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E. 276; Brenock v. Brenock, 230 Ill. 519, 82 N. E. 816; Mayer v. McCracken, 245 Ill. 551, 92 N. E. 355; Williams v. Elliott, 246 Ill. 548, 92 N. E. 960, 138 Am. St. Rep. 254; Ashby v. McKinlock, 271 Ill. 254, 111 N. E. 101.

In Williams v. Elliott, supra, 246 Ill. on page 552, 92 N. E. 961, 138 Am. St. Rep. 254, in the opinion it is said:

"Although an estate in fee simple is devised it may be limited by a subsequent valid provision that the estate shall go over to others upon the happening of a certain contingency. The estate, when so limited, is still a fee, for the reason that it will last forever if the contingency does not happen, but so long as it is possible that the contingency may happen it is a base or determinable fee. One of the contingencies upon which such a limitation may lawfully rest is the death of the first devisee without issue, and so far as the executory devise in this case depended upon the death of Phoebe W. Price without issue it was valid. Ackless V. Seekright, Breese, 76; Summers v. Smith, 127 Ill. 645 [21 N. E. 191]; Strain v. Sweeny, 163 Ill. 603, 45 N. E. 201; Smith v. Kimbell, 153 Ill. 368 [38 N. E. 1029]; Lombard v. Witbeck, 173 Ill. 396 [51 N. E. 611; Gannon v. Peterson, 193 Ill. 372 [62 N. E. 210, 55 L. R. A. 701]; Johnson v. Buck, 220 IN. 226 [77 N. E. 163]."

In that case the testator devised his real estate in fee simple to his niece and three daughters and their heirs and assigns forever, subject to the life estate of his widow. This was followed by a provision that the estate devised to the niece should go to the daughters in equal parts, in fee simple, in case the niece should not dispose of it by will or otherwise before her death and should die without issue, seised of such estate. We there held the devise created by such provision to be an executory devise, and that the same was void for the reason that it vested in the first taker the absolute power of disposition of the whole estate, which is inconsistent with the limitation attempted to be imposed upon it as an executory devise.

close clearly that it was the intention of the testator to limit or qualify the estate devised. In intention of the testator, as by the eighth clause this will there can be no question as to the he discloses clearly and expressly that he desired to make an executory devise to Veronicka Mayer, her heirs and assigns forever, of the same property. This question has been before us so frequently that it is unnecessary to cite authorities as to the proper construction to be placed upon this will in determining the estate taken by the daughter, Anna, in the property devised to her by the third clause. The executory devise is valid, and Anna was given a base or determinable fee in the property at 147 Center street, which would be defeated by her death without issue during the lifetime of her mother. This property having been taken by condemnation proceedings, in which all the parties having any interest in the real estate were made defendants, the money awarded by the jury and paid by order of the court into the hands of the county treasurer took the place of the real estate, and was subject to the same limitations under the will of John B. Mayer as the real estate itself had been."

In Smith v. Kimbell, supra, the testator owned certain property in the city of Joliet, in this state, and in La Porte county, Ind., and directed that the same should be and become the property of his daughter, Sarah Jane Spears, and that should she die leaving no heirs all of the property should be equally divided among his sisters, naming them. In that case we held the devise to the daughter created a base or determinable fee by way of executory devise in her, and that the same was not void as a perpetuity for the reason that the words "die leaving no heirs" were equivalent to "dying leaving no children or issue," and indicated a definite failure of issue, and that a devise of such character which is to take effect upon a definite failure of issue is not void under the rule against perpetuities.

