fore for the jury. The evident of Hermany v. Association, supra, so far as purpose of this legislation was to strike affects this case. down, in this class of cases, literal warranties, so far as they may be resorted to for the * * purpose of enforcing actually immaterial matters. It provides a rule of construction for the purpose of preventing injustice, and it is as much the duty of courts to enforce such rules as it is to administer the statute of frauds and perjuries." Cases of this character, involving the application and construction of the said statute, have several times been before the federal Circuit Court of Appeals, in different circuits. In the case of Penn Mut. Life Ins. Co. v. Mechanics' Savings Bank and Trustee, 72 Fed. 413, 418, 19 C. C. A. 286, 292 (38 L. R. A. 33), Judge Taft, delivering the opinion of the Circuit Court of Appeals, in the Sixth Circuit, said of the said statute: "A reasonable construction of the Pennsylvania statute will not permit the mere fact of warranty in form to render every statement of fact material to the risk. Its manifest purpose was to leave open to judicial investigation in the ordinary way the question whether the fact concerning which inquiry was made, In the case of Fidelity Mutual Life Asso- and an untrue answer given, was material ciation of Philadelphia, Pa., v. Miller et al., to the risk. If it is in this manner found in the Fourth Circuit, 92 Fed. 63, 34 C. C. to be material, then the plain implication A. 211, the court said: "The Supreme Courts of the statute is that the usual penalty for of the states of Maryland and Pennsylvania breach of insurance condition and warranty have each passed upon the effect of these shall follow, and the policy be avoided, statutes, and held that the misrepresenta- whether the answer be made in good faith tions or untrue statement contained in an or not. If, however, the question untruly application for insurance, and which is answered relates to something not found to sought to be made a ground of defense, must be material to the risk, and if the answer be of some material matter. * It is is in good faith, then the breach of warranty manifest that these statutes were passed to works no prejudice to the insured or his repprevent the defeat of the ends of justice by resentatives. If, though the question unmere technicality. They are remedial in truly answered relates to something not dicharacter, and should be given such liberal rectly material to the risk, the untrue anand reasonable interpretation as would in- swer is made in bad faith, that is, with a sure a judicial investigation, in the ordinary knowledge of its falsity, and for the purpose way, of whether the particular statement of misleading the company into the contract, alleged to be untrue or a misrepresentation the implication of the statute is that the rule was material to the risk. If the statement at common law shall prevail, and the policy is found to be material, the penalty of for- shall be avoided." feiture of the policy will follow, whether the answer be made in good faith or not. Should the question untruly answered relate to something found not to be material, and the answer be made in good faith, then the breach of warranty works no prejudice to the insured or his representatives. We agree with the learned judge [below] that the questions of materiality and good faith in the answers to questions propounded in the application for insurance are not always to be left to the consideration of the jury, but when such materiality is obvious, and the answers in the application are expressly made the basis of the contract, it is a matter for the court to pass upon. Otherwise, or when the materiality depends upon disputed facts, it should be determined by the jury. We have examined the two recent cases in the Supreme Court of Pennsylvania on this subject, to which our attention was called, of Lutz v. Insurance Co., 186 Pa. 527, 40 Atl. 1104, and March v. Insurance Co., 186 Pa. 629, 40 Atl. 1100, 65 Am. St. Rep. 887 (relied upon by counsel in the case now before this court), in which the act of the 23d of June, 1885 (P. L. 134), * was considered. #99 We do not see anything in either of these decisions which changes or materi We think this announcement not only reasonably construes the purpose and scope of the statute, but when examined in the light of the facts in the particular cases decided in Pennsylvania, it conforms to the construction given to the statute by the Supreme Court of that state. In the case of Smith v. Insurance Co., 183 Pa. 504, 38 Atl. 1038, which is similar on the facts to the case now before the court, the defendant refused to pay the insurance on two grounds: (1) It was alleged that the insured was not in sound health "upon the date of the policy"; and (2) that his answers to certain questions contained in his application for insurance were untrue. The Supreme Court on appeal held that the first ground on which payment was resisted is sufficient, if established by competent evidence, to bar a recovery, and so is the second ground, if the answers complained of, although made in good faith by the applicant, relate to some matter material to the risk; and in support of their ruling upon the second ground of defense made the following extract from the Hermany Case, supra: "Statements made by an