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and on the death of any beneficiary "in tention is that the life estates of the primary trust for his, her or their child or children beneficiaries would be legal instead of equiand the issue, if any, of any of his, her or table, and would not suspend the absolute their deceased child or children who shall ownership of the property for any period be living at the time of his, her or their whatever. In that question, however, the decease respectively, his, her or their execu appellants have no interest. It concerns only tors, administrators and assigns.” In case the life tenants. It is urged, however, that of the death of any beneficiary without leav the testator intended to create a trust and ing issue at his death there is a gift over that if his intention is not allowed to prevail of which it is sufficient to say that its terms the whole testamentary scheme should fall. are such as to render it concededly illegal This argument is equally applicable to every and void, and so the courts below have held. grant made to one for the use or benefit of The invalidity of the gift over in default of another, and would abrogate the statute issue surviving the life tenant cannot affect which prescribes in such case, not that the the primary gift to that issue if there should grant shall be void, but that the legal title be such. Harrison v. Harrison, 36 N. Y. 513; shall rest in the beneficiary. Woodgate v. Fleet, 64 N. Y. 566; Underwood We are therefore of opinion that the judgv. Curtis, 127 N. Y. 523, 28 N. E. 585. The ments of the court below were correct, and question then is as to the interpretation and should be in all respects affirmed, with costs effect to be given to the provision in favor to all parties, to be paid out of the estate. of the issue of the life tenant. If that gift terminates the trust, then there is no illegal O'BRIEN, J. This was an action to prosuspension of the power of alienation or of cure a judicial construction of the will of the absolute ownership of the property; David Stewart Denison, who died on July 1, while, on the other hand, if by the provisions 1898. The will and the codicil attached were of the gift a trust otherwise lawful is con

admitted to probate as valid testamentary intinued for the benefit of the children, the gift struments and the questions in this case rewould be void as suspending the absolute late solely to the construction and meaning ownership of property during the lives of

of the seventh or residuary clause. The persons not in being at the death of the testa

court at Special Term held that the will was tor. The learned trial judge held that on

valid and this judgment was affirmed on the death of a life tenant the corpus of his appeal. The contention of the appellants is share vested absolutely in his issue. In this that the residuary clause is void for the reaview we think he was clearly correct. The son that by its provisions the power of alienatrust designated in the will is a dry or pas tion was suspended for more than two lives. sive trust involving no active duties on the It is argued that the language used in frampart of the trustees. In such case the law ing this clause creates a perpetual trust, vests the legal title in the beneficiary. Real and therefore, of course, suspends the power Property Law, Laws 1896, p. 570, c. 547, § 73. of alienation. It is not claimed to be merely A grant to A. in trust or for the use or bene the creation of a trust extending beyond two fit of B. is not void, nor does it fail. It is lives, but a trust that was to endure forever in law a grant to B. Wright v. Douglas, 7 and tie up the title to the residuary estata N. Y, 564; Woodgate v. Fleet, supra. It is perpetually. also quite apparent that such was the intent The residuary clause is very long and very of the testator, for while the executors are much involved. All that was necessary could directed to hold the shares of the benefici

have been expressed in very few words. aries who took immediately on the death of But the clause actually fills nearly four the testator during their respective lives, printed pages of the record, and in the multi the provision for the issue of the life tenant tude of words and phrases employed it is is unlimited and unqualified, "in trust for not surprising that there is great difficulty his, her or their child

* his, her or in ascertaining the meaning of the instrutheir executors, administrators and assigns." ment. It may be conceded that from the Surely the testator, although layman as he wealth of words employed by the draftsman was, and possibly ignorant of the statute there can be selected some expressions which against perpetuities as he may have been, standing alone and construed literally, would never contemplated the continuance of a render the testator's disposition of the resid: trust for the benefit of the assignee of those uary estate invalid. On the other hand, children. See Hopkins v. Kent, 145 N. Y. it is quite clear that when the will is viewed 363, 40 N. E. 4. The learned counsel for as a whole the mind is forced to the concluthe appellants insists that the same doctrine, sion that the testator did not intend to die if applied to the trusts for the immediate intestate as to any part of his property, beneficiaries, renders them inoperative as either by omiting to make a will at all, or trusts, for as to those no active duties are by making one so palpably contrary to law imposed upon the trustees. Other portions as some expressions in the testamentary of the will lead to a contrary view, but, grant clause would indicate if the appellants' coning the claim of the counsel in this respect, it struction is to be adopted. It is therefore can have no effeci on the validity of the will. the duty of this court to sustain the will, it The only result that would flow from his con that result is possible by means of any fair

construction, rather than to hold that the seem to be reasonably clear that the testator testator intended to create a trust in per did not, by this latter provision, intend to petuity. It is not a holographic will. It create an active trust, but that the trustees was evidently drawn by counsel learned in were to hold the property simply for the purthe law. The draftsman,

