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saying: "Suppose he had given a real estate sonal estate, so as to have ascertained what in the manner you specify, it is clear that it the fund was and have been ready to diswill neither depend upon the caprice of the tribute, if the law would allow such distrustee to sell, for that would be contrary tribution, before her decease. Can it be said to all common sense, nor upon his dilatori- that because this was not done that she lost ness; in some way it may be solu immediate- her right to the legacy, and it never became ly; but I should not inquire when a real vested? I think such a rule would be at war estate might have been sold with all possible with the intention of the testator, and candiligence.” The respondents' counsel places not be upheld upon any legal basis.” Again, great reliance upon the case of Johnson v. in reference to the power of sale, it is said:

Crook, L. R. 12 Ch. Div. 639. There the di- "Strictly construed, he was also at liberty

rection 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

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

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.

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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.

Judgments affirmed.

(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 neces sary 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 Di- the premium has been made payable semivision, First Department.

annually, and this fact brings it exactly withAction by Evelina Bracher against the in the conditions. If, in truth, the policy Equitable Life Assurance Society of the Unit- was issued on the basis of an annual premied States. From an order of the Appellate um, as is declared, then the propriety of the Division (92 N. Y. Supp. 1105, 103 App. Div. deduction of subsequently accruing install269), reversing a judgment entered on a de- ments during the policy year is apparent. cision of the trial court (86 N. Y. Supp. 557) Had the premiums been made payable anin favor of plaintiff, and granting a new nually the defendant would have received trial, defendant appeals. Reversed.

in advance the same sum it now seeks to deCharles W. Pierson, for appellant. R. J.

duct. If, for the convenience of the policyMoses, for respondent.

holder or to suit his means, he is allowed

to make the payments semiannually or quarCULLEN, C. J. This appeal presents the

terly there is no reason why the defendant single question of the construction of the con

should be at a greater pecuniary loss than dition of an insurance policy by which the

if the payment had been made annually. defendant, in consideration of the payment

It is not at all a question of interest on the in advance of $383.90, and of the payment

deferred payments, which would be trifling, of the same sum on or before the 9th day

but of the right of the defendant to receive of February and August in every year there

the principal of those payments. Nor is there after during the life of the insured, agreed any necessary inconsistency between the to pay upon the death of the insured to the promise to pay the $10,000 and the right to plaintiff the sum of $10,000. The third con

deduct the unpaid premium of the policy year. dition of the policy, which in terms was made

Had the deceased died in the second half of part of the contract of insurance, provides:

the policy year, no deduction would be made; “Although the contract is based on the re

for then the whole annual premium would ceipt of premiums annually in advance, the

have been paid. We think no other conclupremium may be made in semiannual or

sion can be reached, unless we discard the quarterly installments in advance, but in such

express statement that the policy is based case any future installments which at the

on an annual premium-a statement supportmaturity of the contract are necessary to

ed by other provisions in the policy which complete the full year's premium shall be

give the exact value of the policy for cash, deducted from the amount of the claim." for loans, and for paid-up life policies at The insured died on November 16, 1902, and

the end of each year. the controversy is over the premium which,

The order of the Appellate Division should had the insured lived, would have become pay

be reversed, and the judgment of the Trial able on February 9, 1903. The defendant 9

Term affirmed, with costs in both courts. claimed the right, under the condition above quoted, to deduct this from the policy; the

GRAY, EDWARD T. BARTLETT, VANN, deceased having died in the first half of the and HISCOCK, JJ., concur. HAIGHT and policy year. The trial judge decided the con- WERNER, JJ., dissent, troversy in favor of the defendant, and the judgment entered on his decision has been Order reversed, etc. reversed by the Appellate Division by a divided court.

(186 N. Y. 139) We are of opinion that the view taken by the trial judge was correct. The decision

JOIINSON v. CITY OF NEW YORK et al. of the Appellate Division gives no effect to (Court of Appeals of New York. Oct. 2, 1906.) the condition of the policy above recited. 1. MUNICIPAL CORPORATIONS-RESOLUTIONSThis is conceded by the learned judge who

VALIDITY-AUTOMOBILE RACES.

Laws 1902, p. 688, c. 266, makes it a wrote for the majority of the court, who held

misdemeanor for any person to operate an that the condition had no application to this automobile on a highway within a city at a policy, which, instead of providing for an greater rate of speed than eight miles an hour annual premium, provided for semiannual

except where a greater rate of speed is per

mitted by the ordinance of the city. A resolupremiums. He further thought that the con

tion of the council of a city authorized an autodition was inconsistent with the absolute obli- mobile club to conduct speed trials on a highgation on the face of the policy to pay the way, and suspended the ordinances regulating sum of $10,000. We entertain a different

the speed of vehicles. Held, that the resolution

was invalid as a regulation of the speed of view, and think that the condition is par

automobiles and operated as a participation by ticularly applicable to policies of the charac- the city in the commission of the unlawful act ter of the one before us. There is the ex

of speeding automobiles at a greater rate of press declaration that the contract is based

speed than eight miles an hour.