applicant for life insurance, which are incorrect and untrue, will not avoid the policy, if they are immaterial to the risk, and are made in good faith, 40 Atl. 808; Life Ass'n v. Gillespie, 110 Pa. 84, 1 Atl. 340; McCaffrey v. Knights, etc., of Columbia, 213 Pa. 609, 63 Atl. 189; Meyers v. Woodmen, 193 Pa. 470, 44 Atl. 563; Barnes v. Insurance Co., 191 Pa. 618, 43 Atl. 341, 45 L. R. A. 264. In the Smith Case, supra, the evidence ap-131; Keatley v. Insurance Co., 187 Pa. 197, peared uncontradicted that the insured in his application denied the attendance of any physician except the one named prior to the date of the policy and for any disease except typhoid fever, and that he was attended by two other physicians before the date of the policy-by one for heart disease, and by the Those cited by counsel for the defendant other for a paralytic stroke. In the court are Dinan v. Association, 201 Pa. 363, 366, below, the jury were instructed, in substance, 50 Atl. 999; Wall v. Society, 179 Pa. 356, if they should find from the evidence that | 366, 36 Atl. 748; March v. Insurance Co., 186 the insured was attended for either of said Pa. 629, 40 Atl. 1100, 65 Am. St. Rep. 887; diseases, their verdict should be for the de- Lutz v. Insurance Co., 186 Pa. 527, 40 Atl. fendant. But if any physician, other than 1104; Baldi v. Insurance Co., 24 Pa. Super. the one named in the application attended Ct. (Pa.) 275, 290, 291; Murphy v. Insurance the insured under other circumstances, it Co., 205 Pa. 444, 452, 55 Atl. 19; Society v. was left to the jury to say whether it was a O'Hara, 120 Pa. 256, 266, 13 Atl. 932; Priestmaterial matter that was omitted in the an- ly v. Insurance Co. (C. C.) 112 Fed. 271. swer of the insured; that is, whether it re- In the case of Hews v. Eq. Life Assur. Solated to a matter material to the risk. And ciety of United States, in the Circuit Court the jury were instructed, if they should find of Appeals, Third Circuit, 143 Fed. 850, 74 from the evidence that the matter omitted C. C. A. 676, the court held that the intent was material to the risk, their verdict should with which a representation was made is be for the defendant; if not material then relevant to a question as to whether a fraud they should inquire whether the omission was committed in making it is unquestionwas made in good faith, and if made in good ably true, and it may be conceded that ordifaith, it would not vitiate the policy. In narily, in an action upon a policy, it is for passing upon the instruction of the court be- the jury to determine whether statements low to the jury, the Supreme Court said: material to risk and untrue in fact were "Whether there was bad faith or materiality made by the applicant with knowledge of in the omission to mention Drs. C. and T. their untruthfulness, and with the frauduin the answer to the seventh question was, in lent design of thereby inducing the issuance our opinion a matter to be determined by of the policy. the jury upon the evidence." And it was held that such omission, if the answer was made in good faith and related to an immaterial matter, did not impose upon the court the duty of declaring a forfeiture of the policy for the reason, as stated in the Hermany Case, supra, that questions of materiality and good faith are ordinarily questions of fact, and therefore for the jury. Whether, under the evidence, and the rule of good faith and materiality provided by the statute, the deceased was in good health at the time of making his application for membership in the fraternity, or whether his health was of such a character at that time as to prejudice the risk—that is, was such as to make it material to the risk—or whether he was attended by one or more physicians after the time mentioned in his application, and before making it, and if so whether the omission to state the fact as well as the disease or diseases for which and when he was attended, are clearly matters of fact for the jury under the statute as administered by the courts of Pennsylvania. And we do not deem it necessary to further burden this charge to the jury by a review of the many other cases cited, and especially those relied upon outside of that jurisdiction. The Pennsylvania cases cited by counsel for the plaintiff are Hermany v. Life Ass'n, 151 Pa. 17, 24 Atl. 1064; Smith v. Insurance Company, 183 Pa. 504, 38 Atl. 1038; Mc In your [5] You are the exclusive judges of the weight and credibility of the testimony of the witnesses. When, as in this case, the evidence is conflicting, you should reconcile it so far as it is possible; but, when you cannot do so, you should reject that which appears to be unworthy of credit and accept that which you deem reliable. examination of the testimony of the witnesses you should have regard to their demeanor upon the stand, their fairness, character and intelligence, their interest or bias, if any, as well as their opportunity for knowing the things of which they testified and all other facts before you which may aid you in reaching a proper conclusion as to the credit to which they are entitled. And your verdict should be for that party in whose favor is the preponderance or weight of the evidence. [6] As to the testimony of Dr. Corkran, we submit to you to find from the evidence whether the deceased was at the time of making his said application