The draftsman, however, failed pose of distribution. to appreciate the importance of simple and There are several provisions of the will concise language, and was led, for some rea that justify this conclusion: (1) There were son, to insert provisions wuich were wholly no words directing that the trustees shall unnecessary, and which, taken literally or hold such shares for their use and benefit upon close construction, would endanger the during their respective lives. The testator validity of the whole instrument.

deemed those words necessary in creating the It is conceded that by the terms of the will firs

first life estate, and their omission here is the widow of the deceased was given a life quite significant. (2) The provision that interest in the whole residuary estate. Upon after the death of the first life beneficiaries her death one of the future estates in trust, the trustees should hold their respective which the statute permits to be created, had shares in trust for their respective children terminated, and, uness more than another who shall be living at the time of such decease trust estate for life was created, then the and the then living issue of such as shall statute was not violated. The residuary have died, adds force to this construction. clause is so long and so obscure that it is If the testator intended a perpetual trust for not practicable to set it out in full. It has the benefit of the children and descendants of been analyzed with great intelligence in the the trustees, why did he so carefully limit very able opinion which was given by the the estate upon the death of the first life learned judge at Special Term. We agree

beneficiaries to such children and descendants in the construction given to the will in that as should then be living? (3) Further conopinion, and what remains to be said here firmation of this construction is found in the may seem to be little more than a para fact that the testator directs that, upon the phrase of that opinion; but since the learned death of the life beneficiaries, their respective court below on appeal gave no opinion, it may estates shall be held for their children and be necessary for us to express briefly the descendants as tenants in common. This views which we think must lead to an affirm clearly indicates that no active trust was ance of the judgment. This is a case for the contemplated, but merely a power of distribuapplication of the rule that, in order to effec

tion.

(4) It will be observed further that the tuate the intention of the testator derived cross-remainders which the will purports from the whole will, grammatical rules may to create upon the death of the children be disregarded and words and limitations and descendants of the trustees to whom may be transposed, supplied or rejected. Pond shares have been limited for life are ineffectV. Bergh, 10 Paige, 140, 152; Phillips v. ual. These cross-remainders can only be givDavies, 92 N. Y. 199; Starr v. Starr, 132 en effect by tacking them to the first life esN. Y. 158, 30 N. E. 384.

tates created. 'as those are the only estates The testator, in the residuary clause, made that are specifically limited for life. If, therea bequest in trust for the use and benefit of fore, the testator had intended a perpetual the children of his brother and sister who trust and not merely a trust for the purpose should be living at the time of his death, and of distribution to the second takers, why did the issue then living of deceased children, and he limit the cross-remainders to the death of directed the trustees to divide his estate as the first takers without issue? soon as practicable into as many shares as Again, if the will had said "in trust to there were beneficiaries, and to hold the divide the estate among his, her or their child shares so set apart for their respective use or children," instead of "in trust for his, her and benefit during their respective lives. or their children," no one would question Later on the will authorizes the trustees this construction. The context of the will to sell and dispose of such part of the estate shows that this was the clear meaning and as may be necessary to make a fair and the courts may interpolate those words in equitable division of the same among the order to carry out such intention. While children and descendants of said trustees these cross-remainders are doubtless invalid, living at the time of the testator's death. they are of no present consequence, inasmuch It is entirely clear that the will thus created as the conditions which would give rise to separate life estates in trust, and that it did them have never occurred. It is generally not suspend the power of alienation of any quite sufficient to deal with these questions portion of the trust estate for more than a when the case arises. They certainly can single life, in addition to that of the widow. have no effect upon an interest bequeathed The will further provides that after the re to a life beneficiary who has children or othspective deaths of such life beneficiaries their er descendants. Hence, these cross-remainrespective shares shall be held in trust for ders may be eliminated from the case since their respective children and the issue of such it cannot be said that their presence in the as shall have died, as tenants in common, the will is necessary for any general scheme of children to take per capita and the issue of the testator in the disposition of his property. deceased children per stirpes. It would also The provision that, in case each and every

N. Y.) VILLAGE OF CARTHAGE v. CENTRAL NEW YORK TEL. & TEL. CO.

)

105

Appeal from Supreme Court, Appellate Division, Fourth Department.

