not in point upon the questions now before 18. NEGLIGENCE 141(11) - INSTRUCTION ON us, for whatever was said there by the court IMPUTED NEGLIGENCE. about consideration must be limited to the An instruction that, if deceased was on the scope of the demurrer and the parties affect-back seat of the automobile in question, and ed by the demurrer. There is no error. The other Judges concurred. (93 Conn. 438) WEIDLICH v. NEW YORK, N. H. & H. R. CO. had no control over its operation, then he is in no wise chargeable with any failure of the driver to use reasonable care was proper. Appeal from Superior Court, Fairfield County; John P. Kellogg, Judge. Action by Frank Weidlich as administrator of the estate of Ernest C. Weidlich, deceased, against the New York, New Haven & Hartford Railroad Company, for damages for personal injuries resulting in the death of (Supreme Court of Errors of Connecticut. April plaintiff's intestate. From denial of motion 16, 1919.) to set aside a verdict for plaintiff for $10,000, and for error in the charge and in the find 1. NEGLIGENCE ~93(1)—INJURY TO GUEST IN ing, defendant appeals. No error. AUTOMOBILE · IMPUTED NEGLIGENCE OF The plaintiff's intestate, Ernest C. Weidlich, was riding as a guest on the rear seat of a closed automobile, owned, controlled, and driven by his brother, who was seated on the front seat, when the engine of defendant railroad, at about 6:50 p. m., on January 23, 1918, hit the automobile at the grade crossing at North avenue, Bridgeport, and as a consequence of the collision Mr. Weidlich suffered injuries from which he died. North avenue runs substantially northeast and southwest, and defendant's single track railroad runs north and south over North Double avenue, making a grade crossing. trolley car tracks were on North avenue over which cars were operated over this grade crossing. For a warning and a protection to travelers on this highway the railroad had for many years maintained at this crossing gates and a gate tender to operate them by hand. There were four arms of this gate, 4. DEATH 1 PRESUMPTION OF CONTINU-two on each side of the railroad. The southANCE OF LIFE-GUEST IN AUTOMOBILE. The jury was warranted in presuming that a guest in an automobile continued alive from the time he was seen alive shortly before a railroad crossing accident until the accident occur 5. RAILROADS 350(21) CROSSING ACCIDENTS-CARE OF GUEST IN AUTOMOBILEQUESTIONS Ffor Jury. east gate had been out of order for some time. In addition there was evidence from which the jury might have found these facts: The train was late, and the gate tender came on the job just before the accident, and did not know the train was late. Just before the collision a trolley car coming from the northeast stopped on the easterEvidence held sufficient to go to the jury only side of the crossing, and the conductor due care of plaintiff's decedent, a guest in an automobile struck at a railroad crossing. went ahead upon the railroad track, signaled to the motorman to cross, and the motorman 6. NEGLIGENCE 134(2) - INFERENCES FROM thereupon drove his car across. EVIDENCE. The existence of due care in any case may be inferred from the facts and circumstances in evidence. 7. EVIDENCE 67(1)—PRESUMPTION OF CON TINUANCE OF CONDITION. The gate tender heard the second whistle of the engineer when the engine was about 800 feet from the crossing, and he left his shanty alongside the track, signaled to the trolley car to pass from the east to the west, and did not lower the gates. The trolley car passed over the track, and following it came an automobile. It having been shown that plaintiff's decedent was occupying the back seat of an automobile shortly before a railroad crossing accident, The gate tender could have seen the apthe presumption that he so continued would fol-proaching engine when he went upon this low in absence of evidence to the contrary. crossing. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The occupants of the Weidlich automobile (proaching this crossing, nothing to indicate up to a point about 110 feet from the cross-whether he was then dead or alive, asleep or ing could not have seen the approaching awake. train. And at 110 feet the trolley car and the automobile would have completely obstructed the view, and this obstruction would have continued up to a point 20 feet from the crossing. When the Weidlich automobile was within 20 feet of the crossing it was traveling at the rate of 15 miles an hour, while the train was traveling at the rate of 25 miles an hour, and was about 100 feet from this crossing. James W. Carpenter and Paul Somers, both of