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E. 276; Brenock v. Brenock, 230 Ill. 519, 82 close clearly that it was the intention of the tesN. E. 816; Mayer v. McCracken, 245 111, 551, tator to limit or qualify the estate devised. In 92 N. E. 355; Williams v. Elliott, 246 Ill. intention of the testator, as by the eighth clause

this will there can be no question as to the 548, 92 N. E. 960, 138 Am. St. Rep. 254; he discloses clearly and expressly that he desirAshby v. McKinlock, 271 Ill. 254, 111 N. E. ed to make an executory devise to Veronicka 101.

Mayer, her heirs and assigns forever, of the In Williams v. Elliott, supra, 246 Ill. on

same property. This question has been before

us so frequently that it is unnecessary to cite page 552, 92 N. E. 961, 138 Am. St. Rep. 254, authorities as to the proper construction to be in the opinion it is said:

placed upon this will in determining the estate

taken by the daughter, Anna, in the property “Although an estate in fee simple is devised devised to her by the third 'clause. The exit may be limited by a subsequent valid provi- ecutory devise is valid, and Anna was given a sion that the estate shall go over to others upon base or determinable fee in the property at 147 the happening of a certain contingency, The Center street, which would be defeated by her estate, when so limited, is still a fee, for the rea- death without issue during the lifetime of her son that it will last forever if the contingency mother. This property having been taken by does not happen, but so long as it is possible condemnation proceedings, in which all the parthat the contingency may happen it is a base ties having any interest in the real estate were or determinable fee. One of the contingencies made defendants, the money awarded by the upon which such a limitation may lawfully jury and paid by order of the court into the rest is the death of the first devisee without is- | hands of the county treasurer took the place of sue, and so far as the executory devise in this the real estate, and was subject to the same liincase depended upon the death of Phoebe W. itations under the will of John B. Mayer as the Price without issue it was valid. Ackless v. real estate itself had been." Seekright, Breese, 76; Summers v. Smith, 127 III. 645 (21 N. E. 191); Strain v. Sweeny, 163 In Smith v. Kimbell, supra, the testator INI. 603, 45 N. E. 201; Smith v. Kimbell, 153 Ill

; owned certain property in the city of Joliet, 368 [38 N. E, 1029); Lombard v. Witbeck, 173 Jll. 396 [51 N. E. 61); Gannon v. Peterson, 193 in this state, and in La Porte county, Ind., Ili, 372 (62 N. E, 210, 55 L. R. A. 701]; John- and directed that the same should be and beson v. Buck, 220 in. 226 [77 N. E. 163)."

come the property of his daughter, Sarah In that case the testator devised his real Jane Spears, and that should she die leaving estate in fee simple to his niece and three no heirs all of the property should be equally daughters and their heirs and assigns for- divided among his sisters, naming them. In ever, subject to the life estate of his widow. that case we held the devise to the daughter This was followed by a provision that the es- created a base or determinable fee by way tate devised to the niece should go to the of executory devise in her, and that the same daughters in equal parts, in fee simple, in was not void as a perpetuity for the reason case the niece should not dispose of it by that the words “die leaving no heirs" were will or otherwise before her death and should equivalent to “dying leaving no children or die without issue, seised of such estate. We issue,” and indicated a definite failure of isthere held the devise created by such provi- sue, and that a devise of such character sion to be an executory devise, and that the which is to take effect upon a definite failure same was void for the reason that it vested of issue is not void under the rule against in the first taker the absolute power of dis- perpetuities. position of the whole estate, which is incon Under the foregoing authorities there can sistent with the limitation attempted to be be but little question but that if this will is imposed upon it as an executory devise. 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, be [15] In construing this will it must be borne queathed to her should belong to his wife, in mind that the testator was a resident of her heirs and assigns forever, provided that the state of Indiana, that his property was if the daughter married and had children situated there, and his will was drawn and then the estate should belong to her children, executed in accordance with the laws of that the wife to act as their guardian. We there state. Under such circumstances it is to be held the devise to the daughter created a presumed that he was familiar with the laws base and determinable fee in her, and said: of that state, and intended that the devises

"The principal questions at issue and to be and bequests therein made should be condetermined here depend upon the construction strued in accordance with the laws of such of the last will and testament of John B. May state. However, the law in relation to the

The third clause of his will gave to the daughter, Anna Mayer (afterwards McCracken), creation of executory devises is substantially the fee to the real estate therein described, and, the same in every state, and our attention standing alone, created in her an estate in fee has been called to no case in the state of simple. It is the pol cy of our courts to adopt Indiana announcing a rule in any way con such a construction of a will as will give an estate of inheritance to the first devisee, unless Aicting with the one in force in this state. there are other clauses in the will which dis- In the recent case of Curry v. Curry, 58 Ind.