Suit by the village of Carthage against the Central New York Telephone & Telegraph Company. From an order of the Appellate Division (96 N. Y. Supp. 919, 110 App. Div. 625), reversing by a divided court an order (96 N. Y. Supp. 917) vacating a temporary injunction, complainant appeals. Reversed.

Frederick G. Fincke and W. B. Van Allen, for appellant. A. E. Kilby, for respondent. .

one of the life beneficiaries should die without children or descendants, the testator's estate should be distributed according to the intestate laws, was evidently inserted out of abundant caution to guard against a possible intestacy and is of no consequence for the reasons already stated. So, also, the provision that the shares of the testator's nieces and grandnieces shall be held by the trustees for their separate use, free and clear from any debts of their husbands, has reference solely to the first life beneficiaries. This is clearly manifest because the language is “to hold the shares or portions which in the division of my estate they shall set apart to my nieces and grandnieces for their sole and separate use and benefit free and clear," etc. The first life estates are the only ones that the trustees are called upon to divide and set apart. We think that the will, taken as a whole, is capable of the construction that will render it valid, and that the objectionable clauses above referred to can be cut off and eliminated without destroying the general scheme of the testator.

The judgment should be affirmed, with costs to all parties who have appeared in this court, payable out of the estate.

VANN, WERNER, and HISCOCK, JJ., concur with CULLEN, C. J. O'BRIEN, J., reads for affirmance. HAIGHT, J., dissents. WILLARD BARTLETT, J., not sitting.

Judgment affirmed.

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(185 N. Y. 448) VILLAGE OF CARTHAGE V. CENTRAL NEW YORK TELEPHONE & TELE

GRAPH CO. (Court of Appeals of New York. June 19,

1906.) 1. TELEGRAPIS AND TELEPIIONES — POLES WIRES-RIGHT TO ERECT-ACQUISITION.

Telegraph and telephone companies derive their right to erect their poles and string their wires along streets and highways directly from the state.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, $ 6.] 2. MUNICIPAL CORPORATIONS - VILLAGES

POWER TO REGULATE ERECTION OF TELEGRAPII POLES IN STREETS.

Transportation Corporations Law, Laws 1890, p. 1152, c. 566, art. 8, § 102, declares that telegraph and telephone corporations may erect, construct, and maintain the necessary fixtures for their lines "upon, over or under" any of the public roads, streets, and highways, etc.; and Village Law, Laws 1897, p. 391, c. 414, § 89, subd. 9, confers on villages power to regulate the erection of telegraph, telephone, or electric light poles or the stringing of wires in, over, or upon the streets or public grounds, or upon, over, or in front of any building or buildings. Held, that such power to regulate was intended to authorize villages to determine the location of the poles and the streets to be occupied and did not authorize villages to pass resolutions requiring the elimination of openair construction and the placing of the wires in conduits.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, 88 14631470.]

EDWARD T. BARTLETT, J. This appeal is taken by permission of the Appellate Division, and the following question certified: "Has the plaintiff, the village of Carthage, the right and power to require and compel the defendant, the Central New York Telephone & Telegraph Company, to place the extension of its existing lines in the streets of said village in underground conduits ?”

A few only of the facts appearing by the affidavits in this case are material to a solution of the single question submitted for anSwer. It appears that the defendant company had for some years prior to the 1st day of January, 1905, operated a telephone system in the village of Carthage. On or about that date the defendant company made application to the board of trustees of the plaintiff for permission to extend its telephone lines in said village. After due consideration the board passed the following resolution: "Resolved, that the said telephone company be allowed to maintain an exchange in said village by means of conduits under the streets only, the location of which is to be under the direction of this board. And it is further resolved, that no more poles be erected by said company in said streets and that such company be required to remove all its poles erected since January 1, 1905.” The defendant was served with notice of this resolution, but continued to erect poles and string wires notwithstanding. Thereupon the village commenced this action in equity, praying for a permanent injunction enjoining the defendant from erecting any more poles in the streets and compelling the removal of those it had erected since January 1, 1903, after knowledge of the foregoing resolution of the board of trustees. A temporary injunction was granted by the county judge of Jefferson county, enjoining the defendant as prayed. The defendant moved to vacate the temporary injunction, which motion was granted. The learned judge at Special Term rested his decision, according to his opinion, on the lack of power in the village to compel the defendant to pla the wires of its proposed extended line underground; also that “when the village of Carthage assumes to require one telephone company to place its wires underground in the same streets in which another is permitted to use poles and open air construction, it does an act which cannot be justified, even

assuming the matter is within its jurisdic- , having granted these corporations the right tion." On appeal by the village to the Ap to construct and maintain its lines upon, pellate Division the order vacating the tem over or under any public roads, streets and porary injunction was reversed, with a divid highways, it sought to confer upon the boards ed court; Mr. Justice Nash writing the dis of trustees of villages the power to regulate senting opinion, and McLennan, P. J., concur the erection of telegraph, telephone or elecring.

