(108 A.)

disposition. The attempted disposal of the unused remainder was held repugnant to the estate first granted, and so must be rejected. Here the estate granted to Mrs. Eldridge is expressly limited to her natural life, with remainder over to the benevolent societies, if she leaves no surviving children. The power to use so much of the estate as may be necessary for her support and comfort is consistent with the estate granted. The appellant contends that the word "comfort" is synonymous with "benefit" as used in Stowell v. Hastings; but it makes very little difference whether the expression "support and comfort" signifies anything more than comfortable support. In any event the intention of the testator to create merely a life estate in Mrs. Eldridge is manifest, and the power of disposal is limited to so much of the principal as should be necessary for her support and comfort, and not absolute and unlimited as in that case. These facts render the cases clearly distinguishable. The case at bar in its essential features is very like Parks' Adm'r v. American Home Missionary Society, 62 Vt. 19, 20 Atl. 107, where a will giving the testator's wife the use of his entire estate during her lifetime, "and so much of the principal as she may see fit to use for her necessary and comfortable support, and for charitable and benevolent purposes," was held to create a life estate and not a fee. It is in line with Morse v. Stoddard's Estate, 90 Vt. 479, 98 Atl. 991. In re Keniston's Will, 73 Vt. 75, 50 Atl. 558, and other cases there cited and reviewed.

that the appellant seeks to have drawn from the court's statement that "the only evidence of payment to Emma C. Eldridge is her signed statement hereinbefore set forth." The court evidently thought it worthy of notice in passing that the only evidence offered in support of the tardy claim of payment to Mrs. Eldridge was her unsworn statement in the form of a receipt. Viewed in this light, there is ample warrant for the statement, and it is consistent with the findings and judgment. The fact that Mrs. Eldridge signed the writing acknowledging payment to her by Mr. Lucia as trustee would not of its own force exonorate his estate. There were other interests to be protected, and the fact of payment was a litigated question. The appellant failed to secure the necessary finding, at best a dubious undertaking in view of the attending circumstances.

These views result in overruling appellant's exceptions, and make it unnecessary to consider the appellee's contention that her claims are barred by the decree of the probate court of March 4, 1915, set out in the findings.

Judgment affirmed, and ordered certified to the probate court.

(93 Vt. 480)

STEVENS v. BOWKER. (No. 174.) (Supreme Court of Vermont. Windsor. Nov. 8, 1919.)

[2] We hold that Mrs. Eldridge took a life estate in the residue and not a fee. This 1. APPEAL AND ERROR 631-RULE OF COURT

AS TO PRINTING NOT ABROGATED BY ORDER
OF LOWER COURT.

An order of the trial court directing that certain motions, affidavits, etc., referred to in the exceptions, need not be printed provided copies are furnished the Supreme Court on hearing, does not relieve the excepting party from compliance with the rules of the Supreme

Court.

2. PROCESS 157-DEFECTS NOT APPARENT OF RECORD as ground OF MOTION TO QUASH.

disposes of the appellant's main contention. But she claims that, if the will did not give Mrs. Eldridge an absolute estate in fee, when the trustee has turned over all of the principal and the same has been received by Mrs. Eldridge as necessary for her support and comfort, the trust has been fulfilled, and is thereby terminated. It is a sufficient answer to this claim to say that it is unsupported by the findings. It is unnecessary to consider how it would be if the court had found that the trustee had in good faith paid the principal of the fund to Mrs. Eldridge as necessary for her support and comfort. With this claim squarely before it, the court found in effect that at the very close of Mr. Lucia's incumbency of the trusteeship Mrs. Eldridge was attempting to have the whole or some part of the fund turned over to her as necessary for her sup-3. APPEAL AND ERROR 704(2)-EXCEPTION port, and secured the order to that end already referred to, which order remains unWhere the evidence is not before the Sucomplied with. The express finding that the preme Court, defendant's exception to the retrust fund remains invested in the mortgage fusal of the trial court to find in accordance deed of trust, followed by the judgment with certain requests presents nothing for reagainst the estate, negatives the inference view.

The defects in the capias that it was signed in blank, and the names of the surety for costs and the person to serve the writ were inserted without knowledge or authority of the magistrate who signed it, cannot be taken advantage of by motion to abate the writ, which challenges only defects apparent of record; as defendant must have resorted to proof to establish his claims, they could be presented only by plea upon which an issue could be formed.

TO REFUSAL TO FIND PRESENTS NOTHING IN
ABSENCE OF EVIDENCE.