New Haven, for appellant. William H. Comley, Jr., of Bridgeport, for appellee. The intestate was seen a few moments before the accident, and a short distance from the crossing, seated on the rear seat of the closed automobile. If he had been asleep, or reading a book, or engrossed in talk with another than the driver, or in deep though, he would not have been, because of this, negligent. Ordinary experience instances this as not infrequently the conduct of the ordinarily prudent person when riding as a guest or the rear seat of an automobile. No duty was upon the intestate to explain, excuse, or justify his course. [4] There is no presumption, the defendants say, that this intestate continued in life from WHEELER, J. (after stating the facts as the time he was seen alive just before the acabove). The corrections of the finding made cident to the time of the collision. If it may the subject of the appeal are without merit. be assumed as a self-evident result of human Paragraph 15 of the statement of facts, reason and experience that because this inclaimed in evidence by plaintiff, may be sup-testate was alive shortly before the collision ported upon the gate tender's statement of the jury might have found that he was alive what he saw and heard and did. Paragraph 23, as to the view of the approaching train, is supported by inferences which may reasonably be drawn from the testimony of the engineer, Burns. Paragraph 6, as to the freedom from negligence of the plaintiff's intestate, was a conclusion which the trier might reasonably have made from all the facts and circumstances in the case. at the time of the collision, no further proof of this fact is required. This presumption of fact will then supply the place of evidence in setting up something which must be overcome by proof. Ward v. Metropolitan Life Ins. Co., 66 Conn. 227, 239, 33 Atl. 902, 50 Am. St. Rep. 80; Sturdevant's Appeal from Probate, 71 Conn. 392, 400, 42 Atl. 70. Life will be presumed to continue for such period of time as will be reasonable under The corrections asked did not justify the the circumstances, depending upon the length printing of the evidence. The motion to set aside the verdict could not prevail if the finding of the intestate's due care stands. The failure of the gate tender to lower the gates or to give adequate warning of the approach of the train amply justified a finding of negligence on the part of the gate tender. [1] The intestate was a guest in the automobile; he had no control over the driver, and no authority to direct him. He was not responsible for the negligence of the driver of the automobile, had there been such. Sampson v. Wilson, 89 Conn. 707, 96 Atl. 163. [2] The intestate must exercise due care, but this is the care that may be reasonably inferred from the circumstances. The guest on the rear seat of the automobile owes a very limited degree of care. He is not expected to direct the driver, nor to keep a lookout. Dangers or threatened dangers known to him he must warn the driver of, and for his failure to do so be chargeable with having proximately contributed to the accident, unless a reasonable person under all the circumstances would not have given the warning. [3] The defendant argues at length that the plaintiff offered no proof to show that his of time intervening, the age, physical condition, and all the surrounding circumstances. Chamberlayne on Evidence, § 1034. In each case it is a presumption of fact subject to be controlled by whatever facts and circumstances may be in evidence. Hyde Park v. Canton, 130 Mass. 505, 509; Chamberlayne on Evidence, vol. 4, § 1042. "If the lapse of time was comparatively short, it would, in ordinary cases, in the absence of any evidence to the contrary, be usually deemed satisfactory." State v. Plym, 43 Minn. 382, 388, 45 N. W. 848; Chicago, etc., R. Co. v. Keegan, 185 Ill. 70, 56 N. E. 1088. Since the lapse of time when Mr. Weidlich was last seen alive and the collision was so short, the jury were warranted, in the absence of other facts and circumstances to the contrary, in presuming that the life of the intestate continued to the time of the collision, and this presumption supplied the place of evidence. [5] There was evidence to go the jury on the due care of the intestate. It arose out of the circumstances of the case and the necessary inference arising from these. "The nature of the accident makes it improbable, according to common ex side was a contributing cause." Livermore v. Fitchburg R. Co., 163 Mass. 132, 39 N. E. 789. The charge is complained of in three par ticulars: [6] (1) "That the existence of due care in any