the fact, if so found, that the conductor had | As soon as I let go, it started. I did not no knowledge that the plaintiff desired to have hold of anything when the car started. leave the train at that station. It may be I had no warning that the car was about to that the conductor did not have such knowl- start." The plaintiff had the right to edge, and that he did not see the plaintiff assume that he would have a reasonable when he left his seat; and, thus failing to opportunity to get off the train before it observe that any passenger was leaving the started; and it is not seen that his omission train, he may have deemed delay unneces- to retain his hold on the railing, if it were sary. The conductor may have been at the practicable to do so, at the moment he was rear end of the car, and it appears that no about to step from the car onto the platform one in the employ of the defendant was at of the station, could, under such circumthe front end of it. The fact that the con- stances, furnish any imputation of negligence ductor did not know that the plaintiff intend-on the part of the plaintiff. While the darked to leave, and did not see him leaving, the ness called for the exercise of caution on the car cannot furnish the defendant with an ex-part of the plaintiff, his statement was to the cuse for not giving the plaintiff a reasonable effect that he proceeded in the usual manner time to get from the train, unless the latter to get off. He sought to go down the steps was so situated as to conceal himself from provided for the purpose, which he would, observation. He was sitting on a seat in the as appears by his evidence, have safely accomcar designed for passengers until he started plished, if he had been permitted. His failto leave. He was entitled to time to get off; ure to seek the conductor, and inform him of and, if the injury was occasioned by reason the purpose to leave the train at that station, of the failure of the defendant to give him or his failure to see that his movement to do such time before the train was started, it was so was not observed by the conductor, furguilty of negligence. Such opportunity to nished no fact for the jury, for the reasons alight from a train is within the undertaking before given. The leading fact litigated assumed by a railroad company, and the safe- upon the trial was whether the plaintiff proty of travel requires the observance of that ceeded to alight from the train as soon as it duty. The fact that a passenger proceeds to stopped at the station, or delayed doing so leave a train at a station where it has stopped until it started. If he thereafter, and after ought, for the purpose of his protection, to be a reasonable opportunity to get up, remained known by the company, through its servants, in his seat, the conductor may have had the and therefore, so far as that is essential, it is right to assume that he did not intend to deemed chargeable with knowledge; and, if leave there. The court, upon that subject, the proper discharge of duty in that respect charged, to which there was no exception, requires more means of observation or pre- that "this whole case depends simply on one caution, it should be furnished. The defense question of fact. Did the passenger, as he cannot successfully rest upon the inference says, attempt to alight from the train as that the conductor was in a situation where soon as it was stopped? If he did, then there he could not, or did not, observe the purpose was no negligence upon his part, and the of the plaintiff to depart from the train. It defendants were to blame in not giving him is also urged that the circumstances were an opportunity to get off." And after thus such as to permit the finding, upon the plain- stating the evidence of the plaintiff, and its tiff's testimony, that he was not free from effect, and referring to that on the part of negligence. It is not claimed that the plain- the defendant in conflict with it, he added tiff did not proceed with reasonable diligence the portion of the charge first before mento alight, but it is insisted that the inference tioned. Although the question of negligence was permitted that he did not use reasonable is dependent upon facts which must go to care in doing so, upon the statement given by him of the circumstances. He, having the burden of proof to establish such care, is entitled to the benefit of no presumption in support of his diligence or caution. It was very dark. He says: "I took hold of the rail, and stepped down on the first step. Then I had my foot on the last step, and was going to step off; and the train started, and the jerk of the car knocked me over. * * There is a platform and two steps, and then from there off the car. Before the car started, I was off the platform. My right foot was on the last step, and my other foot on the other. My left foot was on the middle step of the platform, and