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

4. APPEAL AND ERROR

JUDGMENT NOT STATING GROUNDS NOT RE

VIEWABLE.

273(3)-MOTION FOR | motion for leave to withdraw a general appearance and to appear specially for the purpose of moving to dismiss the action because the writ was not legally served and because it issued without security to the defendant by way of recognizance, as required by law; the second, a motion to dismiss the action because the writ was not legally 694(2)—ABSENCE OF served; the third, a motion to abate the writ

Where at the close of evidence defendant
moved for judgment, but stated no grounds of
motion, under an exception to its overruling he
cannot rely on the claim of want of certain evi-
dence, which claim was not made below.
5. Appeal and ERROR

EVIDENCE AS LIMITING REVIEW. OF MOTION
FOR JUDGMENT.

In the absence of evidence before the Supreme Court, defendant cannot rely on the claim of want of certain evidence in support of his motion for judgment at the close of the evidence.

Exceptions from Hartford Municipal Court; Arthur G. Witham, Judge.

Action of tort by Roland E. Stevens against George Bowker. Judgment for plaintiff, and defendant excepts. Affirmed.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ.

Roland E. Stevens, of White River Junction, pro se.

for want of recognizance as required by law; and, the fourth, a motion by the bail on the writ that the writ abate for reasons like those stated in the second and third motions, and that the bail be discharged from liability.

[2] The court did not err in overruling the several motions. The writ, which issued as a capias, was in all respects regular on its face. It was served by arresting the body of the defendant. The service was by an indifferent person, duly authorized so far as the writ discloses. One Jennie Hutchins became bail by indorsing the writ as such. On the return day of the writ the defendant entered a general appearance. The cause was continued from time to time until it had

Hugh Moore, of White River Junction, for been in court for more than six months. On

defendant.

TAYLOR, J. This is an action of tort

brought to the Hartford municipal court for the willful and malicious injury of premises owned by the plaintiff and occupied by the defendant as a tenant. The plaintiff had judgment on the facts found by the court, and the defendant brings up exceptions.

the eve of the trial the defendant filed, among others, the motions involved here supported by affidavits. He relied upon the claim that the writ was signed in blank and the names of the surety for costs and the person to serve the writ were inserted without the knowledge or authority of the magistrate contends, these are not defects of a formal who signed the writ. If, as the defendant character such as would be waived by a general appearance, in any event they cannot be taken advantage of by motion, which challenges only defects apparent of record. As he must resort to extrinsic proof to establish his claims, they could only be presented by a plea upon which an issue could be

Vt. 465, 58 Am. Dec. 181; Cunningham v.
Caldbeck, 63 Vt. 91, 20 Atl. 974; see also
Tracy v. Grand Trunk Ry. Co., 76 Vt. 313,
318, 57 Atl. 104, and cases there cited.

[1] The cause was submitted without argument. Upon inspection of the papers, it is discovered that the copies furnished the court do not conform in several particulars to our rule respecting the preparation of the case. See Rule 5 of Supreme Court (99 Atl. vii), None of the papers are printed and leave was not asked to substitute typewrit- formed. Conn. & Pass. R. R. v. Bailey, 24 ten copies. Moreover, the copies furnished do not contain much that is necessary to present the questions raised. The exceptions refer to certain motions, affidavits, requests for findings, and the findings and rulings of the court, which the judge directs need not be printed provided copies thereof are furnished this court on the hearing. But such an order does not relieve the excepting party from compliance with our rules. The trial court has no authority to set aside, or take a case out of, the rules of this court. While we do not in this case dismiss the exceptions because not properly presented, we deem it advisable to make these observations for the future guidance of litigants.

The defendant urges that the court erred in overruling certain motions designated by Nos. 1 to 4, inclusive. It appears from an inspection of the files that the first was a

[3] The defendant excepted to the refusal of the court to find in accordance with certain requests; but, as the evidence is not before us, the exception presents nothing for review. See Landon v. Hunt, 82 Vt. 322, 73 Atl. 865; Fraser v. Nerney, 89 Vt. 257, 95 Atl. 501; Vermont Marble Co. v. Eastman, · 91 Vt. 425, 440, 101 Atl. 151.

[4, 5] At the close of the evidence the defendant moved for judgment, but stated no grounds of the motion. Under an exception to the overruling of his motion, he relies upon the claim of want of certain evidence; but this claim is not available, not only because not made below, but for the further reason that the evidence is not here.

(108 A.)

Judgment affirmed.

