was equally the fact in the McKinstry Case) the question is not what has been done, but what might have been done.
But in my view it is unnecessary to pursue the argument, for in the disposition of this case we are concluded by authority. In Finley v. Bent, 95 N. Y. 364, the testator directed his executors to convert his real estate, divide the proceeds thereof into shares and invest the same for the benefit of his children, paying the income to them respectively. At the expiration of one year from his death they were to pay each child out of the principal of his share $7,000, at the expiration of two years thereafter $5,000, and at the expiration of five years the remainder of the share. The will then provided that in case of the death of any child "before the full payment of the whole of his or her share of such residue" the executors should pay the share of the child, or so much thereof as then remained unpaid, to his or her lawful issue. A child died after the lapse of five years, but the real estate not having been sold at that time, the whole of the share was not received by her. There the contest was, as in the present case, between a grandchild and the representatives of its parent over the proceeds of real estate sold after the parent's death. This court stated the general rule to be: "A limitation over, to take effect in case of the death of the legatee before he has received his share, does not take effect if the legatee lives to become entitled to it, though he die before it has been paid," and held that the representatives of the daughter of the testator were entitled to the fund.
It is urged that the proceeds of the real estate could be payable only after the real estate was sold, because until such sale it
was physically impossible there should be any proceeds to pay. This argument overlooks the fact that in law the conversion of the real estate is held to take effect as of the instant of the testator's death, and that when actually made the condition of the proceeds relates back to that time. From the moment of the testator's death the conversion took place and the land became money for all purposes of administration. Horton v. McCoy, 47 N. Y. 21; Fisher v. Banta, 66 N. Y. 468. Nor is this a mere legal fiction. On the contrary, while the land would descend to the heirs at law subject to the execution of the power, such heirs would take only a naked title, and the rents and profits of the land prior to the sale would go, not to the heirs, but to the legatees of the proceeds of the sale. Moncrief v. Ross, 50 N. Y. 431. Such legatees may, if under no disability, with the concurrence of all, elect to take the land and thus defeat a power of sale. Greenland v. Waddell, 116 N. Y. 234, 22 N. E. 367, 15 Am. St. Rep. 400. Therefore, until the exercise of the power of sale the testator's son Frank was the equitable owner of his share of the father's real estate, and the transfer and conveyance to him was immediate on his father's death, by the terms of the latter's will. Hence, if we look at what may be termed the physical attributes of the property, the only effect of a subsequent sale under the power was to transmute what Frank already possessed as land into money. But the question was in the Finley Case the same as it is in the present one, and there it was as impossible to physically pay over the proceeds of land as it is here. Nor is there any difference in the provisions of the two wills that affect the question. There the payment and transfer was to be made after the lapse of years; here the gift to the testator's sons is immediate, for no formal conveyance by the executors is necessary.
Lastly, it is urged that the construction of the appellants renders the fourth subdivision meaningless or unnecessary. Not so. As to the share of any son dying before the testator, it was intended to vest such share in his issue. It is true that such a provision, in case of the death of a child before the testator, is, under our statute, now unnecessary. Nevertheless it is constantly inserted, and properly so, because the testator may leave real property in jurisdictions where no such statute exists. Moreover, there was one contingency, and that one contemplated by the testator and appearing on the face of his will, in which the provision would be both effective and necessary. Had the testator's widow survived him and any child died before her death, then under this clause such child's share in the trust fund for the widow would go to his issue and not to his personal representatives. I am of opinion, therefore, that so far as relates to the proceeds of the Virginia real estate the judgment below
should be reversed and the fund awarded to the appellants.
A further question was litigated on the trial and has been decided by the judgments below of the rights of the respective parties to share in the trust funds provided for the testator's daughters, in case any such daughter should die without issue; that is to say, whether in such case a share of the fund should be awarded to the appellants or to the respondents. The courts below have held that in that event the respondents will take. We think this decision correct. There is no direct gift in such contingency of the remainder of the share, and the general rule is, "Where the only words of gift are found in the direction to divide or pay at a future time, the gift is future, not immediate; contingent, not vested." Matter of Crane, 164 N. Y. 71, 58 N. E. 47; .Matter of Baer, 147 N. Y. 348, 41 N. E. 702; Rudd v. Cornell, 171 N. Y. 114, 63 N. E. 823. It must be confessed that this rule readily yields to anything in a will which appears to indicate a contrary intention, but in the present case, so far from there being anything in the will to indicate such an intention, the application of the rule harmonizes with the general testamentary scheme that interest should not vest until there is a right of present enjoyment.
The judgments of the Appellate Division and of the Special Term should be modified in accordance with this opinion, with costs to both parties payable out of the fund.
O'BRIEN, VANN, and WILLARD BARTLETT, JJ., concur with HAIGHT, J. WERNER and HISCOCK, JJ., concur with CULLEN, C. J.