my right foot on the last step. I was about to step off the car, on the platform. I let go, to step down. the jury, when any inferences may arise from the evidence either to support or defeat the charge, there may be a state of facts so unqualified as to justify the determination of the fact as matter of law. The facts as represented by the evidence of the plaintiff, if taken as true, furnished all the elements of fact requisite to the liability of the defendant, and no countervailing deductions could *reasonably arise from it. These views lead to the conclusion that the exception to the charge was not well taken. The question of the weight of evidence, arising upon the very decided conflict of it as to the essential facts, was disposed of in the court below, and is not the subject of consideration on this review. The judgment should be affirmed. All concur, except HAIGHT, J., not sitting. (117 N. Y. 378) In re McCOMB.1 (Court of Appeals of New York. Nov. 26, 1889.) WILLS-RIGHTS OF DEVISEES-EXONERATION. 1. Where testator has conferred upon his executors the power to sell land which he has devised, with the provision that the fund so arising shall be invested, and the principal and income applied by them for the use and benefit of the same persons to whom the land had been specifically devised, the court cannot treat the proceeds of a sale made under the power as legal assets in the hands of the executors, and apply them to the payment of testator's debts. 2. The provision of Code Civil Proc. N. Y. § 2724, requiring the executor to account for the proceeds of any of the testator's realty or devisable interest in realty sold pursuant to a power in the will, does not authorize the diversion of the proceeds from the purposes specified in the will. Appeal from supreme court, general term, second department. Alexander H. Van Cott, for appellants. Woodward & Buckley, (Sidney S. Harris, of counsel,) for respondents. FINCH, J. A bare statement of the facts of this case will show that grave injustice has been done to the rights of the infants who appeal, and that the statutory provisions supposed to be conclusive have been incorrectly interpreted. By his will the testator gave to his infant daughters, Lilly and Emma, respectively, specific parcels of real estate, which he identified and described, and which were incumbered by mortgages, the amount of which he named. He had already charged upon the same lands a lifeestate for his wife, to whom he had given all his personal property which should remain after the payment of debts, and a further right to use other real estate for a narrow and limited period. The provision for the wife was in lieu both of dower and distributive share, and the life-estate of the widow in the lands devised to the infant daughters was further burdened with their support and education. The testator had other children and possessed other lands. He devised to his son James the house and lot No. 87 Clermont avenue, Brooklyn, and the stable in rear of 85 Clermont avenue, for his life, with remainder to his issue. The will gave 25 lots in Suffolk county to William McComb, who was testator's brother-inlaw, and one of his executors. He devised to his daughter Catharine a life-estate in two houses in Prince street, with remainder to her issue; and to his daughter Eliza Smith a life-estate in three other houses on Prince street, with remainder to his other children. The will finally conferred upon the executors a power to sell all or any of the property devised, except that given to James and his issue, but subject to the consent and approval of the widow; the sum so arising to "be invested, and the income and principal applied by my executors for the use and benefit of the same persons to whom the said lands and the income therefrom, respectively, were Reversing 49 Hun, 609, mem. specifically devised and bequeathed." The personal estate was sufficient to pay all the debts of the testator, except one of $4,000 to one Baylis, which remains unpaid. The executors sold at public auction a part of the property devised to the infant daughters, all of that devised to Catharine and Eliza Smith, and received therefrom, after paying incumbrances and expenses, something over $11,000. The executors rendered an account, and the surrogate ordered the debt of Baylis to be paid out of the unexpended proceeds of the real estate, and that decree has been affirmed by the general term. accomplished. The son James and the execBy this process several things have been utor McComb, to whom valuable parcels of real estate were devised, have escaped thus far any contribution to the unpaid indebtedness, and the whole burden has been cast upon the wife and daughters. A discretionary power of sale for the benefit of devisees, and a direction to apply the proceeds to their use, is converted into a power of sale to pay debts, and the lands not charged by the