afflicted with piles. And the deceased having had piles some eight or nine years ago and a surgical operation having been performed therefor by the doctor, who testified the deceased was cured, you will also inquire from the evidence whether the deceased's health was seriously impaired in consequence thereof at the time of making his said application. If the deceased had piles at the time of mak fied to by Dr. Corkran seriously impaired If you should find from the evidence, unhis health and it was so impaired by reason thereof at the time of making the application, it was a matter material to the risk, and will prevent a recovery on the certificate of insurance. [7] If you find that the deceased had diabetes at the time of making his application, a recovery cannot be had on the certificate of insurance. der our instructions to you, that the plaintiff is not entitled to a recovery on the certificate of insurance, nevertheless the defendant having under a plea of payment and rule of court paid into court the sum of $190.36, an amount sufficient to cover the dues or premiums paid by the deceased to the defendant, together with the costs then accrued in the case, your verdict should be in favor of the plaintiff for such amount. In considering the testimony of Dr. Chipman, you should first determine under the [8] In conclusion, we say that if you are evidence whether he attended the applicant satisfied from the weight or preponderance before or after making his application. If of the evidence that the deceased, at the you find that he attended him in June, 1908, time he made his application for insurance, before the application was made, you should made false answers to the questions we have then determine from all the evidence wheth- mentioned, or to any of them, respecting er the deceased had at that time, and after-matters which were material to the risk, or wards, diabetes or any other serious ailment if he made answers to such questions as affecting his general health. If he had, his failure to disclose it in his application would defeat a recovery on the certificate of in surance. There is conflict in the testimony touching the character of the disease which the applicant had, if any, at the time of making his application. You have the testimony of Dr. Chipman and of the witnesses giving support to his testimony, including the testimony of physicians called as experts and of the several witnesses who were acquainted with the deceased. The testimony of Dr. Chipman is opposed by Dr. Foulk, who was the medical examiner for the defendant and who made an examination of the applicant at the time he made his application, also by other witnesses who were acquainted with the deceased and with his general health. You have all this testimony before you. We cannot charge you upon it, if we had any inclination to do so. It is for you to say under all the evidence produced before you whether the deceased was afflicted with diabetes from and after June, 1908, or was in bad health at the time of making his application for insurance, if so, a recovery cannot be had on the certificate of insurance. We also submit to you for your determination, from all the evidence, whether the deceased before and after June, 1908, and until the time of making his application for insurance, lost weight, passed large quantities of urine frequently, and manifested other symptoms of bladder, gravel or kidney disease. If you so find, and believe that the condition of the deceased at the time he made his application was such as materially affected the risk, a recovery cannot be had upon the certificate of insurance. So far as the testimony of Dr. Kelly is concerned, it should be considered by you in connection with all the other testimony in the case, in reaching your determination in respect to the deceased's condition of health at the time he made his application. we have mentioned falsely, willfully and in bad faith, for the purpose of deceiving the company, a recovery cannot be had for the insurance. But, on the other hand, if you believe that the answers were not falsely made, or that they were falsely made in good faith, and in respect to matters that were not material to the risk, your verdict should be in favor of the plaintiff for the amount of the certificate of insurance with interest from the 15th day of October, A. D. 1909. Verdict for plaintiff for $2,257. STATE v. WAHLE. (Supreme Court of New Jersey. Feb. 27, 1912.) INDICTMENT AND INFORMATION (§ 125*)—Du PLICITY. The purpose of Code Criminal Procedure Act (P. L. 1898, p. 894) § 74, providing that the indictment for keeping a disorderly house, where the offense consists wholly in the unlawful sale of liquor, shall be in form for the sale of liquor contrary to law, is to substitute for the common-law form of indictment for keeping a disorderly house, a statutory form, where the habitual violation consists in sales of liquor in violation of law, and such violations may be by agents under the authority of accused, and an indictment charging accused with habitually selling intoxicating liquor and causing and knowingly permitting such liquor to be sold is not duplicitous. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. 88 334-400; Dec. Dig. § 125.