case may be inferred from the facts and circumstances in evidence." This and the entire charge upon this subject accords with the frequent expression of our court. The real criticism is in the court having submitted to the jury the issue of due care, and we have already disposed of this as groundless. This criticism is based upon the requests to charge, and not upon the charge as made, which is the basis of the errors specifically pressed in the brief of appellant. "The plaintiff claims to have proved that the deceased was on the back seat of the automobile; that he was not driving, and had no control this to be the fact, then he is in no wise chargeover the operation of the car. If the jury finds able with any failure of the driver of the automobile to use reasonable care. But before the plaintiff can recover in this action you must be satisfied that the decased has omitted nothing in looking or listening for himself that a careful and prudent man should do under similar circumstances." [7] (a) Proof having been offered that the intestate was on the back seat at a time shortly before the accident, the presumption that he so continued would follow in the absence of evidence to the contrary, just as the tion as we understand the record, the plainpresumption of life continued. But in additiff offered evidence from which the jury might have found this as a fact from the location of the body of the intestate after the accident, and from the fact that the front seats were occupied before the accident by the driver and by a dog. The defendant complains of this charge because there is no evidence that: (a) The intestate was seated on the rear seat; (b) that he lived up to the standard of the con(2) That the one question presented by the duct of the reasonable man; and (c) that the plaintiff was that the gates "were not main-charge did not explain clearly the meaning tained and operated with ordinary care and of "imputed negligence." prudence at this time." Both the question of maintenance and operation the appellant claims were submitted to the jury, although only that of operation was raised in the pleadings, and that this must have been harmful, since it was in evidence that the southeast gate was not in working condition. The trial court in its charge interpreted the complaint to limit the negligence charged to the operation, and not to the maintenance of the gates, and expressly excluded from the consideration of the jury any negligence other than that complained of, and especially that arising out of the condition of the gates. A reading of the charge fully satisfies us that the jury could not have failed to understand this as the single ground of negligence charged in connection with the gates. We think it entirely clear that the court used the terms "maintained and operated" in this portion of the charge complained of in the sense of operated and without reference to the physical condition of the gates. (3) Error is predicated of the charge: (b) We have already said all that we deem necessary to indicate that the question of due care was properly left to the jury. [8] (c) The subject of imputed negligence was presented to the jury in the manner approved of by our decisions, and with clearness and sufficient completeness. Sampson v. Wilson, 89 Conn. 707, 96 Atl. 163. There is no error. The other judges concurred. (93 Conn. 402) DE LADSON v. CRAWFORD. CARTWRIGHT et al. v. SAME. (Supreme Court of Errors of Connecticut. April 16, 1919.) the corpus of an estate by a beneficiary who is meanwhile paid the income and who is under no incapacity such as minority or mental incompetency. 8. TRUSTS 136-"DRY TRUSTS" - PAYING INCOME ΤΟ BENEFICIARY VESTED WITH RIGHT TO Corpus. 1. COURTS 2004 - JURISDICTION OF PROA trust by which the trustee is to retain BATE COURTS-TRUSTS. the corpus of an estate for ten years and pay The jurisdiction of probate courts over tes-ceive the corpus of the estate, is not a "dry" or the income to a beneficiary, who is then to retamentary trusts is very limited, exclusively simple trust terminable at the call of the benstatutory, and largely of recent origin. 2. TRUSTS 298-AccOUNTING OF TRUSTEEJURISDICTION OF PROBATE COURTS. The express authority to settle accounts of testamentary trustees and to make orders necessary and proper for the due execution of such trusts, conferred by Laws 1881, c. 36, Laws 1911, c. 125, Gen. St. 1918, § 5045, carries with it implied power to do what is necessary to the exercise of the jurisdiction expressly conferred. 