Under the foregoing authorities there can be but little question but that if this will is construed in accordance with the decisions In Mayer v. McCracken, supra, the testa- of this state the children of the testator took tor by the third clause of his will gave his but a base or determinable fee in the propdaughter certain property situated at and erty devised to them, subject to be divested known as 147 Center street, in the city of and revert to the children of the grantor, in Chicago, her heirs and assigns forever. By accordance with the provisions of the will, the eighth clause he further directed that in case of the death of any child or chilshould his daughter die before his wife, then dren without leaving issue. all of the property, real and personal, bequeathed to her should belong to his wife, her heirs and assigns forever, provided that if the daughter married and had children then the estate should belong to her children, the wife to act as their guardian. We there held the devise to the daughter created a base and determinable fee in her, and said: "The principal questions at issue and to be determined here depend upon the construction of the last will and testament of John B. May er. The third clause of his will gave to the daughter, Anna Mayer (afterwards McCracken), the fee to the real estate therein described, and, standing alone, created in her an estate in fee simple. It is the pol cy of our courts to adopt such a construction of a will as will give an estate of inheritance to the first devisee, unless there are other clauses in the will which dis

[15] In construing this will it must be borne in mind that the testator was a resident of the state of Indiana, that his property was situated there, and his will was drawn and executed in accordance with the laws of that state. Under such circumstances it is to be presumed that he was familiar with the laws of that state, and intended that the devises and bequests therein made should be construed in accordance with the laws of such state. However, the law in relation to the creation of executory devises is substantially the same in every state, and our attention has been called to no case in the state of Indiana announcing a rule in any way con flicting with the one in force in this state. In the recent case of Curry v. Curry, 58 Ind.

vise created by the tenth item of the first codicil is void, for the reason that it vests the first taker with the absolute power of disposition of the property, which is inconsistent with and repugnant to the limitation attempted to be imposed upon it by such devise. The language relied upon as vesting this power in the first taker is the provision that any of the children “may, as he or she

App. 567, 105 N. E. 951, in construing a will by which the testator devised the residuum of his estate, both real and personal, to his son on certain conditions, restrictions, and limitations, and creating a trust in respect to such estate, which the trustees were authorized to terminate, on certain conditions, when the devisee attained the age of 40 years, and which further provided that if his son should never marry, or if he should mar-pleases, by will give and bequeath his or her ry and die without leaving a wife and children him surviving so as to inherit after him, then $10,000 of the property devised to the son should be equally divided between two persons named, share and share alike, and the residue given to another person who was then living in the state of Ohio, it was held that the devise to the son created a base or determinable fee in him. In answer to the contention of appellant that the devise to the son constituted a complete and absolute gift to him of the property, which could not be cut down by any subsequent clauses in the will, the court said:

"In connection with the rule insisted on by appellants, we must not ignore another equally well settled, viz., that where an estate otherwise an estate in fee simple is devised in one clause of a will in clear and decisive terms, and the subsequent provisions clearly and distinctly show an unmistakable intention upon the part of the testator to give an estate less than a fee simple, such later intention must control.' Hayes v. Martz, 173 Ind. 279, 287, 89 N. E. 303, 90 N. E. 309, and cases cited."