(265 Pa. 120)

MUSCARELLA v. NEW YORK CENT.
R. CO.

The defendant argues a motion in arrest | path on the tracks that had been there for of judgment, but there is nothing in the rec- from 8 to 12 years; that it could be seen plain ord or files to show that any such motion enough until the stone ballast was put in; that some foot travelers went to the Nickel Plate was made. toolhouse over this path, some to the grape juice plant, and some to the New York Central toolhouse; that 40 or 50 people at a time went through, morning, noon, and night; that there was no objection made; that after the stone ballast was put in the path showed plainly up to the stone on both sides of the tracks, and that the paths on each side of the tracks are directly across one from the other; that most people who live in the lower end of the town on the west side go over this path, and that they went over it morning and night; that there was a pathway all the way across before the ballast was put in; that stone or cinders would not show a path as gravel or dirt would, but that before the stone and cinders were put in there was a definite path crossing the tracks; and that when snow was on the ground there was a definite path at this place * The evi

(Supreme Court of Pennsylvania. May 21, 1919.)

1. RAILROADS

350(2)-PERMISSIVE CHARACTER OF CROSSING QUESTION FOR JURY.

In an action for death at a crossing, the question whether it was a permissive crossing or not held to be one of fact for the jury under the evidence.

2. RAILROADS 350(26)-CONTRIBUTORY NEG-all the way over the tracks.

LIGENCE AT CROSSING QUESTION FOR JURY.

The contributory negligence of one killed by a train at a crossing was for the jury, where there was evidence that he stopped and looked and heard no warning, that it was a little dark, and that the train could not be seen more than 50 feet.

Appeal from Court of Common Pleas, Erie County.

Trespass by Mary Muscarella, now Scayage, against the New York Central Railroad Company, to recover damages for death of plaintiff's husband. Verdict and judgment for plaintiff for $5,000, and defendant appeals. Affirmed.

Argued before BROWN, C. J., and FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

W. Pitt Gifford, of Erie, for appellant. John B. Brooks and W. Louis Schlesinger, both of Erie, for appellee.

PER CURIAM. The husband of the plaintiff was struck by a train of the defendant when he was crossing one of its tracks, and was instantly killed. The jury found that he was struck at a permissive crossing and, on this appeal by the defendant company from the judgment recovered against it, two questions are raised: (1) Was the evidence in the case sufficient to establish a permissive crossing? (2) Was the plaintiff's decedent guilty of contributory negligence?

[1, 2] That each question was for the jury clearly appears from the following extracts from the opinion of the learned court below discharging the rules for a new trial and for judgment non obstante veredicto:

"The evidence supporting the contention that there was a permissive crossing, briefly summarized, was to the effect: That everybody goes across there; that there was a beaten

dence relied upon to rebut the charge of contributory negligence on the part of the deceased was to the effect that the deceased stopped and looked before he committed himself to the crossing; that there was no warning given; that at the time it was a little dark (that the sun did not rise till 7:31, and the accident happened at 7:02 a. m.), foggy, and beginning to rain; that the train could not be seen further than 50 feet; that the wind was blowing; that the train was not making much noise, 'running quietly'; and that the deceased was struck in half a second-snap of a finger-after the train was visible."

The assignment of error is overruled and the judgment is affirmed.

(265 Pa. 128)

BEETEM et al. v. CARLISLE LIGHT,
HEAT & POWER CO.
(Supreme Court of Pennsylvania. May 21,
1919.)

APPEAL AND ERROR 863-STATUS QUO AFT-
ER PRELIMINARY INJUNCTION CONTINUED TO
FINAL HEARING.

The established practice of the appellate court on an appeal from the award or refusal of a preliminary injunction is to decline to consider the merits of the case, and when it appears that there was apparently sufficient ground for the lower court's action, the status quo will not be disturbed, but will be continued to final hearing.

Appeal from Court of Common Pleas, Cumberland County.

Bill in equity by Edward C. Beetem and C. Gilbert Beetem, trading as E. C. Beetem & Son, against the Carlisle Light, Heat & Power Company, to restrain defendant from cutting off steam, in which the record showed that the plaintiffs had refused to pay a bill

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

for steam under a change of rates which they claimed to be excessive. A preliminary injunction awarded was thereafter dissolved, and plaintiffs appeal. Appeal dismissed. Argued before BROWN, C. J., and MOSCHZISKER, WALLING, SIMPSON, and KEPHART, JJ.