2. SAME. on the receipt of the premiums annually in

City Charter, Laws 1901, p. 28, c. 466, advance, and this is followed by the state- § 50 authorizes the council of a city to regument, not that annual premiums are payable late the speed of vehicles in the streets. A resoluin semiannual or quarterly installments in

tion of the council authorized an automobile

club to conduct speed trials on a highway, and advance, but that the premium “may be made

suspended ordinances regulating the speed of payable" in such manner. In this policy automobiles. Held, that the resolution was

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invalid because the authority given tu the council way. It was held under the assumed authorwas to regulate public travel, and the occupa

ity of the following resolution adopted by tion of the highway by the automobile club was an obstruction of the highway and per se

the board of aldermen: "Resolved, That upa nuisance within the express provisions of on the recommendation of the local board, Pen. Code, $ 385, subsec. 3.

first district, borough of Richmond, permis3. SAME-INFLICTION OF PERSONAL INJURY- sion be and the same hereby is given to the GROUND OF RECOVERY.

Automobile Club of America to conduct A spectator voluntarily present to witness an automobile speed contest in a public high

speed trials for automobiles on the Southside way cannot recover for an injury received by Boulevard, in the Fourth Ward of the borbeing struck by an automobile swerving in its

ough of Richmond, on Saturday, May 31, course and leaving the highway, on the ground of the illegality of the contest, but must prove

1902, between the hours of 11 o'clock a. m. negligence.

and 4 o'clock p. m., or in case the day be 4. SAME.

stormy, on the first clear week day thereafter The right of a spectator at an automobile

between the same hours, and that during speed contest in a public highway to recover for injuries received by being struck by an automu

said hours on said day a speed of greater bile swerving in its course and leaving the than eight miles per hour may be attained, highway, is not affected by the fact that he to which end any and all ordinances regulastood on land adjacent to the highway, and was

ting the speed of vehicles is hereby suspenda trespasser thereon. 5. SAME-NUISANCE-QUESTION FOR JURY.

ed, such suspension to continue, however, Whether an automobile speed contest on only for the day and place on which the a public highway authorized by the municipality privilege herein mentioned and conveyed is was as conducted a nuisance within Pen. Code,

exercised; and provided, further, that the $385, subsec. 4, defining a public nuisance as the doing of an act which in any way renders

said Automobile Club of America furnish a considerable number of persons insecure in all proper police protection over that part life, etc., held under the facts for the jury. of the Southside Boulevard over which the 6. SAME-NEGLIGENCE-QUESTION FOR JURY. said trials are to be conducted." The plain

A city illegally permitted an automobile club to hold a speed contest on a public high

tiff was present as a spectator. She came way. A spectator at the contest was struck from her residence about five miles away in by an automobile swerving in its course, and company with her husband and others, as leaving the highway. Held, that the question of the negligence of the city and the club was,

she said, "to see the races." She first witunder the facts, for the jury.

nessed the race from the highway, but find[Ed. Note.-For cases in point, see vol. 36,

ing a better view could be obtained, she Cent. Dig. Municipal Corporations, § 1747.] passed from the highway into an adjacent 7. SAME-CONTRIBUTORY NEGLIGENCE-QUES- clump of woods and there remained. Many TION FOR JURY.

automobiles went over the course without misThe question of the contributory negligence hap. Finally, one machine, moving at the rate of the spectator held, under the facts, for the jury.

of about a mile a minute, by some mischance [Ed. Note.–For cases in point, see vol. 36, was deflected from the road into the woods Cent. Dig. Municipal Corporations, 88 1754, and struck and injured the plaintiff. At the 1755.]

conclusion of the evidence the learned trial Appeal from Supreme Court, Appellate judge, over the objection and exception of Division, Second Department.

the several defendants, directed a verdict Action by Louise Johnson against the City against them all on the ground that the of New York and others. From a judgment

speed contest was unlawful and a nuisance, of the Appellate Division of the Second De- and submitted to the jury only the question partment (96 N. Y. Supp. 754, 109 App. Div. of damages. That judgment has been af821) affirming a judgment entered on a ver- firmed by the Appellate Division, and from dict at Trial Term in favor of plaintiff, de- the judgment of the Appellate Division this fendants appeal. Reversed, and a new trial appeal is taken. ordered.