share of my estate to any other child or lineal descendant of mine or of my deceased wife, giving it only to persons of my or her blood," coupled with the further provision that when the trustees decide to terminate the trust "they do not do so except in a very strong, clear case of its propriety, and not in any case to enable such child to invest his or her money in speculation." While the foregoing language, standing alone and by itself, strongly implies such power, we think it cannot be so construed when it is read in connection with the other provisions of the will. The testator does not say that the children shall have the right to dispose of the property when the trust is terminated, and the fact that he says that the trust shall not in any case be terminated to enable them to invest their money in speculation does not necessarily imply that they shall have such power and may dispose of the fee title to the estate vested in them by the will. Nor do we think the fact that they are given the right to dispose of their share by will renders the executory devise or bequest void "It is also true that where a testator by one for that reason. The power granted by that item of his will gives to a devisee an absolute and unqualified fee in real estate and by another item clause is not an absolute right of disposiattempts to make a gift or devise over of what tion, but by its terms is so circumscribed and may remain undisposed of by such first taker at limited that it could only be exercised in fahis death, that such limitation over will be held vor of the lineal descendants of the testator void for repugnancy. This is necessarily so, because where such testator, by one item of his will or his wife. It is inconsistent with the dedevises to a first taker an absolute estate in fee, vise of the absolute estate to the children, he has no estate left after the vesting of such and would be void as a limitation upon such precedent estate, out of which to carve a remain- estate for the reason that a person cannot der. Outland v. Bowen, 115 Ind. 150, 17 N. E. 281, 7 Am. St. Rep. 420; Mulvane v. Rude, su- make an absolute gift of his property in one pra; Ide v. Ide, supra [5 Mass. 500]; Damrell part of his will and by a subsequent clause v. Hartt, 137 Mass. 218. The authorities, how-restrict the free use or disposition of such ever, seem to recognize a distinction between a property. Jenne v. Jenne, 271 Ill. 526, 111 N. limitation over by way of remainder and a limitation over by way of executory devise. The E. 540. The power granted in the instant case former will not be upheld while the latter will is not one of absolute and unrestricted powbe, provided that by the terms of such limitation over the rule against perpetuities is not violated. See Selman v. Robertson, 46 S. C. 262, 24 S. E. 187, and authorities cited."

And it was there further said:

er of disposition, but is a limited one, which can only be exercised at death by will, and then only in the particular way pointed out by the testator in his will. This is not sufficient. The power of disposition, in order to defeat the base or determinable fee created by the executory devise, must be absolute and unlimited, and such that it may be exercised during the lifetime of the devisee as well as by will at death. 24 Am. & Eng. Ency. of Law (2d Ed.) 446.

From the above language it will be seen that the law in the state of Indiana is substantially the same as it is in this state on this question. It matters not by the laws of which state the will in this case is construed, the ultimate conclusion reached must be that Catherine S. Brydon took only a base or determinable fee in the property devised to her In Terry v. Wiggins, 47 N. Y. 512, the by her father's will, and upon her death with-power annexed to the gift was 'to sell or out leaving issue her estate reverted to and otherwise dispose' of the property if the devvested in the other children of the testator isee should require it or deem it expedient,' in accordance with the terms and provisions and it was there said: of his will.

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"The power of disposal is not absolute, so as

[16] Appellee insists that the executory de- to bring it within the rule making all devises

nection whatever between the title to the property taken by the children under the will and the trust created by the same instrument. Each is wholly independent of the other, and the proceedings had in the court of common pleas of Marion county had nothing whatever to do with the fee of the property vested in the children under such will. By the provisions of the will the testator has vested the fee in the property in his children, subject to be divested and determined in the event of the death of any one or more of them without leaving issue and subject to the trust therein created, which might be determined at any time, in the discretion of the trustees. The sole object and purpose of the proceedings in the court of common pleas was to secure a termination of the trust and invest the children of the testator with the

with absolute power of disposal in the devisee's, in accordance with the terms of his will. As gifts in fee. The power could only be exercised, we construe this instrument there is no conunder the will, in case the wife should require it or should deem it expedient; that is, with a view to her 'personal use and maintenance,' the purposes for which it was given. Trustees of Auburn Seminary v. Kellogg, 16 N. Y. 83. The power was to be exercised during life and not at death. An absolute power of disposal includes a power to dispose of by will as well as by sale or otherwise during life, which is incompatible with a mere life estate, and such power is not given by the terms of this will. The words of the power, in the connection in which they are used, clearly indicate an intention to authorize a disposition of the estate by the devisee only by a conveyance, which should take effect during her lifetime, and the whole scope of the will tends to the same conclusion. It was not the intention of the testator to confer upon her the power to dispose of the property by will upon any object of her bounty." The same is true in the case at bar, which limits the power of disposition by will to those who are of the blood of the testator or his wife. In Healy v. Eastlake, 152 Ill. 424, 39 N. E. property devised to them, relieved of the 260, we held a devise of a base or determin-trust. able fee to a daughter, with the provision that should she die without issue of her body the remainder should at once pass and absolutely vest in Benjamin S. Lamothe and his heirs, but should she die leaving issue of her body then the remainder of the property should pass and be vested absolutely and forever in such issue, "subject, nevertheless, to any provisions or restrictions as my said daughter, Alice, may by will and testament see fit to make," and with the further provision that "I hereby express the wish that my said daughter, Alice, will make such will; that should the said Benjamin S. Lamothe survive her said issue, that then the remainder of the said property shall vest in him, I being particularly desirous that said Benjamin S. Lamothe should possess all the remainder of my said property unless there be living direct issue of my said daughter, Alice," did not confer such an absolute power of disposition as would defeat the base or determinable fee created by the other provisions of the will. We think the same may be said of the limited power of disposition at-recover the specific property originally turned tempted to be conferred in this case, and what is said in the foregoing decision is controlling here.