tric light poles, or the stringing of wires, in, We agree with

with the conclusion of the over or upon the streets, etc. It is clear that dissenting opinion that it is preferable to dis the intention of the Legislature was to perpose of the matter upon the question of mit villages to regulate the erection of telright rather than that of an illegal dis egraph, telephone or electric light poles and crimination between the two competing com the stringing of wires on these poles. The panies operating existing plants in the same right to erect these poles and string the wir streets of the plaintiff village. The question is not derived from the village authorities, of law certified to this court as to whether but they are permitted to regulate the erecthe village has the power to compel the de tion of the same; that is to say, the location fendant to place the extension of its exist of the poles and the streets to be occupied ing lines in the streets in underground con are, doubtless, within the reasonable power duits is to be determined by the present state of the village to regulate. It is apparent of legislation bearing upon the subject. It that if the state should see fit to surrender its has long been the settled law of this state sovereignty in the premises and permit each that telegraph and telephone companies de municipality, through which a telegraph or rive the right to erect their poles and string telephone line passes, to determine whether their wires directly from the state. Trans wires should be strung upon poles or placed portation Corporations Law, Laws 1890, p. in conduits according to the varying judg. 1152, c. 566, art. 8, § 102, headed “Telegraph ments of the different local boards, it would and Telephone Corporations," reads in part work a great and radical change in the right as follows: “Construction

"Construction of Lines. Such of companies to construct and maintain corporation may erect, construct, and main their plants. As the law now stands the tain the necessary fixtures for its lines upon, company is at liberty to decide whether it over, or under any of the public roads, streets will go on, over or under a street, subject to and highways," etc. Our attention is called the right of the state to revoke its license. to certain general provisions of the charter of Opinions may differ as to which policy should the village of Carthage, which do not in prevail in view of the rapid increase of telterms refer to the subject under considera ephone companes and the disfigurement of tion, from which it is argued that it can be streets by the erection of a large number of implied that the Legislature has delegated to poles, each company placing its own; be the village the power to compel telegraph and this as it may, it is clear that no such power telephone companies to place their wires un as is claimed by the respondent is at present derground. We are of opinion that, while it vested in the villages of the state. is competent for the state to delegate its The order appealed from should be reverssovereign power to cities and villages in re ed, with costs in this court, and the order of gard to the construction, management, and the Special Term vacating the temporary incontrol of these companies, such surrender of junction affirmed. Question certified answersovereignty cannot be implied, but must rest ed in the negative. on express legislation containing a clear and unqualified grant of power.

CULLEN, C. J., and GRAY, O'BRIEN, It is further argued on behalf of the plain HISCOCK, and CHASE, JJ., concur, WERtiff village that the village law (Laws 1897, NER, J., not voting. p. 394, c. 414, § 89, subd. 9) is to be construed as conferring the power in question. It reads Ordered accordingly. as follows: "Poles and wires. To regulate the erection of telegraph, telephone, or electric light poles, or the stringing of wires, in,

(185 N. Y. 608) over or upon the streets or public grounds, or

ABEL v. BISCHOFF et al. upon, over or in front of any building or (Court of Appeals of New York.

June 19, buildings.” It is to be observed that the

1906.) Legislature when conferring upon these com On motion to amend remittitur. Denied. panies in the Transportation Corporations For former opinion, see 77 N. E. 1181, 185 Law the authority to construct and maintain

N. Y. the necessary fixtures for their lines, used the words “upon, over or under" any of the PER CURIAM. We think the meaning public roads, etc., while in the Village Law and effect of the decision heretofore rendered the language is “in, over or upon” the streets, by us is perfectly clear. The judgment of etc. This discrimination in the use of lan the Appellate Division was affirmed, with one guage is consistent with the language of the modification only, by which the plaintiff was section relied upon from the Transportation permitted, on taking title, to pay $105,000 of Corporations Law, $ 102. The Legislature the purchase money by a mortgage payable

4. SAME-CONTRIBUTORY NEGLIGENCE.

If a servant, in constructing a scaffold, used planks furnished to him by his master, and

four months from date of closing title, with interest at 5 per cent. In all other respects the plaintiff, as a condition for obtaining title, must comply with the terms of the judgment of the Appellate Division, which charge him with interest on the whole of the unpaid purchase money of $135,000 from May 4, 1903, and credit him with the amount of rents received, less the taxes and insurance thereon paid by defendants since said May 4, 1903.

