We find, therefore, that the appellant's counsel is right in the assertion that there is no evidence that the deceased was "on the bridge that night, or that he was seen going in that direction." It could therefore only be conjectured that the intestate was upon the wall or bridge, but there was no basis in the evidence to support the conclusion, and, without that fact established, the condition of the bridge becomes unimportant.

The judgment appealed from should therefore be reversed, and a new trial granted, with costs to abide the event.

(All concur.)

(103 N. Y. 667)

SHAW v. SHELDON.

(Court of Appeals of New York. November 23, 1886.)

1. MASTER AND SERVANT-NEGLIGENCE OF MASTER-LIABILITY OF MASTER TO SERVANT -ASSUMPTION OF RISK.

In an action for damages for injuries resulting in death, sustained by an employe in consequence of stepping upon certain uncovered couplings in defendant's mill, where the evidence shows that deceased entered defendant's service with knowledge and appreciation of the risk resulting from leaving the coupling uncovered, that he was foreman, familiar with the machinery, and capable of appreciating the consequences of leaving the couplings uncovered,-it will be held that he took upon himself the risk of injury, and an action for damages will not lie.1 2. SAME-INSTRUCTIONS TO JURY.

In such a case, if it is proved that defendant's superintendent asked deceased if he wanted the couplings covered, and the latter declined the precaution, it shows defendant took on himself the risks of the omission, and frees the employer from responsibility, and it is therefore error in the court below to charge the jury that it is a circumstance for them to consider upon the question of the assumption of consequent dangers by the deceased.

RUGER, C. J., DANFORTH and FINCH, JJ., dissenting.

Action brought by the widow and administratrix of Peter Shaw, deceased, to recover damages against defendant, owner of a roller-mill at Auburn, New York, for the death of her husband while in defendant's employ caused by injuries resulting from his stepping upon certain revolving couplings, of the rolls in defendant's mill, which, the complaint alleges, were, by defendant's negligence, unprovided with suitable coverings. Judgment for plaintiff. Defendant appeals.

Richard C. Steele, for appellant. Louis Marshall, for respondent.

PER CURIAM. The majority of the court are of opinion that this judgment should be reversed for the reason that the facts establish beyond dispute that the injured employe entered the service, and remained in it, with a full knowledge and appreciation of the risk and danger resulting from having the couplings uncovered. The fact was entirely obvious, the resultant peril plain at a glance, and the injured servant a skilled workman, a foreman of the rollers, accustomed to the machinery and the service, and having the capacity and ability to fully appreciate the consequences of leaving the couplings uncovered. Within the rule applicable to such cases, the plaintiff's intestate took upon himself the risk of injury from the observed and obvious omission. The court are also of opinion that the trial judge erred in charging the jury that if they believed the evidence of the superintendent that he asked the deceased if he wanted the couplings covered, and the latter declined the precaution, it was a circumstance for them to consider upon the question of the assumption of consequent dangers by the deceased. If the fact sworn to was true; if conclusively proved that the servant took upon himself the risks of

1The servant assumes the risk of all dangers of which he had or might be presumed to have knowledge. See Rock v. Indian Orchard Mills, (Mass.) 8 N. E. Rep. 401, and note; Coal Run Coal Co. v. Jones, (Ill.) 8 N. E. Rep. 865.

the omission, and freed the employer from responsibility,-the jury should have been so charged. The principal doubt among us on this branch of the case has been whether the defendant's exception was sufficient to bring up the question.

The judgment should be reversed, and a new trial granted; costs to abide the event.

(All concur, except RUGER, C. J., DANFORTH and FINCH, JJ., dissenting.)

(103 N. Y. 463)

DELAFIELD and others, Individually and as Trustees, etc., v. SHIPMAN, impleaded, etc.

(Court of Appeals of New York. November 23, 1886.) WILL-CONSTRUCTION-VESTED INTERESTS-TENANTS IN COMMON-1 REV. ST. N. Y. 721,

840.