will are so charged by the surrogate in an ordinary accounting. A trust fund, created as such by the direction of the testator, and required to be held by the executors as trustees precisely as if the land from which it arose had never been sold at all, has been turned into legal assets, and treated as if it had been the personal estate of the decedent. The doctrine of equitable conversion out and out, arising from an imperative command, and founded on a testator's intention to turn his land into money and dispose of it as such, is invoked as applicable to a case where the decedent devised land and not money, but gave a discretionary power, to be exercised for the benefit and advantage of the devisees, for the conversion of the land into an invested fund. A debt, which, in a proper proceeding, it might have been the duty of the surrogate to order paid by means of a mortgage or lease, is arbitrarily paid from the proceeds of a sale, without opportunity to the devisees to contest the claim thus enforced upon their lands. More of error or of wrong is seldom seen in one adjudication. The justification of the decree is rested mainly upon the provisions of the Code. It is said that section 2724 enumerates the cases in which the surrogate may compel a judicial settlement of the accounts of executors; that subdivision 4 gives such jurisdiction where the executor "nas sold or otherwise disposed of any of the decedent's real property, or devisable interest in real property, or the rents, profits, or proceeds thereof, pursuant to a power contained in the decedent's will where one year has elapsed since letters were issued to him;" and that under this provision the executor may be required to account as well for the proceeds of land sold as for the personal estate. All that is true, but something more is requisite to sustain the respondent's position. The Code must be found to require, in addition, that when he does so account for the proceeds of land sold the trustee or the court and of the surrogate is reversed, with costs may lay violent hands upon the trust fund, to the appellant against the executors of Bayand divert it from the purpose of its creation lis personally. All concur. WILLIAMS v. GUILE.1 (117 N. Y. 343) (Court of Appeals of New York. Nov. 26, 1889.) GIFTS-INTER VIVOS-CAUSA MORTIS. to his attorney, telling him to give it to her, in weeks he died from a third stroke of paralysis, case anything happened to him. In about six and the paper was delivered according to instructions. Held, that there was no gift inter vivos, as the donor had not relinquished control of his property.2 2. But it will be presumed that the gift was made under an apprehension of the recurrence of paralysis, and the gift will be upheld as a gift causa mortis.3 Appeal from supreme court, general term, fifth department. Action by Samuel B. Williams, administrator, to recover personal property of his intestate from Lucy A. Guile, and which was claimed by her as a gift. On trial the court directed a verdict for defendant, and from the judgment entered thereon plaintiff appealed to the general term, where the judgment was affirmed; from which he again appeals. Geo. F. Yeoman, for appellant. Edward Webster, for respondent. and the directions of the will. That the executor must account for proceeds of real estate turned into money, and whether the sale has been authorized by the will or commanded by the surrogate, the Code does declare, but it is very far from compelling a misappropriation of the fund in either event. fered two strokes of paralysis, executed an instru1. A donor 70 years of age, and who had sufIn this case the executor accounted under the ment in the form of a bill of sale of his life insurwill. That was for him and for the surro-ance policy to his niece, and delivered the paper gate the charter of authority and the warrant to be obeyed. The testator supposed his personal estate to be sufficient for the payment of his debts, and devised to his daughters land, and not money. He charged no dollar of debt upon that land, and furnished his creditors with no remedy against it. The sale he permitted was discretionary, and he impressed upon its proceeds the same beneficial uses which attached to the land. Equitably it remained land, and an unchanged devise. When the statute permits the land of an infant to be sold and turned into money under the order of the court, it is careful to provide that the fund shall be treated as real estate remaining unchanged, for the safety and benefit of all concerned. 