[17] The appellee further insists that the appellants are precluded from bringing their action by reason of the proceedings had in the court of common pleas of Marion county, Ind., more than 40 years ago, by which the trust was terminated and the trust property divided among the children of the testator

The only matter then before the court and the only thing determined at the time was that the trust should be terminated, but in terminating the trust the court in no way invested the children with any different title to the property from that given to them by the will of their father. Such proceedings, therefore, do not bar them from now asserting their rights in the fee of the property given to them by the other provisions of the will.

For the reasons given, we are of the opinion that the children of John H. Bradley only acquired a base and determinable fee in the property in question, which was subject to be divested and revert to the children of the testator in the event of the death of any child without leaving issue. This occurred in the case of Catherine S. Brydon.

[18] Appellants were not guilty of laches. They commenced their action within a reasonable time after any rights claimed by them accrued. They had no rights which they could enforce prior to the death of Mrs. Brydon childless. While appellants cannot

over by the trustees to Mrs. Brydon, that is no fault of theirs. If they are entitled to recover at all they are entitled to be paid the amount of the personal property turned over by the trustees to Mrs. Brydon.

For the reasons given, the judgment of the Appellate Court will be reversed, and the decree of the circuit court will be affirmed. Judgment of Appellate Court reversed. Decree of circuit court affirmed.

(219 N. Y. 306)

STUMP v. BURNS. (Court of Appeals of New York. Nov. 21, 1916.) 1. LANDLORD AND TENANT 169(11)-PER

SONAL INJURIES-QUESTION FOR JURY.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 646, 667, 684; Dec. Dig. 169(11).]

ing the complaint, plaintiff appeals. Reversed, and new trial granted.

Clifton P. Williamson, of New York City, for appellant. John Vernou Bouvier, Jr., of New York City, for respondent.

In an action for death of plaintiff's intestate resulting from injuries sustained from falling into the elevator well of defendant's apartment house, of which he was a tenant, COLLIN, J. The plaintiff seeks to recovafter walking through the open door in the wall er, under the statute (Code of Civil Proceof the elevator shaft, beside which defendant's dure, & 1902), the damages for a neglect of janitor was standing, question of defendant's the defendant through which her intestate negligence held for the jury. was killed. The trial court, at the close of plaintiff's case, dismissed the complaint upon the familiar grounds that the plaintff failed to prove that the defendant was guilty of negligence, and that the intestate was free from contributory negligence, and ordered that the exceptions be heard in the first instance by the Appellate Division. The Appellate Division overruled the exceptions by a decision not unanimous.

2. LANDLORD AND TENANT

162-PERSONAL INJURIES-CASE REQUIRED OF LANDlord. Defendant owner of an apartment house was under a duty to deceased, his tenant, of exercising reasonable prudence and care to see that the premises were in a reasonably safe condition.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 629; Dec. Dig. 162.] 3. LANDLORD AND TENANT 169(11)-PERSONAL INJURIES-QUESTION FOR JURY.