Under section 40, 1 Rev. St. N. Y. 721, providing that "when, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate," an estate given by will to trustees to apply the income thereof equally among the wife and six children of the testator during the life of the wife, and, after her death, the estate to be divided equally among the children living at her death, and, if any child should die leaving issue, such issue to take the share that their parent would take if living, vests their respective interests in the beneficiaries as tenants in common, and the child of a daughter who dies during the life of the testator's widow is entitled to its mother's share of the income of the estate.1

This action was brought for the construction of the will of Richard Delafield, deceased. The will was dated January 17, 1873, and the testator died on the fifth day of November following, leaving a widow, then aged 62 years, and six children,-five daughters and one son,-all unmarried adults, and members of his family. After several devises and bequests the will contained the following clauses:

"All the rest, residue, and remainder of my estate, of every description, and wheresoever situated, I give, devise, and bequeath to my executors and trustees hereinafter named, in trust to apply and manage the same for the benefit, support, and comfort of my wife and children in the manner following, to-wit: In the first place, to provide, during the life of my wife, a furnished house as a home for my wife and children, and out of the income of my estate to provide for the expense of keeping said house, so as to enable my said family to live in the manner they have been accustomed to,-said house, and the keeping of the same, to be under the control and direction of my wife as the head of the establishment; secondly, to keep the house and furniture in good repair, and from time to time to renew the worn-out furniture; thirdly, to pay all taxes and assessments on the property; fourthly, either semi-annually or quarterly to make a dividend of the residue of the income, after satisfying the objects herein before provided for, equally between my wife and my six children, aforesaid, so as to give each of my said children and my wife an qual share of the whole, and each one is to defray out of his or her share of

1As to the construction of wills, and when interests thereby created are vested, and when contingent, see Wiggin v. Perkins, (N. H.) 5 Atl. Rep. 904, and note.

For instances of vested estates, see Id.; Crosby v. Crosby, (N. H.) 5 Atl. Rep. 907; Richardson's Appeal, (Pa.) 6 Atl. Rep. 204; Rubencane v. McKee, (Del.) 6 Atl. Rep. 639; Owens v. Dunn, (Tenn.) 2 S. W. Rep. 29; of contingent estates, see Banta v. Boyd, (I11.) 8 N. E. Rep. 671; Sager v. Galloway, (Pa.) 6 Atl. Rep. 209; Sager v. Cobham, (Pa.) 6 Atl. Rep. 212; Lafoy v. Campbell, (Ñ. J.) 6 Atl. Rep. 300; Willett v. Rutter, (Ky.) 18. W. Rep. 640.

See, also, McCartney v. Osburn, (Ill.) post, 210.

said income his or her personal expenses, such as for wearing apparel, traveling, etc.

"Item. Upon the death of my wife, I direct that my executors and trustees shall make an equal division of my whole estate not herein specifically otherwise disposed of, among and between my children then living, and the descendants of any deceased child who may have married, and died leaving issue, so that such descendants of any deceased child will receive the same share which their parent would have received if living.'

He appointed his wife, son, and daughter Susan executors and trustees under the will, and they entered upon the discharge of the trusts. The trustestate yielded an annual income of $21,000, and of this $7,000 was required to defray the expenses of maintaining the family home provided in the will, leaving a surplus of $14,000 to be annually divided between the widow and six children. The widow is still living. After the death of the testator one of the daughters married Edgar J. Shipman, and subsequently died, leaving an infant child, the appellant, and a will in which she gave all her property to her husband for life, and, after his death, to her children.