(186 N. Y. 62) BRACHER v. EQUITABLE LIFE ASSUR. SOCIETY OF UNITED STATES. (Court of Appeals of New York. Oct. 2, 1906.) INSURANCE-LIFE POLICY-UNPAID PREMIUMS -DEDUCTION.
A life policy, providing for semiannual premium payments on the 9th day of February and August in every year during insured's life, contained a condition that, though "the contract is based on the receipt of premiums annually in advance," the premiums might be paid in semiannual or quarterly installments in advance, but that, if premiums were paid in semiannual installments, any installment which at the maturity of the contract was necessary to complete the full year premium should be deducted from the amount of the claim. The policy also declared that this provision should form a part of the contract. Held, that such provision was applicable to the policy in question, and that where insured died November 16, 1902, in the first half of the policy year, insurer was entitled to deduct the premium which would have become payable on February 9, 1903, had insured lived.
[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1308.]
Haight and Werner, JJ., dissenting.
Appeal from Supreme Court, Appellate Division, First Department.
Action by Evelina Bracher against the Equitable Life Assurance Society of the United States. From an order of the Appellate Division (92 N. Y. Supp. 1105, 103 App. Div. 269), reversing a judgment entered on a decision of the trial court (86 N. Y. Supp. 557) in favor of plaintiff, and granting a new trial, defendant appeals. Reversed.
Charles W. Pierson, for appellant. R. J. Moses, for respondent.
CULLEN, C. J. This appeal presents the single question of the construction of the condition of an insurance policy by which the defendant, in consideration of the payment in advance of $383.90, and of the payment of the same sum on or before the 9th day of February and August in every year thereafter during the life of the insured, agreed to pay upon the death of the insured to the plaintiff the sum of $10,000. The third condition of the policy, which in terms was made part of the contract of insurance, provides: "Although the contract is based on the receipt of premiums annually in advance, the premium may be made in semiannual or quarterly installments in advance, but in such case any future installments which at the maturity of the contract are necessary to complete the full year's premium shall be deducted from the amount of the claim." The insured died on November 16, 1902, and the controversy is over the premium which, had the insured lived, would have become payable on February 9, 1903. The defendant claimed the right, under the condition above quoted, to deduct this from the policy; the deceased having died in the first half of the policy year. The trial judge decided the controversy in favor of the defendant, and the judgment entered on his decision has been reversed by the Appellate Division by a divided court.
We are of opinion that the view taken by the trial judge was correct. The decision of the Appellate Division gives no effect to the condition of the policy above recited. This is conceded by the learned judge who wrote for the majority of the court, who held that the condition had no application to this policy, which, instead of providing for an annual premium, provided for semiannual premiums. He further thought that the condition was inconsistent with the absolute obligation on the face of the policy to pay the sum of $10,000. We entertain a different view, and think that the condition is particularly applicable to policies of the character of the one before us. There is the express declaration that the contract is based on the receipt of the premiums annually in advance, and this is followed by the statement, not that annual premiums are payable in semiannual or quarterly installments in advance, but that the premium "may be made payable" in such manner. In this policy
the premium has been made payable semiannually, and this fact brings it exactly within the conditions. If, in truth, the policy was issued on the basis of an annual premium, as is declared, then the propriety of the deduction of subsequently accruing installments during the policy year is apparent. Had the premiums been made payable annually the defendant would have received in advance the same sum it now seeks to deduct. If, for the convenience of the policyholder or to suit his means, he is allowed to make the payments semiannually or quarterly there is no reason why the defendant should be at a greater pecuniary loss than if the payment had been made annually. It is not at all a question of interest on the deferred payments, which would be trifling, but of the right of the defendant to receive
the principal of those payments. Nor is there any necessary inconsistency between the promise to pay the $10,000 and the right to deduct the unpaid premium of the policy year. Had the deceased died in the second half of
the policy year, no deduction would be made; for then the whole annual premium would have been paid. We think no other conclusion can be reached, unless we discard the express statement that the policy is based on an annual premium—a statement supported by other provisions in the policy which give the exact value of the policy for cash, for loans, and for paid-up life policies at the end of each year.
The order of the Appellate Division should be reversed, and the judgment of the Trial Term affirmed, with costs in both courts.
JOHNSON v. CITY OF NEW YORK et al. (Court of Appeals of New York. Oct. 2, 1906.) 1. MUNICIPAL CORPORATIONS-RESOLUTIONSVALIDITY-AUTOMOBILE RACES.