App. 567, 105 N. E. 951, in construing a will, vise created by the tenth item of the first by which the testator devised the residuum codicil is void, for the reason that it vests of his estate, both real and personal, to his the first taker with the absolute power of disson on certain conditions, restrictions, and position of the property, which is inconsistlimitations, and creating a trust in respect ent with and repugnant to the limitation atto such estate, which the trustees were au- tempted to be imposed upon it by such dethorized to terminate, on certain conditions, vise. The language relied upon as vesting when the devisee attained the age of 40 this power in the first taker is the provision years, and which further provided that if his that any of the children “may, as he or she 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 chil- share of my estate to any other child or dren him surviving so as to inherit after lineal descendant of mine or of my deceased him, then $10,000 of the property devised wife, giving it only to persons of my or her to the son should be equally divided between blood," coupled with the further provision two persons named, share and share alike, that when the trustees decide to, terminate and the residue given to another person who the trust "they do not do so except in a very was then living in the state of Ohio, it was strong, clear case of its propriety, and not held that the devise to the son created a base in any case to enable such child to invest or determinable fee in him. In answer to the his or her money in speculation.” While the contention of appellant that the devise to the foregoing language, standing alone and by son constituted a complete and absolute gift itself, strongly implies such power, we think to him of the property, which could not be it cannot be so construed when it is read in cut down 'by any subsequent clauses in the connection with the other provisions of the will, the court said:

will. The testator does not say that the chil"In connection with the rule insisted on by ap-dren shall have the right to dispose of the pellants, we must not ignore another equally well property when the trust is terminated, and settled, viz., "that where an estate otherwise an the fact that he says that the trust shall estate in fee simple is devised in one clause of a will in clear and decisive terms, and the subse not in any case be terminated to enable them quent provisions clearly and distinctly show an to invest their money in speculation does unmistakable intention upon the part of the tes not necessarily imply that they shall have tator to give an estate less than a fee simple, such power and may dispose of the fee title such later intention must control.' Martz, 173 Ind. 279, 287, 89 N. E. 303, 90 N: to the estate vested in them by the will. E. 309, and cases cited."

Nor do we think the fact that they are given

the right to dispose of their share by will And it was there further said:

Tenders 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-buch first taker at limited that it could only be exercised in fahis death, that such limitation over will be held vor of the lineal descendaňts 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 de devises 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. D. make an absolute gift of his property in one 281, 7 Am. St. Rep. 420; Mulvane v. Rude, supra; Ide v. Ide, supra [6 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 limi. tation 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 er of disposition, but is a limited one, which over the rule against perpetuities is not violated. can only be exercised at death by will, and See Selman v. Robertson, 46 S. C. 262, 24 S. E. then only in the particular way pointed out 187, and authorities cited.”

by the testator in his will. This is not suffiFrom the above language it will be seen cient. The power of disposition, in order to that the law in the state of Indiana is sub- defeat the base or determinable fee created stantially the same as it is in this state on by the executory devise, must be absolute this question. It matters not by the laws of and unlimited, and such that it may be exerwhich state the will in this case is construed, cised during the lifetime of the devisee as the ultimate conclusion reached must be that well as by will at death. 24 Am. & Eng. Catherine S. Brydon took only a base or de Ency. of Law (20 Ed.) 446. terminable fee in the property devised to her In Terry y. 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.

"The power of disposal is not absolute, 80 as

with absolute power of disposal in the devisee's, in accordance with the terms of his whil. 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 nection whatever between the title to the to her personal use and maintenance," the pur property taken by the children under the poses for which it was given. Trustees of Au- will and the trust created by the same instruburn Seminary v. Kellogg, 16 N. Y. 83. The ment. power was to be exercised during life and not at other, and the proceedings had in the court

Each is wholly independent of the death. An absolute power of disposal includes a power to dispose of by will as well as by sale or of common pleas of Marion county had nothotherwise during life, which is incompatible with ing whatever to do with the fee of the propa mere life estate, and such power is not given by erty vested in the children under such will. the terms of this will. The words of the power: By the provisions of the will the testator bas in the connection in which they are used, clearly indicate an intention to authorize a disposition vested the fee in the property in his children, of the estate by the devisee only by a conveyance, subject to be divested and determined in the which should take effect during her lifetime, and event of the death of any one or more of the whole scope of the will tends to the same con. them without leaving issue and subject to the clusion. It was not the intention of the testator tó confer upon her the power to dispose of the trust therein created, which might be deterproperty by will upon any object of her bounty." mined at any time, in the discretion of the

The same is true in the case at bar, which trustees. The sole object and purpose of the limits the power of disposition by will to proceedings in the court of common pleas was those who are of the blood of the testator or to secure' a termination of the trust and inhis wife.