*] Error to Court of Quarter Sessions, Monmouth County. Jacob Wahle was convicted of crime, and he brings error. Affirmed. Argued November term, 1911, before GUMMERE, C. J., and SWAYZE and VOORHEES, JJ. Charles E. Cook and Wilbur A. Heisley, for plaintiff in error. John S. Applegate, Jr., prosecutor of the pleas, for the State. youngest child attained the age of 25, at which time the trust should cease and the property be divided, created a trust which violated the rule against perpetuities, as the trust estate did not vest in the beneficiaries until the child might not reach such age until more than youngest became 25 years of age, and such 21 years after the death of all the children living at the time of testator's death. [Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*] Case Certified from Circuit Court, Camden County, for Advisory Opinion. GUMMERE, C. J. The indictment prefer- efit of the children of a daughter until the red by the grand jury of Monmouth county against the plaintiff in error charged that he "on the 1st day of May, in the year 1911, and on divers other days and times between that day and the day of the finding of the indictment, unlawfully and habitually did sell, offer, and expose for sale, and cause and knowingly permit to be sold, offered, and exposed for sale, to F. P. M., and W. C. G. and other persons, whose names are to the grand inquest as yet unknown, by less measure than one quart, certain spirituous, vinous, malt, and brewed liquors, to wit, whisky and lager beer, without a license for that purpose first had and obtained, contrary," etc. The plaintiff in error demurred to the indictment upon the ground that it was void for duplicity, in that it charged two separate and distinct offenses, namely, selling liquor and permitting liquor to be sold. The demurrer was overruled, and the defendant was then sentenced to pay a fine of $75 and costs, and to be confined in the county jail for the term of five months. The single ground upon which the judgment under review is attacked by the plaintiff in error is that the trial court erred in overruling the demurrer. Ejectment by John Kates and another, trustees, against Mary J. Walker and another. Cause certified to the Supreme Court for advice. Decree advised. Argued February term, 1911, before GUM- GUMMERE, C. J. The property involved in the present litigation was the homestead farm of Joshua W. Bishop, deceased, who died on December 20, 1908. By the second item of his will the decedent devised this farm to his wife for the term of her natural life. By the fifth item of that instrument he The seventy-fourth section of the criminal procedure act of 1898 provides that "it shall gave, devised and bequeathed all of his real and personal estate not therein before disnot be lawful hereafter to indict any person posed of to John B. Kates, Samuel Sickler, or persons for the offense of maintaining a and Henry Minck in trust, and ordered and common-law nuisance or keeping a disorderly directed them to sell all of his real estate so house where the offense sought to be pun-devised to them to invest the proceeds of the ished consists wholly in the unlawful sale sale thereof, and pay the interest on such inof spirituous, vinous, malt or brewed liq-vestments to his wife during her life. The uors; but in all such cases the indictment will then proceeds as follows: "And at her shall be in form for the sale of intoxicating liquors contrary to law." The purpose of this statute is beyond question. It is to substitute for the common-law form of indictment for keeping a disorderly house a statutory form, where the habitual violation of law complained of consists in sales of liquor in violation of statutory provisions. It is not necessary that these violations shall, each of them, be the personal act of the de-moneys of my said estate, including all of fendant. Some of them may be his own acts; some of them may be acts done by his agents or employés under his authority or by his permission. Taken together, they constitute the habitual violation struck at by the statutory provision which has been cited. The indictment in the present case was not objectionable for the reason complained of by the plaintiff in error. The conviction under review will be affirmed. death it is my will that said trust continue, and I direct my said trustees to continue said investments for the benefit of my grandchildren, the children of my daughter Mary Jane Walker, until the youngest child shall attain the age of twenty-five years, at which time said trust shall end; and I order and direct my said trustees to divide all the said investments and whatever moneys shall accrue therefrom, and trust funds of every kind, in equal parts, and pay the same to my said grandchildren, the children of my said daughter Mary Jane Walker, share and share alike." Joshua W. Bishop outlived his wife; and shortly after his own death the daughter Mary Jane Walker and her husband moved into and took possession of the homestead farm. The present action is brought by the trustees under the will, and the question certified to us is whether, under the true construction of the trust provision recited, the plaintiffs are entitled to a judgment establishing their right to possession. There is no doubt but that the homestead farm was embraced in the trust provision of the will; for that provision operated upon all of the testator's estate that was not otherwise