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F. Dohmen Co. (Limited) vs. Manufacturers' & Builders' Fire Ins. Co.

Obviously, all causes of action on the contract must fall with the policy upon the happening of the contingency which avoids it.

The trial court was requested to submit to the jury a question requiring a special finding in respect to the amount of property totally destroyed. That was the principal controverted fact in the case. The defendant had an absolute right to have a special finding on each material question. Davis v. Farmington, 42 Wis. 425. True, the trial court had a large discretion in respect to the questions to be submitted (Knowlton v. Milwaukee City R. Co. 59 Wis. 278), but such discretion did not go to the extent of warranting a refusal to submit a proper question covering a material controverted fact. Such refusal could only be justified upon the ground that the subject was covered by other questions submitted. Such is not the case here. The refusal to submit the question requested was error.

There are several other errors assigned, but a consideration of them does not appear to be necessary. All necessary to the decision on this appeal or for guidance on a future trial have been considered and decided.

By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.

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F. DOHMEN COMPANY (LIMITED), Respondent, vs. MANUFACT

URERS' & BUILDERS' FIRE INSURANCE COMPANY, Appel-
lant.

March 19 - April 30, 1897.

F. Dohmen Co. v. Niagara F. Ins. Co., ante, p. 38, followed.

APPEAL from a judgment of the superior court of Milwaukee county: R. N. Austin, Judge. Reversed.

This is an action to recover on a policy of fire insurance

F. Dohmen Co. (Limited) vs. Manufacturers'& Builders' Fire Ins. Co.

covering the same property mentioned in the case of F. Dohmen Co. v. Niagara Fire Ins. Co., ante, p. 38. The action is on one of the policies mentioned in such previous case. It was issued October 22, 1892, insuring such property for the term of one year to the amount of $1,250. The complaint alleged all the facts necessary to a recovery.• The answer put in issue the amount of the loss, and the issue thus raised was the only one litigated on the trial. There was a motion for a change of venue to the circuit court made and denied. The objection to the granting of such motion was thereafter withdrawn by stipulation, and an order entered changing the place of trial. Defendant failed to pay the clerk's fees and have the papers transmitted within the time prescribed by statute. The clerk refused to transmit the papers after the expiration of such time, and thereupon defendant moved the court for an order for such transmission, which motion was denied, and defendant excepted thereto. At the close of the plaintiff's case, defendant's counsel moved the court for a nonsuit, which was overruled. No evidence was offered by defendant. On motion of plaintiff's counsel, the court directed a verdict in plaintiff's favor for $1,101.89, the full amount claimed. There was a motion to set the verdict aside as against the evidence and for errors committed on the trial, which was overruled and excepted to. Judgment was entered in plaintiff's favor upon the verdict, and defendant appealed.

For the appellant there was a brief hy Miller, Noyes, Miller & Wahl, attorneys, and J.V. Quarles, of counsel, and oral argument by Geo. P. Miller and Mr. Quarles.

For the respondent there was a brief by Timlin & Glicksman, and oral argument by Nathan Glicksman.

MARSHALL, J. The only questions presented on this appeal relate to proceedings for a change of venue and to the exceptions taken to the admission of evidence of the con

Tyson vs. Tyson and another.

tents of plaintiff's books, without any foundation being laid therefor. The same questions were raised and determined in F. Dohmen Co. v. Niagara Fire Ins. Co., ante, p. 38. The decision in that case rules this, and requires a reversal of the judgment appealed from.

By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.

Tyson, Respondent, vs. Tyson and another, imp., Appellants.

96 59 103 400

March 20 - April 30, 1897.

Deeds: Passive trust: Perpetuities: Contingent remainder: Alternative

estates.