Laws 1902, p. 688, c. 266, makes it a misdemeanor for any person to operate an automobile on a highway within a city at a greater rate of speed than eight miles an hour except where a greater rate of speed is permitted by the ordinance of the city. A resolution of the council of a city authorized an automobile club to conduct speed trials on a highway, and suspended the ordinances regulating the speed of vehicles. Held, that the resolution was invalid as a regulation of the speed of automobiles and operated as a participation by the city in the commission of the unlawful act of speeding automobiles at a greater rate of speed than eight miles an hour. 2. SAME.
City Charter, Laws 1901, p. 28, c. 466, § 50 authorizes the council of a city to regulate the speed of vehicles in the streets. A resolution of the council authorized an automobile club to conduct speed trials on a highway, and suspended ordinances regulating the speed of automobiles. Held, that the resolution was
invalid because the authority given to the council was to regulate public travel, and the occupation of the highway by the automobile club was an obstruction of the highway and per se a nuisance within the express provisions of Pen. Code, § 385, subsec. 3.
3. SAME-INFLICTION OF PERSONAL INJURYGROUND OF RECOVERY.
A spectator voluntarily present to witness an automobile speed contest in a public highway cannot recover for an injury received by being struck by an automobile swerving in its course and leaving the highway, on the ground of the illegality of the contest, but must prove negligence.
The right of a spectator at an automobile speed contest in a public highway to recover for injuries received by being struck by an automobile swerving in its course and leaving the highway, is not affected by the fact that he stood on land adjacent to the highway, and was a trespasser thereon.
5. SAME-NUISANCE-QUESTION FOR JURY.
Whether an automobile speed contest on a public highway authorized by the municipality was as conducted a nuisance within Pen. Code, § 385, subsec. 4, defining a public nuisance as the doing of an act which in any way renders a considerable number of persons insecure in life, etc., held under the facts for the jury. 6. SAME-NEGLIGENCE-QUESTION FOR JURY.
A city illegally permitted an automobile club to hold a speed contest on a public highway. A spectator at the contest was struck by an automobile swerving in its course, and leaving the highway. Held, that the question of the negligence of the city and the club was, under the facts, for the jury.
[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1747.] 7. SAME CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.
The question of the contributory negligence of the spectator held, under the facts, for the jury.
[Ed. Note. For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, §§ 1754, 1755.]
way. It was held under the assumed authority of the following resolution adopted by the board of aldermen: "Resolved, That upon the recommendation of the local board, first district, borough of Richmond, permission be and the same hereby is given to the Automobile Club of America to conduct speed trials for automobiles on the Southside Boulevard, in the Fourth Ward of the borough of Richmond, on Saturday, May 31, 1902, between the hours of 11 o'clock a. m. and 4 o'clock p. m., or in case the day be stormy, on the first clear week day thereafter between the same hours, and that during said hours on said day a speed of greater than eight miles per hour may be attained, to which end any and all ordinances regulating the speed of vehicles is hereby suspended, such suspension to continue, however, only for the day and place on which the privilege herein mentioned and conveyed is exercised; and provided, further, that the said Automobile Club of America furnish all proper police protection over that part of the Southside Boulevard over which the said trials are to be conducted." The plaintiff was present as a spectator. She came from her residence about five miles away in company with her husband and others, as she said, "to see the races." She first witnessed the race from the highway, but finding a better view could be obtained, she passed from the highway into an adjacent clump of woods and there remained. Many automobiles went over the course without mishap. Finally, one machine, moving at the rate of about a mile a minute, by some mischance was deflected from the road into the woods and struck and injured the plaintiff. At the conclusion of the evidence the learned trial
Appeal from Supreme Court, Appellate judge, over the objection and exception of Division, Second Department.
Action by Louise Johnson against the City of New York and others. From a judgment of the Appellate Division of the Second Department (96 N. Y. Supp. 754, 109 App. Div. 821) affirming a judgment entered on a verdict at Trial Term in favor of plaintiff, defendants appeal. Reversed, and a new trial ordered.
Charles F. Brown, John G. Milburn, W. W. Niles, and James D. Bell, for appellants. S. F. Kneeland, for respondent.
CULLEN, C. J. This action was brought to recover damages for personal injuries suffered by the plaintiff by being struck by an automobile while witnessing a speed test or race of the machines in a public highway in the borough of Richmond, city of New York. The highway, which was in an outlying part of the city and known as the "Southside Boulevard," had been used as a resort for fast driving for a number of years. The race or speed contest was conducted by sending the automobiles, a single one at a time, over a measured distance on the high
the several defendants, directed a verdict against them all on the ground that the speed contest was unlawful and a nuisance, and submitted to the jury only the question of damages. That judgment has been affirmed by the Appellate Division, and from the judgment of the Appellate Division this appeal is taken.