disposed of. The question for solution, therefore, is whether the trust is valid, or whether it is in violation of the rule against perpetuities, which makes void all trusts which do not vest in the object of the trust during a life or lives in being at the death of the testator, or within 21 years thereafter. It was manifestly the intention of the testator that there should be no distribution of the trust estate until the period named by him; that is, until his youngest grandchild should reach the age of 25 years, and that the interest which should come in from the investments after the death of his wife should be accumulated for the purpose of swelling the principal fund. The only gift to the grandchildren is embodied in the order to the trustees to divide the estate when the youngest grandchild shall reach the age of 25 years, and pay the same to his grandchildren share and share alike at that As was said by the Court of Errors and Appeals in Post v. Herbert's Executors, 27 N. J. Eq. 543, speaking of a similar trust provision made by a testator: "Such a disposition standing by itself could not pass a present interest, but would leave the legacy itself contingent." In the leading case of Leake v. Robinson, 2 Merivale, 363, Sir William Grant treated as unquestionable the rule that, by a mere direction to transfer or divide from and after a given event, the vesting would be postponed until that event happened. time. We advise the circuit court that because of the invalidity of the trust, under which the plaintiffs claim, judgment should be entered in the present case in favor of the defendants. STATE v. BROWN. (Supreme Court of New Jersey. Feb. 27, 1912.) 1. INTOXICATING LIQUORS (§ 150*)—SALES WITHOUT LICENSE-EVIDENCE. A wholesale liquor licensee, authorized to carry on the liquor business in a city, who accepts and fills orders for liquor for persons outside of the city, and who delivers the liquor to them from his wagon, is guilty of selling liquor outside of the city without a license. [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 164, 165; Dec. Dig. § 150.*] 2. INTOXICATING LIQUORS ( 150*) — SALES WITHOUT LICENSE-EVIDENCE. Where a wholesale liquor licensee, authorized to sell liquor in a city, filled orders for liquor from persons outside of the city, and delivered the liquor to a common carrier for delivery to the buyers, and the carrier was the agent of the licensee in making the delivery, the licensee was guilty of selling liquor outside of the city without a license. TIONS. tion of crime under Criminal Procedure Act (2 One challenging the validity of his convicComp. St. 1910, p. 1863) § 136, may not obtain a reversal on the ground of inaccuracies in the instructions not producing manifest injury. [Ed. Note.-For other cases, see Intoxicating Liquors, Dec. Dig. § 150.*] 3. CRIMINAL LAW (§ 1172*) REVIEW HARMLESS To the same effect is the late ERROR ERRONEOUS INSTRUCcase of Hewitt v. Green, 77 N. J. Eq. 358, 77 Atl. 25. It is true that this rule, like most others which have been judicially formulated for the purpose of aiding in the ascertainment of testamentary intention, is always subject to be modified or abrogated by the conditions of the case to which it is sought to be applied (Post v. Herbert's Ex'rs, supra); but we find nothing either in the context of the trust provision of the will now before us, or in any of its other provisions, which suggests that, by its application in the present case, the intention of the testator will be defeated. We conclude that, under the present will, the trust estate did not vest in the objects of the trust at the death of the testator, but that their interest remained contingent until the arrival by the youngest member of the class at the specified age of 25 years. Reaching the conclusion indicated, it results that the trust created by the testator violates the rule against perpetuities, for it is quite possible that the youngest child of Mary Jane Walker might not reach the age of 25 years until more than 21 years after the death of all of her (or his) brothers and sisters who were living at the time of the testator's decease; for the will does not speak with relation to the youngest child who should be living at the death of the testator, but of the youngest child who shall be born of the testator's daughter Mary. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3154-3163; Dec. Dig. § 1172.*] Error to Court of Quarter Sessions, Burlington County. Thomas Brown was convicted of crime, and he brings error. Affirmed. Argued February term, 1911, before GUMMERE, C. J., and TRENCHARD, J. Davis & Davis (Ashbridge & Moone, on the brief), for plaintiff in error. Samuel A. Atkinson, Prosecutor of Pleas, for the State. GUMMERE, C. J. Brown, the defendant, was convicted in the Burlington quarter sessions upon an indictment charging him with the habitual sale of liquor contrary to law. The present writ of error challenges the validity of that conviction, and the case comes up for consideration under section 136 of the criminal procedure act (2 Comp. St. 1910, p. 1863). The proofs showed that the defendant had been granted a wholesale liquor license by the excise board of the city of Burlington, authorizing him to carry on business under that license at Nos. 30 and 32 Delaware ave nue in that city. It further appeared that it |