3 Rev. St. (5th Ed.) p. 276, § 110. The statute but repeated the existing rule of equity as a measure of precaution. Forman v. Marsh, 11 N. Y. 544. Less than that is not to be said where the conversion is under a discretionary power, only to be exercised at all in the interest and for the benefit of the infant. This trust fund, therefore, never became legal assets, and could be accounted for only as the law of its creation required, until some proceeding paramount to the will, sovereign even over the intention and direction of the testator, called for an accounting under its authority and for its purposes. The authorities cited are in no respect to the contrary. In Glacius v. Fogel, 88 N. Y. 444, the entire real estate was devised to the executors, who were to divide and distribute the proceeds. The sales were for the estate, and all its purposes, and not for the sole benefit of devisees. In Hood v. Hood, 85 N. Y. 561, the real estate again was devised to the executors, in trust to sell and hold and distribute the proceeds as money. In Erwin v. Loper, 43 N. Y. 521, the power of sale given to the executors was general and unrestricted. The same thing was true of Kinnier v. Rogers, 42 N. Y. 531; and the court added that, since there was no ground for an inference that the testator intended to appropriate his land to the payment of debts, the power of sale could not be exercised for that purpose. To these cases should be added that of Russell v. Russell, 36 N. Y. 581, cited by the respondent, in which the power to divert a trust fund, resulting from an authority to sell "for the best interests" of certain legatees, was denied. We are satisfied that the creditor in this case has mistaken his remedy, and that the decree was erroneous. The order of the general term GRAY, J. This case presents a question whether a disposition of some personal property by the intestate, at a short time prior to his death, was valid, either as an executed gift inter vivos or as a gift causa mortis. The plaintiff, as administrator of the intestate donor, brought the action to recover back the subject of the gift from the defendant, on the ground that she had no valid title to it. Upon the facts as developed on the trial, the judge presiding thereat ordered a jury to find a verdict for the defendant, and the general term have affirmed his action. The case made showed that about six weeks before his death occurred the intestate executed an instrument in the form of a bill of sale to his niece, Mrs. Guile, (this respondent,) of a policy of insurance on his life. In the instrument was a clause empowering him to revoke the transfer at any time during his life. This instrument and the policy the intestate delivered to one Webster, who acted as his attorney in drawing the instrument. After the death occurred, Webster delivered the policy and assignment to Mrs. 1Affirming 46 Hun, 645. 2As to the requirements of a valid gift inter vivos, see Board v. Callihan, (W. Va.) 10 S. E. Rep. 382, and note. 3 Concerning what constitutes a valid gift causa mortis, see Appeal of Walsh, (Pa.) 15 Atl. Rep. 470, and note; Fearing v. Jones, (Mass.) 20 N. E. and note; Sanborn v. Sanborn, (N. H.) 18 Atl. Rep. Rep. 199; Drew v. Hagerty, (Me.) 17 Atl. Rep. 63, 233; Ridden v. Thrall, 7 N. Y. Supp. 822. be, given by Webster to Mrs. Guile at any time during the intestate's life. Guile, and she has collected its amount from | in Harris v. Clark, 3 N. Y. at page 113, "the the insurers. At the time of the delivery of contract must have been executed. The the policy, the intestate said to Webster that thing given must be put into the hands of if anything happened to him he should give the donee, or placed within his power, by deor hand it to her, (Mrs. Guile.) Webster livery of the means of obtaining it." Here, (who, with his son, gave the only evidence not only was the instrument purporting to in the case concerning the transaction) testi-assign to Mrs. Guile the property made revfied that the intestate "spoke about her being ocable by its terms, but the evidence of in his family, and doing so much for him. Webster, to whom the policy and instrument The fact was that I was to give of transfer were given in custoly, shows the policy and assignment to Mrs. Guile if that that instrument was not to take effect something happened to Mr. Andrus. *** in præsenti at all. The donor retained conMy understanding of the matter was that I trol over the property, for he reserved the was to deliver this in case of death or inca- right to revoke the gift of it at any time durpacity, or something of that kind. * * *ing his life; and it was not, and it could not They were placed in my hands to hand to her if anything happened to him. I was depository of the papers for Mrs. Guile, and should give them to no one else." The son corroborates the father's testimony as to his instructions upon the delivery of the policy. It appears that, though the intestate looked well at the time of the transaction, he had already had two strokes of paralysis, and from the third stroke, about six weeks later, he lingered a few days, in sickness, until death came. Now, upon these facts, opinions may differ as to what was the legal effect of the act of the deceased; as to whether there had been a