vest the children of the testator with the 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. The only matter then before the able fee to a daughter, with the provision court and the only thing determined at the that should she die without issue of her body time was that the trust should be terminated, the remainder should at once pass and abso- but in terminating the trust the court in no lutely vest in Benjamin S. Lamothe and his way invested the children with any different heirs, but should she die leaving issue of her title to the property from that given to them body then the remainder of the property by the will of their father. Such proceedings, should pass and be vested absolutely and for- therefore, do not bar them from now assertever in such issue, "subject, nevertheless, to ing their rights in the fee of the property any. provisions or restrictions as my, said given to them by the other provisions of the daughter, Alice, may by will and testament will. see fit to make," and with the further provi For the reasons given, we are of the opin. sion that “I hereby express the wish that my ion that the children of John H. Bradley only said daughter, Alice, will make such will; acquired a base and determinable fee in the that should the said Benjamin S. Lamothe property in question, which was subject to be survive her said issue, that then the remain- divested and revert to the children of the tesder of the said property shall vest in him, tator in the event of the death of any child I being particularly desirous that said Ben- without leaving issue. This occurred in the jamin S. Lamothe should possess all the re- case of Catherine S. Brydon. mainder of my said property unless there be [18] Appellants were not guilty of laches. living direct issue of my said daughter, They commenced their action within a reaAlice," did not confer such an absolute power sonable time after any rights claimed by of disposition as would defeat the base or them accrued. They had no rights which they determinable fee created by the other provi- could enforce prior to the death of Mrs. sions of the will. We think the same may be Brydon childless. While appellants cannot said of the limited power of disposition at- recover the specific property originally turned tempted to be conferred in this case, and over by the trustees to Mrs. Brydon, that is what is said in the foregoing decision is con no fault of theirs. If they are entitled to trolling here.

recover at all they are entitled to be paid [17] The appellee further insists that the the amount of the personal property turned appellants are precluded from bringing their over by the trustees to Mrs. Brydon. action by reason of the proceedings had in For the reasons given, the judgment of the court of common pleas of Marion county, the Appellate Court will be reversed, and the Ind., more than 40 years ago, by which the decree of the circuit court will be affirmed. trust was terminated and the trust property Judgment of Appellate Court reversed. divided among the children of the testator Decree of circuit court afirmed.

(219 N. Y, 306)

ing the complaint, plaintiff appeals. ReSTUMP v. BURNS.

versed, and new trial granted. (Court of Appeals of New York. Nov. 21, 1916.)

Clifton P. Williamson, of New York City, 1. LANDLORD AND TENANT ww169(11)-PEB- for appellant. John Vernou Boutier, Jr., of SONAL INJURIES-QUESTION FOR JURY.

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 recorafter 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. [Ed. Note.-For other cases, see Landlord and

was killed. The trial court, at the close of Tenant, Cent. Dig. 88 646, 667, 684; Dec. Dig. plaintiff's case, dismissed the complaint upon Om 169(11).]

the familiar grounds that the plaintff failed 2. LANDLORD AND TENANT 162-PERSONAL to prove that the defendant was guilty of INJURIES—CASE REQUIRED OF LANDLORD. negligence, and that the intestate was free

Defendant owner of an apartment house from contributory negligence, and ordered was under a duty to deceased, bis tenant, of ex: that the exceptions be heard in the first inercising reasonable prudence and care to see that the premises were in a reasonably safe con- stance by the Appellate Division. The Apdition.

pellate Division overruled the exceptions by [Ed. Note.-For other cases, see Landlord and a decision not unanimous. Tenant, Cent. Dig. 8 629; Dec. Dig. Om162.)

(1) The cardinal facts are: The intestate, 3. LANDLORD AND TENANT @ww169(11)-PER- about 4 o'clock in the afternoon of October SONAL INJURIES QUESTION FOR JURY.

In an action for death of plaintiff's intestate 29, 1912, entered from the street the hall of resulting from injuries sustained from falling an apartment house of the defendant in into the elevator well of defendant's apartment which intestate and his wife had lived as house after walking through the open door in the wall of the elevator shaft, beside which de tenants for seven years, and walked to the fendant's janitor was standing, question wheth- entrance to the elevator in order that he er deceased on the admitted facts, which rea- might be taken to their apartment on the sonably permit opposing conclusions by fair sixth floor. The door in the wall of the ele minded men, was guilty of contributory negligence, held for the jury.

vator shaft through which the elevator was [Ed. Note. For other cases, see Landlord and reached was open. The intestate passed Tenant, Cent. Dig. 88 646, 667, 684; Dec. Dig. through it and fell to the botton of the shaft. m169(11).]

The injuries he thus received caused his 4. NEGLIGENCE 135-FREEDOM FROM CON- death. The distance from the street entrance TRIBUTORY NEGLIGENCE-INDIRECT PROOF.