In an action for death of plaintiff's intestate resulting from injuries sustained from falling into the elevator well of defendant's apartment house after walking through the open door in the wall of the elevator shaft, beside which de fendant's janitor was standing, question whether deceased on the admitted facts, which reasonably permit opposing conclusions by fairminded men, was guilty of contributory negligence, held for the jury.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 646, 667, 684; Dec. Dig. 169(11).]

4. NEGLIGENCE 135-FREEDOM FROM CONTRIBUTORY NEGLIGENCE-INDIRECT PROOF.

[1] The cardinal facts are: The intestate, about 4 o'clock in the afternoon of October 29, 1912, entered from the street the hall of an apartment house of the defendant in which intestate and his wife had lived as tenants for seven years, and walked to the entrance to the elevator in order that he might be taken to their apartment on the sixth floor. The door in the wall of the elevator shaft through which the elevator was reached was open. The intestate passed through it and fell to the botton of the shaft. The injuries he thus received caused his death. The distance from the street entrance to that of the shaft was 18 feet. The light in the hall was the daylight which came through the glass of the door at the hall entrance. Customarily, as the janitor of the house knew, the elevator, when not in use, stood with its floor level with that of the hall, the door stood open, the boy operating the elevator was visible in the hall and followed the passenger into the elevator. On the occasion in question the elevator boy was not visible, and the janitor stood and for a minute or two had stood in the extreme left side of the open door grasping with his left hand the iron grillwork of the wall of the When deceased, a tenant in defendant's shaft, and with his right hand stretched upapartment house, stepped through an open door wards within the shaft to the left under into an elevator well, if the facts are not inside of the elevator, to replace upon a pulley dispute, but fair-minded men may reasonably differ, the question of contributory negligence is for the jury.

In an action to recover damages for a death negligently caused, the fact that there was no direct proof of the acts of deceased immediately prior to stepping into an elevator shaft does not render impossible a finding that he was free from contributory negligence, but the relevant conditions and circumstances surrounding and relating to the occurrence may be submitted to the jury in the absence of such direct proof; the fact that Code Civ. Proc. § 841b, places burden of proving contributory negligence on defendant being immaterial.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 274-276; Dec. Dig. 135.] 5. LANDLORD AND TENANT 169(11)-PERSONAL INJURIES-CARE REQUIRED OF TEN

ANT.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 646, 667, 684; Dec. Dig. 169(11).]

the cable. The width of the doorway was 31 inches. The floor of the elevator was 5 feet and 9 inches higher than that of the hall. The height of the intestate was about 5 feet 81⁄2 inches, and his weight was about

Appeal from Supreme Court, Appellate Di- 235 pounds. He stepped through the open vision, First Department.

door between its right side and the janitor, who testified that he "heard this man come" and "felt something brush past me and thought I saw a shadow going down."

Action by Evalyn A. Stump, as administratrix of the goods, chattels, and credits of of Irwin C. Stump, deceased, against William Burns. From a judgment upon an or- [2-5] The plaintiff was entitled to go to der of the Appellate Division (165 App. Div. the jury upon the issue of the defendant's 978, 150 N. Y. Supp. 1113) overruling plain- negligence. The defendant was, as to the tiff's exceptions to a judgment dismissing the intestate, under the duty of seeing that the complaint and directing a judgment dismiss-premises were in a reasonably safe condition,