valid transfer or gift to Mrs. Guile, as the general term have thought, or whether there was a gift in anticipation of the death of the donor from an impending peril to his life. But I do not think there was any room for opposite inferences as to the intention of the donor. The facts were undisputed, and not conflicting, and they evidenced an unmistakable and clear intent that Mrs. Guile should have the benefit of the policy, unless the gift was revoked during his life. In order that a case should be submitted to a determination by the jury, it must present the possibility of different inferences being drawn from the proofs. But where, on undisputed facts, the conclusion to be arrived at is as to the legal effect, there is nothing for the jury to pass upon, and a verdict is properly directed on the legal construction given by the trial judge. A test as to the propriety of refusing to submit a question to the jury is whether their verdict could be set aside as contrary to evidence. Cagger v. Lansing, 64 N. Y. 417, 427. In this case, I think the intention of the deceased in this transaction to have been perfectly clear. I do not agree with the opinion of the court at general term, that there was a complete delivery to Mrs. Guile, and hence a valid executed gift; but I think there was a valid gift causa mortis. The elements which go to make up a valid executed gift were incomplete here. There was absent the essential feature of such a delivery as divested the donor of all possession and dominion over the subject of the gift. If the present right to the property is not parted with, so as to vest the title to it in the donee, there is no valid executed gift. Young v. Young, 80 N. Y. 430; Jackson v. Railroad Co., 88 N. Y. 520. As RUGGLES, J., said I think that the court below, in holding that there was an executed gift or sale, did not give due weight to the fact that the gift was not in præsenti. No present possession or dominion did or could pass to the donee, and the absence of such a feature precludes us from deeming the gift to have been complete by delivery. But there was sufficient in the case, as made, to establish a gift causa mortis. Such a gift Judge Story describes as amphibious,-between a gift inter vivos and a legacy. Eq. Jur. § 606a. He says it differs from a gift inter vivos in several respects, in which it resembles a legacy, and he mentions, as one, that "it is ambulatory, incomplete, and revocable during the donor's life-time.” And LEACH, V. C., in Gardner v. Parker, 3 Madd. 184, said that wherever a gift is in prospect of death there is an implied condition that it is to be held only in the happening of that event. The distinction between such a gift and any other is that, though delivery is an essential feature in each, in the former that peculiar character of revocability in heres during the donor's life. COTTENHAM, L. C., said, in Edwards v. Jones, 1 Mylne & C. 226: "A party making donatio mortis causa does not part with the whole interest, save only in a certain event, and it is of the essence of such a gift that it shall not otherwise take effect. A donatio mortis causa leaves the whole title in the donor, unless the event occurs which is to divest him." Judge Story said of such gifts (Eq. Jur. § 607a) that the courts have "not considered the interest as completely vested by the gift, but that it is so vested in the donee that the donee has a right to call on a court of equity for its aid." The title of the donee only becomes absolute at the donor's death, when, by relation, it is deemed to take effect from the time of the delivery. 1 Williams, Ex'rs, 552. Until the donor's death the condition is implied that he may always revoke it, and, in the case of an illness, if he lives, the thing shall be restored to him. It is not necessary that the donor should declare the condition. The presence, therefore, in this instrument of transfer here, of a clause giving power to revoke, indicates nothing more than an expression of what was implied in the law in a gift causa mortis. they used reasonable diligence is supported by eviseventh day after breaking bulk, a finding that dence showing that a Sunday and one holiday had intervened, and that one or two of the other days had been rainy. tion of the cargo unloaded the first day by an in2. An examination and acceptance of the porspector, who examined it as it was taken from the boat, does not constitute an acceptance of the resi due. Appeal from superior court of Buffalo, general term. G. W. Bowen, for appellants. James M. Humphrey, for respondent. But this transaction possessed the addi- | arrival, but do not continue the work until the tional distinctive feature, required to be present to constitute a gift causa mortis, of its having been made when the donor must be deemed to have had his death in view, as the possible result of an existing disorder. It is not necessary that the