Mr. Shipman claimed that, after the death of his wife, one-seventh of the surplus income was payable to him under her will; and it was claimed, on behalf of the appellant, that the one-seventh was payable to him. The trustees claimed that such income was payable to the widow and six children as a class, and that, upon the death of Mrs. Shipman, it became payable to the six survivors, and that the corpus of the estate vested in the trustees during the life of the widow, and did not vest in the children until after her death; and so it was held in the court below. Mr. Shipman did not appeal to this court. William C. Beecher, for appellants. Charles M. De Costa, for respondents. EARL, J. We agree with the court below, and with the contention of the respondents, that the corpus of the residuary estate did not, during the life of the widow, vest in the testator's children, and for this conclusion the cases of Warner v. Durant, 76 N. Y. 133; Smith v. Edwards, 88 N. Y. 92; and Shipman v. Rollins, 98 N. Y. 311, are ample authority. The whole income is not given to the children during the life of the widow, and during her life the estate is vested in the trustees. There is no direct gift to the children, but simply a direction for a division among them after the death of the widow. In Warner v. Durant, FOLGER, J., said: "Where there is no gift, but a direction to executors or trustees to pay, or to divide and to pay, at a future time, the vesting will not take place until that time arrives." In Smith v. Edwards, FINCH, J., said that "it has been often held that, if futurity is annexed to the substance of the gift, the vesting is suspended;" and that, "when the only gift is in the direction to pay or distribute at a future time, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is the essence of the gift."

These general rules must control the construction of this will, as there is nothing in its context or general language which renders them inapplicable. This construction, too, is in harmony with the presumed intention of the testator. He vested the whole estate in the trustees during the life of his widow, and during that time evidently intended that it should remain there, and not be subject to the disposal of his children, or liable to be seized by their creditors; and, after the death of his widow, he gave it, not to the children living at his death, but to the children, and descendants of children deceased, living at her death. It is clear that the testator intended that his wife and children should take the surplus income, not as a class, not as joint tenants, but distributively as tenants in common. Such is the plain language of the will. The trustees were to divide the surplus "equally between" his wife and six children, so as to give each "an equal share," and "each one" was "to defray,

out of his or her share," his or her personal expenses. Such language is always held to constitute the beneficiaries tenants in common, and to show that they take distributively, unless there is something in other provisions of the will to show that the testator intended that they should take as a class; and so it was held in Hoppock v. Tucker, 59 N. Y. 202.

Here there is nothing in the will to control, modify, or limit the plain meaning of this language. The testator's wife was not old, and it appears that he contemplated that one or more of his children might, during her life, marry, die, and leave descendants. He made no provision for the support of such descendants in the family home, and it cannot be supposed that he intended they should, during the life of his widow, be left without any means of support. He put such descendants in the place of their deceased parents after the death of his widow, and it is fair to infer that he expected that they would in some way take the place of their parents during her life. A construction giving such effect to the will, will certainly come nearest to the presumed intention of the testator. Therefore, when Mrs. Shipman died, the one-seventh of the income, which was payable to her during her life, did not pass to the surviving six, but was undisposed of by the terms of the will, and was devolved upon the appellant, under the Revised Statutes, (1 Rev. St. 721, 40,) which provides as follows: "When, in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation, or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate." This case precisely fits that section. There is a valid limitation of an expectant estate to the appellant. During the life-time of the widow there is a suspension, by a valid trust, of the power of alienation, and since the death of Mrs. Shipman the income is undisposed of by the will, and the appellant is the person presumptively entitled to the next eventual estate, and therefore entitled to the income otherwise undisposed of.

The judgments of the general and special terms should therefore be reversed, and judgment entered in accordance with this opinion; the costs of all parties in the supreme court and in this court to be paid by the trustees out of the surplus income of the trust-estate.

(All concur.)

(118 Ill. 625)

FIRST NAT. BANK OF MONMOUTH v. DUNBAR, Adm'r.

(Supreme Court of Illinois. November 13, 1886.)

BANKS AND BANKING-CASHIER-AGENCY-LIABILITY OF BANK.