but the measure of his duty was reasonable If the intestate did not act with reasonprudence and care. Griffen v. Manice, 166 able and ordinary care, attention, and pruN. Y. 188, 59 N. E. 925, 52 L. R. A. 922, 82 dence, he was guilty of negligence. The Am. Rep. 630. The open door leading into plaintiff cannot recover on account of his the elevator permitted the intestate, without death in case the injuries causing it resulted hindrance to enter the elevator, and was an in whole or in part by his imprudence or inindication that the elevator was there pres- attention; and, although the facts are not ent and could be entered. The janitor, stand-in dispute, if they reasonably permit opposing within it, did not operate as a bar or ing conclusions by fair-minded and honest obstruction to a person desiring to enter. men as to whether or not the injuries were The defendant, through his servant, the contributed to by the carlessness or imprujanitor, knew that the door was open, and dence of the intestate, the question is for the that the intestate could pass between the jury. The facts that the janitor and his posijanitor and the right side of the door. He tion and attitude were obvious to the intesknew to what extent, if any, the open door tate, and that the boy who ran the elevator would induce and the position of the janitor was not visible in the hall, had their imporwould, within reasonable anticipation or pre-tance, but the former was not inconsistent science, warn or interfere with a person Intending to enter the elevator. The evidence does not disclose any ground for a belief on the part of the janitor that nobody would desire to take the elevator during the time he maintained his position. The janitor knew the existing conditions as to the degree of light within the hall and as to the exact location of the elevator and of the boy who operated it. The knowledge we have spoken of is not inconsistent or irreconcilable with a natural apprehension on the part of the janitor that somebody might pass through the door into the shaft, and it was for the jury to determine under a proper submission of all the evidence with proper instructions whether or not the janitor, within reasonable thoughtfulness in regard to the safety of a person who intended to take the elevator, should have apprehended that a person might In the exercise of due care pass through the door.

with the presence of the elevator at the level of the floor of the hall, because the janitor might have been thus placed in working at the inside of the elevator itself, and neither fact clearly indicated that the open door did not lead into the elevator. Whether or not a person situated as was the intestate, using attention and care ordinary under the circumstances and conditions, would have seen the floor of the elevator 5 feet and 9 inches above that of the hall, reasonably permits opposing answers and cannot be determined as a matter of law. The verdict of a jury, based upon a consideration of all the evidence, facts, and inferences, can alone establish the negligence or freedom from negligence of the intestate.

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

WILLARD BARTLETT, C. J., and HISCOCK, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

Judgment reversed, etc.

(219 N. Y. 317) MEISLE v. NEW YORK CENT, & H. R. R. CO.

1916.)

32-NEGLIGENCE.

Nov. 21,

The plaintiff was entitled to go to the jury upon the issue of the freedom of the intestate from contributory negligence. Under the record as presented to us it is immaterial that under the Code of Civil Procedure, § 841b, the burden of proving the intestate guilty of contributory negligence was on the defendant. We have concluded that the question of the defendant's negligence was, upon the entire evidence, for the jury; there- (Court of Appeals of New York. fore the remaining question is whether or not the entire evidence proved that the intestate was guilty, as a matter of law, of contributory negligence. The fact that there was no direct proof of the acts of the intestate immediately preceding the stepping into the shaft does not render impossible the finding that he was free from contributory negli gence. It has become the established law of this state that, in an action to recover damages for a death negligently caused, the SONABLE CARE. relevant conditions and circumstances sur-franchise they exercise, and the character of the Ferrymen, by reason of the nature of the rounding and relating to the occurrence may services they render to the public, are held to be submitted to the jury, in the absence of extreme diligence and care, and to a stringent such direct proof, in order that the jury liability for any neglect or omission of duty, may determine the inferences, if any, which which is the rule of reasonable care for ferrythey create. Sackheim v. Pigueron, 215 N. Y. 62, 109 N. E. 109.

1. FERRIES
It was not necessary that a railroad operat-
ing a steam ferryboat should have had notice
that failure to put up the chains on the ferry-
boat at the end of the boat would result in an
clear to the ordinarily prudent eye.
accident, if the possibility of the accident was

[Ed. Note. For other cases, see Ferries, Cent. Dig. $$ 79-87; Dec. Dig. 32.]

2. FERRIES 32-DUTY OF FERRYMEN-REA

men, since the term is relative.

[Ed. Note. For other cases, see Ferries, Cent. Dig. $$ 79-87; Dec. Dig. 32.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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