It may be conceded that the action of the city in authorizing the use of a public highway as a racecourse for automobiles competing against time was illegal, and that the act of the other defendants in holding the race under that permission was equally illegal. Under the law, at the time of this accident, any person driving or operating an automobile or motor vehicle upon any highway within any city or incorporated village at a greater rate of speed than eight miles an hour, "except where a greater rate of speed is permitted by the ordinance of the city," was guilty of a misdemeanor. Laws 1902, p. 688, c. 266. The special ordinance under which the race took place was passed by the common council on April 15, 1902. That this ordinance, which did not assume to authorize the operation of automobiles
generally at a greater rate than that prescribed in the statute, and permitted only certain specified persons to use the highway as a racecourse on a particular occasion, was not only invalid as a regulation of the speed of automobiles, but also operated as a participation by the city in the commission of the unlawful act, is settied by the recent decision of this court in iandau v. City of New York, 180 N. Y. 48, 72 N. E. 631, 105 Am. St. Rep. 709. In that case the plaintiff was injured by a discharge of fireworks in a city street. There had been a general ordinance passed by the municipality which forbade the discharge of fireworks in the streets. A short time prior to the accident the common council passed a resolution suspending the ordinance so far as it might apply to the meetings or parades of political parties during the election campaign of 1902, the suspension to continue till November 10th of that year. It was conceded by this court that the municipality would not have been liable for failure to enact general ordinances restricting or forbidding the discharge of fireworks, and it was contended that the action of the common council was a mere repeal pro tanto of the previous ordinances, a repeal for which the city could not be held liable any more than for failure to pass the original ordinance. This court took a different view, and we held that the resolution authorizing the discharge of fireworks at political meetings and parades was not an exercise of the power possessed by the local authorities to regulate the use and discharge of fireworks, but merely an unlawful special license or permission to individuals. The action of the defendants was also illegal in other respects than those relating to the rate of speed. It assumed to grant to individuals the right to appropriate the highway for a private purpose, to wit, that of a racecourse, to the exclusion of the public. Authority reposed in the common council by the charter (Laws 1901, p. 28, c. 466, § 50) "to regulate the use of streets and sidewalks by foot passengers, animals and vehicles, to regulate the speed at which vehicles are propelled in the streets," etc., gave no power to divert the highway from public to private use. The authority was to regulate public travel, not to exclude the public. Of course, in the congested condition of many of the streets of the city of New York restrictions, possibly of a somewhat arbitrary character, are necessary to secure public passage along the highway; otherwise intolerable confusion would exist and the streets become blocked so that travelers could move in no direction. Such regulations are within the power of the municipal authorities. So, also, it may be that the right of the municipal authorities to allow, at certain seasons of the year and on certain streets where it can be safely done, the operation of vehicles at a greater speed than elsewhere permitted and the use of the street for sleighing or coasting, can be
sustained. This it is unnecessary to determine. In those cases every member of the public has an equal right to share in the privileges granted in the street. There is no appropriation of it for a private use. The present case is radically different. The occupation of the highway was to be exclusive in the parties to whom the permission was granted. Therefore, the race or speed contest held by the defendants was an unlawful use and obstruction of the highway and per se a nuisance. Pen. Code, § 385, subsec. 3.
But granting that the action of the defendants in the use of the highway was illegal, the question remains: Was it illegal against the plaintiff so as to render the parties participating therein liable to her solely by reason of the illegality of their acts and regardless of any element of negligence or other misconduct? If the plaintiff had been a traveler on the highway when she met with injury a very different question would be presented. Highways are constructed for public travel, and, as already said, the acts of the defendants were, doubtless, an illegal interference with the rights of the traveler. It may well be that for an injury to the traveler, or to the occupants of the lands adjacent to the highway, or even to a person who visited the scene of the race for the purpose of getting evidence against the defendants and prosecuting them for their unlawful acts, the defendants would have been absolutely liable regardless of the skill or care exercised. But the plaintiff was in no such situation. She was not even a casual spectator whose attention was drawn to the race while she was traveling in the vicinity. She went from her home, a distance of five miles from the scene of the race, expressly to witness it and to enjoy the pleasure that the contest offered. As to the elements which made the contest illegal she was aware of their existence. She knew it was to take place on a highway, and she knew it was to be a contest for speed, and that, therefore, the automobiles would be driven at the greatest speed of which they were capable. The learned Appellate Division has said: "It is possible that a different view might be taken had it appeared that the plaintiff knew or had any reason to know of the unlawful nature of the contest. There is, however, nothing in the case tending to indicate that she was aware that they were not being conducted under the operation and sanction of a general ordinance or by virtue of a legal and valid permit." It is entirely possible that as a matter of fact the plaintiff did not know that the race on the highway was illegal, but it was illegal not from any want of permit, but because there was no statutory power to grant a permit to use the highway for a private purpose. The plaintiff, like every other person, is chargeable with knowledge of law, however ignorant in fact she may have been of it. But it is equally probable that the defendants thought that