In an action to recover damages for a death to that of the shaft was 18 feet. The light negligently caused, the fact that there was no in the hall was the daylight which came direct proof of the acts of deceased immediately through the glass of the door at the hall enprior to stepping into an elevator shaft does trance. Customarily, as the janitor of the not render impossible a finding that he was free from contributory negligence, but the relevant house knew, the elevator, when not in use, conditions and circumstances surrounding and stood with its floor level with that of the hall, relating to the occurrence may be submitted to the door stood open, the boy operating the the jury in the absence of such direct proof; the elevator was visible in the ball and followed fact that Code Civ. Proc. $ 841b, places burden of proving contributory negligence on defendant | the passenger into the elevator. On the ocbeing immaterial.

casion in question the elevator boy was not [Ed. Note.-For other cases, see Negligence, visible, and the janitor stood and for a minute Cent. Dig. 88 274–276; Dec. Õig. Om 135.]

or two had stood in the extreme left side 5. LANDLORD AND TENANT Cw169(11)-PER- / of the open door grasping with his left SONAL INJURIES-CARE REQUIRED OF TEN- 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 in side of the elevator, to replace upon a pulley dispute, but fair-minded men may reasonably differ, the question of contributory negligence is the cable. The width of the doorway was for the jury.

31 inches. The floor of the elevator was 5 [Ed. Note.-For other cases, see Landlord and feet and 9 inches higher than that of the Tenant, Cent. Dig. 88 646, 667, 684; Dec. Dig. hall. The height of the intestate was about Om169(11).]

5 feet 842 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, Action by Evalyn A. Stump, as administra- who testified that he "heard this man come" trix of the goods, chattels, and credits of and “felt something brush past me and of Irwin C. Stump, deceased, against Wil- thought I saw a shadow going down." liam 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- I 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 posi. janitor 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 in- with the presence of the elevator at the level tending to enter the elevator. The evidence of the floor of the hall, because the janitor does not disclose any ground for a belief on might have been thus placed in working at the part of the janitor that nobody would the inside of the elevator itself, and neither desire to take the elevator during the time he fact clearly indicated that the open door maintained his position. The janitor knew did not lead into the elevator. Whether or the existing conditions as to the degree of not a person situated as was the intestate, light within the hall and as to the exact using attention and care ordinary under the location of the elevator and of the boy who circumstances and conditions, would have operated it. The knowledge we have spoken seen the floor of the elevator 5 feet and 9 of is not inconsistent or irreconcilable with inches above that of the hall, reasonably a natural apprehension on the part of the permits opposing answers and cannot be dejanitor that somebody might pass through termined as a matter of law. The verdict the door into the shaft, and it was for the of a jury, based upon a consideration of all jury to determine under a proper submission the evidence, facts, and inferences, can alone of all the evidence with proper instructions establish the negligence or freedom from neg. whether or not the janitor, within reasonable ligence of the intestate. thoughtfulness in regard to the safety of a The judgment should be reversed, and a person who intended to take the elevator, new trial granted, with costs to abide the should have apprehended that a person might event. in the exercise of due care pass through the door.

WILLARD BARTLETT, O. J., and HISThe plaintiff was entitled to go to the jury COCK, CUDDEBACK, HOGAN, CARDOZO, upon the issue of the freedom of the intes- and POUND, JJ., concur. tate from contributory negligence. Under the record as presented to us it is immaterial Judgment reversed, etc. that under the Code of Civil Procedure, 8 8416, the burden of proving the intestate guilty of contributory negligence was on the

(219 N. Y, 317) defendant. We have concluded that the MEISLE V. NEW YORK CENT. & H. R. question of the defendant's negligence was,

R. CO. upon the entire evidence, for the jury; there. (Court of Appeals of New York. Nov, 21, fore the remaining question is whether or not

1916.) the entire evidence proved that the intestate

1. FERRIES 32-NEGLIGENCE. was guilty, as a matter of law, of contribu

It was not necessary that a railroad operattory negligence. The fact that there was no ing a steam ferryboat should have had notice direct proof of the acts of the intestate im- that failure to put up the chains on the ferrymediately preceding the stepping into the boat at the end of the boat would result in an shaft does not render impossible the finding clear to the ordinarily prudent eye.

accident, if the possibility of the accident was that he was free from contributory negll. [Ed. Note.-For other cases, see Ferries, Cent. gence. It has become the established law Dig. 88 79-87; Dec. Dig. 32.] of this state that, in an action to recover 2. FERRIES 32-DUTY OF FERRYMEN-REAdamages 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 ferry

men, since the term is relative. they create. Sackheim v. Pigueron, 215 N.

(Ed. Note.-For other cases, see Ferries, Cent. Y. 62, 109 N. E. 109.

Dig. $$ 79–87; Dec. Dig. Om32.]

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