3. COURTS 2004-CONSTRUCTION OF TESTAMENTARY TRUSTS JURISDICTION OF PROBATE COURTS. A probate court may construe a testamentary trust so far as is necessary to enforce the execution of it, but it may not construe a trust to ascertain whether it is void or whether it should be terminated, for it has no express power to declare testamentary trusts void or to terminate them. 4. PERPETUITIES 6(12)-PUBLIC POLICYTRUST RESTRAINING DISPOSITION OF PROPERTY BY OWNER. The rule that it is against public policy to restrain one in the disposition of property in which none but himself has an interest has no application to, and does not avoid, bequest of property in trust to pay the income to named persons for ten years, when they are to take the corpus, as such provisions do not restrain alienation of the corpus. 5. PERPETUITIES 6(12)—PUBLIC POLICY TRUST RESTRAINING USE OF PROPERTY BY OWNER. The rule that it is against public policy to restrain one in the use of property in which he alone is interested must be limited to attempted imposition of an illegal or unreasonable restraint on the use of property. 6. PERPETUITIES 6(12) CONDITIONS OR RESTRAINTS ON OWNER-MOTIVE OF TESTA TOR. The validity of conditions which a testator places on the use of property cannot depend on a motive which might be attributed to him, but on the inherent reasonableness of the conditions from a legal standpoint, and postponing enjoyment of the principal for ten years by the owner to whom a trustee is meanwhile to pay the income is not unreasonable. 7. PERPETUITIES ~6(12)-RESTRAINT OF USE -LEGALITY. There is no illegality or legal inconsistency in a testator postponing the use or possession of eficiary. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Dry Trust.] Case Reserved from Superior Court, New Haven County; Howard J. Curtis, Judge. In the matter of the accounting of George W. Crawford, trustee of two separate trusts created by the will of Ella De Ladson. From orders of the probate court approving two separate accounts, Mary F. Cartwright and Edward S. De Ladson appeal. Reserved for ' advice of Supreme Court on agreed statement of facts. Superior court advised to affirm decrees. These are two appeals from decrees of probate dated November 20, 1918, approving and allowing two separate accounts presented by George W. Crawford as trustee of two separate trusts created by the will of Ella De Ladson of New Haven, who died in 1916. The two appeals were tried together in the superior court and argued together in this court and present identical questions of law. The clauses of the will creating these trusts are as follows: "11. I give, devise and bequeath to William F. Alcorn, of New Haven, Connecticut, $1,500 to hold the same in trust, however, for the term of ten years from the date of my death and to pay the income thereof to my niece Mary Scott, also known as Mary Cartwright, now or formerly of 143 W. 132d street, New York City, and at the expiration of said ten years to pay over to said Mary Scott, also known as Mary Cartwright, the said sum of $1,500." "15. All the rest and residue of my estate, both real and personal of whatever nature and description and wheresoever located, including all mortgages owned by me, I give, devise and bequeath to William F. Alcorn, of New Haven, Connecticut, to hold the same in trust, however, for a period of ten years, and to pay the income thereof to my husband, Edward S. De Ladson, and at the expiration of said period of ten years to turn over to my said husband all said rest and residue of my estate then remaining in said trustee's hands." On June 24, 1918, Mr. Alcorn was removed as trustee on account of his absence in the military service of the United States in France, and the present trustee was appoint ed and qualified in his place. The estate was [or whether it should be terminated, for it settled, and on November 15, 1918, the trustee has no express power to declare testamentary presented his first accounts under the trusts trusts void or to terminate them. Possibly a in question showing in each case that he trust may be so hopelessly illegal or uninhad on hand the principal of the trust fund, telligible as to be incapable of enforcement; intact save for the premium upon the trus- but if any reasonable basis of fact or law tee's bond. Each of these appeals rests on exists for a claim, made in good faith, that the same ground; that the decree allowing the trust is valid, the duty of the probate and approving the trustee's account is er- court is to exercise its limited statutory auroneous because the appellant is by the terms thority of enforcing the execution of the of the will the sole and absolute owner of the trust, and leave the contestant to pursue his