It may be conceded that the action of the

city in authorizing the use of a public highCharles F. Brown, John G. Milburn, W.

way as a racecourse for automobiles comW. Niles, and James D. Bell, for appellants.

peting against time was illegal, and that the S. F. Kneeland, for respondent.

act of the other defendants in holding the

race under that permission was equally ilCULLEN, C. J. This action was brought legal. Under the law, at the time of this acto recover damages for personal injuries suf- cident, any person driving or operating an fered by the plaintiff by being struck by an automobile or motor vehicle upon any highautomobile while witnessing a speed test way within any city or incorporated village or race of the machines in a public highway at a greater rate of speed than eight miles in the borough of Richmond, city of New an hour, "except where a greater rate of York. The highway, which was in an out- speed is permitted by the ordinance of the lying part of the city and known as the city," was guilty of a misdemeanor. Laws “Southside Boulevard,” had been used as a 1902, p. 688, c. 266. The special ordinance resort for fast driving for a number of years. under which the race took place was passed The race or speed contest was conducted by the common council on April 15, 1902. by sending the automobiles, a single one at That this ordinance, which did not assume a time, over a measured distance on the high- to authorize the operation of automobiles generally at a greater rate than that pre- sustained. This it is unnecessary to deterscribed in the statute, and permitted only mine. In those cases every member of the certain specified persons to use the highway public has an equal right to share in the as a racecourse on a particular occasion, was privileges granted in the street. There is not only invalid as a regulation of the speed no appropriation of it for a private use. The of automobiles, but also operated as a par- present case is radically different. The octicipation by the city in the commission of cupation of the highway was to be exclusive the unlawful act, is settied by the recent in the parties to whom the permission was decision of this court in jandau v. City of granted. Therefore, the race or speed conNew York, 180 N. Y. 48, '12 N. E. 631, 105 test held by the defendants was an unlawful Ard. St. Rep. 709. In that case the plaintiff use and obstruction of the highway and per was injured by a discharge of fireworks in se a nuisance. Pen. Code, $ 385, subsec. 3. a city street. There had been a general ordi- But granting that the action of the denance passed by the municipality which for- fendants in the use of the highway was ilbade the discharge of fireworks in the streets. legal, the question remains: Was it illegal A short time prior to the accident the com- against the plaintiff so as to render the parmon council passed a resolution suspending ties participating therein liable to her solely the ordinance so far as it might apply to the by reason of the illegality of their acts and meetings or parades of political parties dur- regardless of any element of negligence or ing the election campaign of 1902, the sus- other misconduct? If the plaintiff had been pension to continue till November 10th of a traveler on the highway when she met with that year.

It was conceded by this court injury a very different question would be that the municipality would not have been presented. Highways are constructed for liable for failure to enact general ordinances public travel, and, as already said, the acts restricting or forbidding the discharge of of the defendants were, doubtless, an illegal fireworks, and it was contended that the ac- interference with the rights of the traveler. tion of the common council was a mere re- It may well be that for an injury to the peal pro tanto of the previous ordinances, traveler, or to the occupants of the lands ada repeal for which the city could not be held jacent to the highway, or even to a person liable any more than for failure to pass the who visited the scene of the race for the puroriginal ordinance. This court took a differ- pose of getting evidence against the defendent view, and we held that the resolution ants and prosecuting them for their unlawful authorizing the discharge of fireworks at acts, the defendants would have been abpolitical meetings and parades was not an solutely liable regardless of the skill or care exercise of the power possessed by the local exercised. But the plaintiff was in no such authorities to regulate the use and discharge situation. She was not even a casual spectaof fireworks, but merely an unlawful special tor whose attention was drawn to the race license or permission to individuals. The while she was traveling in the vicinity. She action of the defendants was also illegal in went from her home, a distance of five miles other respects than those relating to the rate from the scene of the race, expressly to witof speed. It assumed to grant to individuals ness it and to enjoy the pleasure that the the right to appropriate the highway for a contest offered. As to the elements which private purpose, to wit, that of a racecourse, made the contest illegal she was aware of to the exclusion of the public. Authority their existence. She knew it was to take reposed in the common council by the charter place on a highway, and she knew it was to (Laws 1901, p. 28, c. 466, § 50) “to regulate be a contest for speed, and that, therefore, the use of streets and sidewalks by foot the automobiles would be driven at the greatpassengers, animals and vehicles, to regulate est speed of which they were capable. The the speed at which vehicles are propelled in learned Appellate Division has said: "It is the streets," etc., gave no power to divert possible that a different view might be taken the highway from public to private use. had it appeared that the plaintiff knew or The authority was to regulate public travel, had any reason to know of the unlawful nanot to exclude the public. Of course, in the ture of the contest. There is, however, nocongested condition of many of the streets thing in the case tending to indicate that of the city of New York restrictions, pos- she was aware that they were not being sibly of a somewhat arbitrary character, are conducted under the operation and sanction necessary to secure public passage along the of a general ordinance or by virtue of a highway; otherwise intolerable confusion legal and valid permit.” It is entirely poswould exist and the streets become blocked sible that as a matter of fact the plaintiff so that travelers could move in no direction. did not know that the race on the highway Such regulations are within the power of the was illegal, but it was illegal not from any

unicipal authorities. So, also, it may be want of permit, but because there was no that the right of the municipal authorities

statutory power to grant a permit to use the to allow, at certain seasons of the year and highway for a private purpose. The plaintiff, on certain streets where it can be safely done, like every other person, is chargeable with the operation of vehicles at a greater speed knowledge of law, however ignorant in fact than elsewhere permitted and the use of she may have been of it. But it is equally the street for sleighing or coasting, can be probable that the defendants thought that

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