donor should have been in extremis; only that his death, when it occurred, should be from the disorder which afflicted him, and menaced his life. Grymes v. Hone, 49 N. Y. at page 20. The rule of law, in such cases of gifts made in prospect of death, demands, for their validity, that the proof shall show the existence of a bodily disorder or of an illness which imperils the donor's life, and which eventually terminates it. But that he should be confined to his bed, or his room, or that he should die within a certain limited time, are not essential circumstances to support such a gift. It is a matter within the experience and common knowledge of all, and one requiring no evidence to show, that paralysis is the symptom of a disease which does terminate human life. Its strokes are known to cause to the victim a loss of bodily functions or senses, and point to the existence of some grave ailment of the bodily system. It is quite a matter of common supposition or belief that the third stroke is followed by death. I think that we are bound to presume that, when death has occurred from disease indicated by paralysis, a transaction such as we have here, and which took place after the individual had been admonished by two paralytic strokes, was conducted with a view to death. It is unreasonable to say that the donor, in so acting, was not under the apprehension of a recurrence of the paralysis. We see him, at the age of 70 years, without wife or children, after having been twice stricken down with paralysis, delivering to his lawyer, Webster, a piece of property, with the instruction that if anything happened to him he should deliver it to a niece who had lived with him. This presents a state of facts which, in my opinion, permits but of one iegal conclusion. It was not a gift inter vivos, which was sought and effected, but a gift causa mortis, which at common law served as a description of a revocable gift, and in the civil law partook of the nature of a legacy. The very insertion by the intestate, in the instrument of assignment, of the power to revoke it, emphasizes his otherwise evident intention of making a gift to his niece in the contingency of the more or less near approach of death. I see no error committed upon the trial which calls for a reversal at our hands, and I think the judgment appealed from, for the reasons stated, should be aflirmed, with costs. All concur. HAIGHT, J. This action was brought to recover damages alleged to have been sustained by reason of a cargo of malt becoming damp and wet. The defendants were common carriers of freight upon the Erie canal and Hudson river, and as such owned and ran the canal-boat W. W. Beebe. On the 16th day of June, 1882, they received from the plaintiff 13,000 bushels of Canada barley malt, in good order, to be transported to the city of New York. Thereafter, and on the 29th day of June, the cargo arrived, and notice was given to the consignees of such arrival, who immediately, and on the same day, commenced to unload the same, taking out 2,400 bushels. At the usual hour the men stopped work, and did not appear again to continue the unloading of the cargo until the 6th day of July, being the seventh day after breaking bulk. It was then found that the malt had been injured by water, and the consignees refused to receive it. The bill of lading provided that the consignees should have five week-days, regardless of weather, in which to discharge the cargo, without liability for demurrage. In discharging the cargo the malt had to be shoveled into bags, and taken and carted away. Upon the trial questions arose as to whether the grain was received in good order, and as to whether it was damaged upon the voyage or after it arrived in New York,-all of which we must regard as settled by the verdict of the jury. In submitting the case the court was requested by the defendant to charge that "if the jury should find that the earriers offered to deliver the cargo after its arrival in New York, and, receiving instructions as to its disposal, proceeded in pursuance thereof to a place designated, and commenced to discharge the cargo, then the mere liability as common carrier ceased after a reasonable time had elapsed to unload." This request was refused, under the circumstances of the case, and an exception was taken. The court had instructed the jury that the consignees were entitled to a reasonable time in which to discharge the cargo, and that the jury were the judges as to what was a reasonable time, which must be determined under all of the circumstances Divis-sible for the cargo until it was delivered in of the case; that the defendants were responsome form or another; that the mere putting of it at the disposal of the plaintiff's agent to take out the cargo did not relieve the defend 1. Where the consignees of a cargo of malt unload part of it the day they receive notice of its v.22N.E.no.25-68 |