William Draper Lewis, of Mauch Chunk, and Joseph P. McKeehan, of Carlisle, for appellants.

E. M. Biddle, Jr., of Philadelphia, and Caleb S. Brinton, of Carlisle, for appellee.

PER CURIAM. Our established practice on an appeal from the award or refusal of a preliminary injunction is to decline to consider the merits of the case, and, when it appears that there was apparently sufficient ground for the action of the court below, the status quo will not be disturbed, but will be continued to final hearing. Gemmell et al. v. continued to final hearing. Gemmell et al. V. Fox et al., 241 Pa. 146, 88 Atl. 426; Hoffman Fox et al., 241 Pa. 146, 88 Atl. 426; Hoffman v. Howell, 242 Pa. 112, 88 Atl. 877; Bixler v. Swartz, 257 Pa. 300, 101 Atl. 647. This appeal comes within the rule, and it is therefore dismissed, at the costs of the appellants.

(265 Pa. 97)

COMMONWEALTH v. TOMPKINS. (Supreme Court of Pennsylvania. May 21, 1919.)

1. CRIMINAL LAW ~~765—INSTRUCTION ON

DEFENSE OF INSANITY.

ty, but the plea was unavailing, and he was found guilty of murder of the first degree. If he knew what he did at the time he committed the homicide, his offense was rank; but, however atrocious it may have been, the duty rested upon the trial judge to instruct the jury dispassionately as to the settled law relating to the plea of insanity. This he did briefly in one portion of his charge, but in other parts of it he held up at length to judicial ridicule the plea made for the prisoner. As a part of his instruction to the jury he read to them the following extracts from an opinion of a lower court refusing a new trial to one alleged to have been insane. at the time he committed the offenses of which the jury found him guilty:

"He is one of a class vulgarly called cranks, who are not bad enough for an insane asylum, and infest society with their dangerous tendencies until they commit some crime, and then sympathy is sought for them by the aid of medical experts to show that they were insane on some particular subject, and thus not morally accountable. The law, differing from the medi. cal theories, was never intended to protect such people. It is said: What difference does it make if they are acquitted on the ground of insanity; they are sent to an insane hospital, and cannot be removed but by an order of the court? This is not the way to administer law-the guilty should be punished-and, besides, the actual operation of such a system has been very demoralizing, for we see the same witnesses, experts and others, very shortly after the person is incarcerated in the insane asylum, upon petition, showing by their testimony a restoration to health and mental soundness in an extraordinarily short space of time, and they are thus other lives. Nor can a judge stop this, for upon set free to again prey upon society and endanger

Where insanity was the defense in a murder trial, it was reversible error for the trial judge to hold up the plea to judicial ridicule, by stat-proof of sanity he will be compelled to liberate. ing to jury in instructions that the prisoner was "of a class vulgarly called cranks," and that "those beings who live with these unsettled minds, who are not taken care of by friends, relatives, or the state, when caught in the act of crime, must be punished."

Those beings, who live with these unsettled minds, who are not taken care of by friends, relatives, or the state, when caught in the act their boldness and badness, so that, instead of of crime must be punished, or else they grow in of crime must be punished, or else they grow in insane delusions, they become, in the language

2. CRIMINAL LAW 48-INSANITY AS A DE- of the old common-law indictments, 'moved and

FENSE.

seduced by the instigation of the devil' to the

By the common law and by the Penal Code, commission of crime. Many learned and great insanity of an accused is a defense.

men have been subjects of insane delusions, and that, too, while occupying high political and Appeal from Court of Oyer and Terminer, social positions; but it was never dreamed that, Cambria County.

in other respects, they were not perfectly sane, and even accountable for the delusions, for when George Tompkins was convicted of mur-they felt they were beyond law they would inder in the first degree, and from the judg- dulge their caprices. When they felt the presment and sentence passed, he appeals. Re-ence of law, then these delusions would be reversed, with a venire facias de novo.

strained. So a public conviction of one of the class of the prisoner is of considerable force as Argued before BROWN, C. J., and MOSCH- a restraining element upon such persons. ExZISKER, FRAZER, SIMPSON, and KEP-perience shows that, following an acquittal of HART, JJ. some notorious criminal upon the ground of insanity, numbers of like deeds are committed,

John E. Evans and John H. McCann, both and the cranks exult." of Ebensburg, for appellant.

[2] The utterances in the charge brought BROWN, C. J. [1] The appellant was de- to our attention by the second assignment of fended on his trial on the ground of insani-error are greatly to be regretted. The trial