Where a cashier of a bank, acting as a special agent for a third party, purchases bonds for him, and then, as agent of the bank, receives them as a special deposit, and afterwards, to conceal certain embezzlements of his own, he, without the knowledge of the depositor, transfers these bonds from the special deposit, and enters them as part of the assets of the bank, his agency for the depositor ceases with the purchase. Throughout the remainder of the transaction he is the agent of the bank, and his knowledge of the depositor's rights is notice to the bank. The bank does not become a purchaser for value without notice.

Error to appellate court, First district.

Action for negligence and for conversion of bonds. Judgment for plaintiff below. Defendant brings error.

Grier & Dryden and Kirkpatrick & Alexander, for plaintiff in error. Mathews & Peacock and McKenzie & Calkins, for defendant in error.

SCHOLFIELD, J. We have had some difficulty in ascertaining the precise questions intended to be presented upon this record to this court, since there has been no oral argument of the case, and counsel have simply refiled here

their printed arguments used in the appellate court, in which questions of law and fact are, to some extent, intermingled. We have, however, carefully gone over the entire record, and considered all of the questions except those of fact discussed in the appellate court, and we are unable to perceive any reason justifying a reversal of the judgment of that court.

The declaration contains three counts,-two in case for negligence, and the third for trover and conversion.

The facts which the evidence tends to establish, and which the judgment of the appellate court requires us to assume are established, are, briefly, that on the seventeenth of March, 1882, Solomon Byers employed B. T. O. Hubbard, defendant's cashier, to purchase for him four Roseville township railroad aid bonds of $1,000 each; Hubbard purchased the bonds, and paid for them from the proceeds of a check drawn by Byers on the defendant; that, on the same day, Byers made a special deposit of these bonds with the defendant; that Hubbard, having embezzled funds from the defendant while acting as cashier, subsequently, and while still acting as defendant's cashier, without the knowledge or consent of Byers, in order to conceal, in part, the fact or extent of his embezzlement, took these bonds from their place of special deposit in the bank, and put them with the assets, including other like bonds of the defendant, and thereafter reported them to the defendant as so much of its assets; that the defendant afterwards became insolvent, and its assets, and also these bonds, were taken charge of by a bank examiner on the eighth of April, 1884; and that the defendant has since been demanded by Byers to deliver the bonds to him, and has refused.

The appellate court, in its opinion filed on affirming the judgment of the circuit court, held

"(1) That the circuit court did not err in holding that the evidence sustained the verdict.

"(2) That the circuit court did not err in holding that, in order to sustain the action, a demand should have been made for the delivery of the bonds before the bank examiner took possession of them; that if the special deposit was wrongfully transferred by the bank or its cashier, and put with the funds of the bank, and reported and treated by the bank as a part of its assets, then this was a conversion, and no demand and refusal was necessary to sustain trover; but that, if the bonds should be regarded as still a special deposit notwithstanding such transfer, yet the bank, although it had failed, and its property was in the hands of the federal authorities, had the right, and it was its duty, under section 5228 of the Revised Statutes of the United States, to deliver special deposits.

"(3) The court did not err in overruling the objections to the questions put by plaintiff to the witness B. T. O. Hubbard on his direct examination; that the objections were general, and it does not appear that they were placed upon the ground that the questions were leading, and, in any view, that the trial court, in the examination of witnesses, has a large discretion as to the form of the questions to be put, which, in this instance, does not appear to have been abused.

"(4) Objections to questions propounded to Guy Stopp were properly sustained, because the answers called for were with reference to matters that were res inter alios acta, and would have been but secondary evidence.

"(5) The directors of the bank were all stockholders in the bank, and therefore parties in interest in the suit. The plaintiff on the trial was suing as administrator. Although Hubbard in purchasing the bonds was agent for Byers, yet, when they were deposited in the bank, and when he took them from the special deposit, and placed them with the assets of the bank, he was acting as the cashier, and therefore the agent, of the bank. It is not proposed to prove by the directors any transaction or conversation with Hubbard while acting as the agent of Byers in making the purchase, or any transac