96 59 108 630 96 59 8110 576

96 59 112 1518

1. A deed purporting to convey to trustees the legal title to land, to

hold such title and thereafter to make conveyances thereof upon
various contingencies specified, created a passive or dry trust, and
not an express trust as defined and authorized by sec. 2081, S. & B.
Ann. Stats.; and hence, under secs. 2073, 2075, such deed will be

treated as if the grants were in direct terms to the beneficiaries. 2. A deed reserving a life estate in the grantor, and granting a life

estate thereafter to his daughter then living, with contingent re-
mainder to the heirs of her body yet to be born (or such of them
as she should appoint by will), did not suspend the absolute power
of alienation for a longer period than during the continuance of
two lives in being at the creation of the estate, within the mean-
ing of sec. 2039, R. S., since the estate of the heirs of the body of
the daughter must vest in possession, if at all, at the close of her

life.
8. A further provision of the deed, attempting to grant estates to take

effect in the event of the failure of issue in the daughter, did not,
even if void, affect the validity of the contingent remainder to her
children.

APPEAL from a judgment of the circuit court for Milwaukee county: D. H. Johnson, Circuit Judge. Reversed.

The case is thus fairly stated in the appellants' brief:
This is an action to remove a cloud upon the title of certain

Tyson vs. Tyson and another.

real estate, by annulling a trust deed and a will, in certain particulars, and having them declared void as being in violation of the statutes against unlawful suspension of the power of alienation.

Prior to the 19th day of November, 1874, Robert H. Cabell, of Baltimore, Md., owned fifteen lots in the city of Milwaukee. On said 19th day of November said R. H. Cabell and Catharine, his wife, made and executed a trust deed of said lands to I. A. Lapham and George G. Houghton, both of the city of Milwaukee, reciting that they (the Cabells) bad an only child, Virginia Catharine Cabell, then in her fourteenth year, and were anxious to convey said lands by absolute title, free from claim of dower, to trustees, for the uses and purposes therein set out, and conveying the same to said Lapham and Houghton, trustees, their successors or assigns, upon the trust and purpose: (1) That they should hold the same for the use of grantor R. H. Cabell during his life, and permit him to use, occupy, and enjoy the same, to take, receive, and enjoy the rents, issues, and profits thereof during his life, with power to lease the same and give acquittances for the rents thereof without the same passing through the trustees; the said R. H. Cabell reserving to himself a life estate in said lands, and the rents, issues, and profits thereof, as fully as if said deed had never been made. (2) That trustees should hold said lands at the death of said Cabell to and for the sole use and benefit of his said only child, Virginia Catharine, if she should survive him, during her life, to be freed and discharged from, and in no manner to be subject to, the debts, contracts, control, or marital rights of any husband she might take, but as her sole, separate, and exclusive estate during her life, and trustees should permit her to use, occupy, and enjoy the same, to take the rents, issues, and profits thereof as her sole, separate, and exclusive estate, with power in her (or in her guardian during minority or until marriage) to lease the same and give acquittances for rents, without the same passing through said trustees, during her life.

Tyson vs. Tyson and another.

Herein said Virginia Catharine was granted power and authority, after reaching twenty-one years of age, and while she should be married or a widow, to devise, appoint, and distribute said lands, or any part thereof, in fee simple, by her last will, in such manner or proportions as she might think proper, between her children, if any, living at her death, and the lawful issue of any children of hers who might die in her lifetime leaving such issue; and she might allot the whole of said lands to any one or more such persons to the exclusion of the others, with which power and right of selection she was expressly invested and intrusted, and the execution whereof was to depend upon her own free will and option; and in the event that she should die, leaving a will in the execution of such power, the trustees should surrender and convey said lands, or such part thereof as she should so appoint, to such of her children living at her death, or the lawful issue of any child of hers that might have died in her lifetime leaving such issue, as she might by her will have selected or appointed, and in such manner or proportions as she might thereby direct or appoint.

But (3) if Virginia Catharine should die without leaving a will in the execution of said power, the trustees should convey said lands in fee simple equally to the children of said Virginia Catharine living at her death, and the issues of any child of hers that may have died in her lifetime leaving issue, such issue taking according to tlie right of representation.

If (4) Virginia Catharine should die without leaving any child living at her death, or the issue of any child of hers that might have died in irer lifetime, trustees should hold the said lands for the use of Catharine Cabell, her mother, during her life, and at the death of Catharine convey the same in fee simple to such persons as should then be the heirs at law of said R. H. Cabell according to the laws of the state of Wisconsin.

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