fund, because the trust attempted to be creat- remedy in a court of chancery. Chambered is a dry or naked trust, because the at-lin's Appeal, supra, 70 Conn. p. 379, 39 Atl. tempted trust constitutes an illegal and invalid restriction upon the appellant's power of alienation of his property, and because appellant is entitled to an order directing the trustee to turn over all the principal and interest of the trust funds, less necessary expenses, to the appellant. Charles E. Clark, of New Haven, for appellants. George W. Crawford, of New Haven, pro se. run. 734, 41 L. R. A. 204. In this case neither the probate court, nor the superior court as a probate court of appeal had jurisdiction to disallow these accounts on the ground that the trusts were invalid; and for that reason alone we should be compelled to advise the superior court to affirm the decrees of probate. In the interest of the parties and to avoid further litigation on the subject, we also discuss the questions argued before us. The rule BEACH, J. (after stating the facts as relied on by appellants is stated in Gray on above). [1-3] Although in form appeals from Perpetuities (3d Ed.) par. 120. In substance, decrees allowing the accounts of the trustee, it is that, when a person is entitled absothese appeals are in substance applications lutely to property, a provision postponing its to have the trusts terminated, and the first transfer or payment to him is void. That, if question which suggests itself is whether the there is a gift over in case the cestui que probate court, or the superior court sitting as trust dies before the trust terminates, the a probate court of appeals, has jurisdiction trustee retains the property for the possible to terminate testamentary trusts which by benefit of the substitutionary donee, but to the terms of the will have still ten years to postpone an absolute gift to A. by interposThe jurisdiction of probate courts over ing a trust to pay the income to A. for a term testamentary trusts is very limited, exclu- of years, is void "in pursuance of the general sively statutory, and largely of recent orig- doctrine that it is against public policy to in. The history of the statutes on this sub-restrain a man in the use or disposition of ject down to 1877 may be found in Prindle v. property in which no one but himself has any Holcomb, 45 Conn. 111, 121. Since then, by interest." chapter 36, 1881, probate courts were given power to call testamentary trustees to account and to make orders necessary and proper to secure the due enforcement of such trusts. This authority apparently included final as well as intermediate accounts, for it makes no distinction between them. None the less the revised probate law of 1885 mentions only annual accounts, and for that reason the jurisdiction remained limited to the settlement of annual accounts of testamentary trustees until it was extended by chapter 125 of 1911, now 5045, G. S. 1918, to final accounts also. The express authority to settle accounts of testamentary trustees and to make orders necessary and proper for the due execution of such trusts carries with it implied power to do what is necessary to the exercise of the jurisdiction expressly conferred. Chamberlin's Appeal, 70 Conn. 363, 378, 39 Atl. 734, 41 L. R. A. 204. Beyond that the probate jurisdiction over testamentary trusts does not go. A probate court may construe such a trust so far as is necessary to enforce the execution of it, but it may not construe a trust to ascertain whether it is void It is not easy to find a satisfactory legal basis for this rule in the form in which Prof. Gray states it. Lord Eldon's statement of the rule in Brandon v. Robinson, 18 Ves. 433, that, "if property is given to a man for life, the donor cannot take away the incidents of a life estate," is self-explanatory; although the rule is not without exceptions in this state. Clark v. Baker, 91 Conn. 663, and cases cited on page 666, 101 Atl. 9. Most of the English cases to which we have been referred, including Gosling v. Gosling, Johns. 265, which was especially relied on, exemplify the simpler rule that a testator having once made an absolute gift cannot attach to it repugnant conditions subsequent. When, however, the enjoyment of the principal is given upon the condition precedent of an interposed temporary trust for the payment of income only, the assumption that the donee may disregard the condition and demand an immediate transfer of the legal title requires explanation. The English cases do not supply any satisfactory explanation. The present English rule that a cestui que trust may put an end to |