The motion to amend the remittitur should be denied, with $10 costs.

, not chargeable with contributory negligence, precluding a recovery for injuries caused by the falling of the scaffold, in that he used such material which was in fact unsafe.

[Ed. Note.For cases in point, see vol. 34, Cent. Dig. Master and Servant, $$ 675–677.) 5. SAME-INSTRUCTIONS_REFUSAL.

Labor Law, Laws 1897, p. 467, c. 415, § 18, provides that a person employing another to perform labor shall not furnish, erect, or cause to be furnished or erected, for such labor any scaffolding which is unsafe or improper, and not so constructed as to give protection to the life or limb of the persons employed. In an action for injuries to a servant by the falling of a defective scaffold, plaintiff requested a charge that it made no difference in applying such statute to the case whether defendants themselves erected or caused the scaffold to be made, if it was made by their direction by any one else. Held, that such instruction was properly refused as too broad.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, HISCOCK, and CHASE, JJ., concur. GRAY and O'BRIEN, JJ., absent.

Motion denied.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James Madden against James Hughes and others. From an order of the Appellate Division (93 N. Y. Supp. 324, 104 App. Div. 101), unanimously affirming a judgment entered on a verdict in favor of plaintiff and denying a new trial, defendants appeal. Affirmed.

Edward W. Norris, for appellants. Frederick S. Martyn, for respondent,

(185 N. Y. 466)

MADDEN V. HUGHES et al. (Court of Appeals of New York. June 19,

1906.) 1. APPEAL-EXTENT OF REVIEW-EXCEPTIONS.

Where, at the conclusion of plaintiff's evidence in an action for injuries to a servant, defendants moved for a dismissal of the complaint on the ground that plaintiff had failed to show negligence on defendants' part or his own freedom from contributory negligence, but neither by request to charge, nor motion, was the court requested to hold that the scow in which plaintiff was working at the time of his injury was not a "structure," within Labor Law, Laws 1897, p. 467, c. 415, § 18, prohibiting a master from furnishing an unsafe scaffold for the performance of labor on any kind of a building or structure, or that the appliance plaintiff was using when injured was a 'scaffold” within such section, such questions could not be reviewed on appeal.

[Ed._Note.—For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 1079.] 2. SAME-CONTRIBUTORY NEGLIGENCE-SUFFICIENCY OF EVIDENCE-REVIEW BY COURT OF APPEALS.

Where an action for injuries to a 'servant was defended on the theory of contributory negligence, which issue was submitted to the jury and a verdict found thereon had been unanimously affirmed by the Appellate Division, the Court of Appeals has no power to consider whether there was evidence to sustain the verdict on such issue.

[Ed. Note.For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$ 4322, 4324.] 3. MASTER AND SERVANT-INJURIES TO SERVANT-ACTION-INSTRUCTIONS.

In an action for injuries to a servant by the falling of a scaffold, the court charged that the question in addition to plaintiff's negligence was whether defendant was negligent in furnishing plaintiff with a scaffold which was unsafe, improper, and unsuitable and did not afford protection to life or limb; that the defendants were absolutely commanded by the statute to supply workmen with "this sort of apparatus, it is their duty to do it. They have no excuse to offer and there are none which they can invoke." Held, that such instruction should be construed to mean that defendants had offered no evidence of any excuse, and therefore there was none that they could invoke before the jury, and was not, therefore, ground for reversal as charging that defendants were bound to supply an unsafe scaffold.

HAIGHT, J. This action was brought to recover damages for injuries sustained by the plaintiff on the 25th day of January, 1902, while in the employ of the defendants. At the time of the accident he was engaged in putting a beam in one of the pockets of a scow which the defendants were repairing. The scow was divided into different pockets, each of which was 28 feet wide across the top and 13 feet in length from bulkhead to bulkhead. The sides of the pocket sloped diagonally from the top of the scow towards the center at the bottom. In order to facilitate the placing of the beam in position near the top of the pockets, a scaffold was constructed out of two 3-inch planks, which were spliced by being nailed together and supported at either end by a rope looped ‘around the plank and then fastened to the bulkhead. While the plaintiff was standing upon this scaffold putting the beam into position, the plank broke, causing him to fall to the bottom of the pocket, about 8 feet below, causing the injuries for which he seeks to recover damages in this action. The trial resulted in a verdict for the plaintiff, and the judgment entered thereon has been unanimously affirmed by the Appellate Division.

It is now contended, on behalf of the defendants, that a scow, such as that upon which the plaintiff was engaged at the time of his injury, was not a "structure” within

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