The occupants of the Weidlich automobile (proaching this crossing, nothing to indicate up to a point about 110 feet from the cross- whether he was then dead or alive, asleep or ing could not have seen the approaching awake. train. And at 110 feet the trolley car and the automobile would have completely obstructed the view, and this obstruction would have continued up to a point 20 feet from the crossing.

When the Weidlich automobile was within 20 feet of the crossing it was traveling at the rate of 15 miles an hour, while the train was traveling at the rate of 25 miles an hour, and was about 100 feet from this crossing.

James W. Carpenter and Paul Somers, both of New Haven, for appellant. William H. Comley, Jr., of Bridgeport, for appellee.

WHEELER, J. (after stating the facts as above). The corrections of the finding made the subject of the appeal are without merit. Paragraph 15 of the statement of facts, claimed in evidence by plaintiff, may be supported upon the gate tender's statement of what he saw and heard and did.

Paragraph 23, as to the view of the approaching train, is supported by inferences which may reasonably be drawn from the testimony of the engineer, Burns.

Paragraph 6, as to the freedom from negligence of the plaintiff's intestate, was a conclusion which the trier might reasonably have made from all the facts and circumstances in the case.

The intestate was seen a few moments be fore the accident, and a short distance from the crossing, seated on the rear seat of the closed automobile. If he had been asleep, or reading a book, or engrossed in talk with another than the driver, or in deep thought, he would not have been, because of this, neg. ligent.

Ordinary experience instances this as not infrequently the conduct of the ordinarily prudent person when riding as a guest or the rear seat of an automobile.

excuse, or justify his course.
No duty was upon the intestate to explain,

[4] There is no presumption, the defendants say, that this intestate continued in life from the time he was seen alive just before the accident to the time of the collision. If it may be assumed as a self-evident result of human reason and experience that because this intestate was alive shortly before the collision the jury might have found that he was alive at the time of the collision, no further proof of this fact is required. This presumption of fact will then supply the place of evidence in setting up something which must be overcome by proof. Ward v. Metropolitan Life Ins. Co., 66 Conn. 227, 239, 33 Atl. 902, 50 Am. St. Rep. 80; Sturdevant's Appeal from Probate, 71 Conn. 392, 400, 42 Atl. 70.

Life will be presumed to continue for such period of time as will be reasonable under.

The corrections asked did not justify the the circumstances, depending upon the length printing of the evidence.

The motion to set aside the verdict could not prevail if the finding of the intestate's due care stands.

The failure of the gate tender to lower the gates or to give adequate warning of the approach of the train amply justified a finding of negligence on the part of the gate tender. [1] The intestate was a guest in the automobile; he had no control over the driver, and no authority to direct him. He was not responsible for the negligence of the driver of the automobile, had there been such. Sampson v. Wilson, 89 Conn. 707, 96 Atl. 163. [2] The intestate must exercise due care, but this is the care that may be reasonably inferred from the circumstances.

The guest on the rear seat of the automobile owes a very limited degree of care. He is not expected to direct the driver, nor to keep a lookout. Dangers or threatened dangers known to him he must warn the driver of, and for his failure to do so be chargeable with having proximately contributed to the accident, unless a reasonable person under all the circumstances would not have given the warning.

[3] The defendant argues at length that the plaintiff offered no proof to show that his intestate used any care whatsoever in ap

of time intervening, the age, physical condition, and all the surrounding circumstances. Chamberlayne on Evidence, § 1034.

In each case it is a presumption of fact subject to be controlled by whatever facts and circumstances may be in evidence. Hyde Park v. Canton, 130 Mass. 505, 509; Chamberlayne on Evidence, vol. 4, § 1042. "If the lapse of time was comparatively shot, it would, in ordinary cases, in the absence of any evidence to the contrary, be usually deemed satisfactory." State v. Plym, 43 Minn. 382, 388, 45 N. W. 848; Chicago, etc., R. Co. v. Keegan, 185 Ill. 70, 56 N. E. 1088.

Since the lapse of time when Mr. Weidlich was last seen alive and the collision was so short, the jury were warranted, in the absence of other facts and circumstances to the contrary, in presuming that the life of the intestate continued to the time of the collision, and this presumption supplied the place of evidence.

[5] There was evidence to go the jury on the due care of the intestate. It arose out of the circumstances of the case and the necessary inference arising from these.

"The nature of the accident makes it improbable, according to common experience, that negligence on the plaintiff's

[6] (1) "That the existence of due care in any case may be inferred from the facts and circumstances in evidence." This and the entire charge upon this subject accords with the frequent expression of our court. The real criticism is in the court having submitted to the jury the issue of due care, and we have already disposed of this as groundless. This criticism is based upon the requests to charge, and not upon the charge as made, which is the basis of the errors specifically pressed in the brief of appellant.

"The plaintiff claims to have proved that the deceased was on the back seat of the automobile; that he was not driving, and had no control this to be the fact, then he is in no wise chargeover the operation of the car. If the jury finds able with any failure of the driver of the automobile to use reasonable care. But before the plaintiff can recover in this action you must be satisfied that the decased has omitted nothing in looking or listening for himself that a careful and prudent man should do under similar circumstances."

[7] (a) Proof having been offered that the intestate was on the back seat at a time shortly before the accident, the presumption that he so continued would follow in the absence of evidence to the contrary, just as the

The defendant complains of this charge because there is no evidence that: (a) The intestate was seated on the rear seat; (b) that he lived up to the standard of the con(2) That the one question presented by the duct of the reasonable man; and (c) that the plaintiff was that the gates "were not main-charge did not explain clearly the meaning tained and operated with ordinary care and of "imputed negligence." prudence at this time." Both the question of maintenance and operation the appellant claims were submitted to the jury, although only that of operation was raised in the pleadings, and that this must have been harmful, since it was in evidence that the presumption of life continued. But in addisoutheast gate was not in working condition. The trial court in its charge interpreted the tion as we understand the record, the plaincomplaint to limit the negligence charged tiff offered evidence from which the jury to the operation, and not to the maintenance might have found this as a fact from the loof the gates, and expressly excluded from cation of the body of the intestate after the consideration of the jury any negligence the accident, and from the fact that the other than that complained of, and especial-front seats were occupied before the accident ly that arising out of the condition of the by the driver and by a dog. gates. A reading of the charge fully satisfies us that the jury could not have failed to understand this as the single ground of negligence charged in connection with the gates. We think it entirely clear that the court used the terms "maintained and operated" in this portion of the charge complained of in the sense of operated and without reference to the physical condition of the gates.

(3) Error is predicated of the charge:

(b) We have already said all that we deem necessary to indicate that the question of due care was properly left to the jury.

[8] (c) The subject of imputed negligence was presented to the jury in the manner approved of by our decisions, and with clearness and sufficient completeness. Sampson v. Wilson, 89 Conn. 707, 96 Atl. 163. There is no error.

The other judges concurred.

DE LADSON v. CRAWFORD.

CARTWRIGHT et al. v. SAME.

(Supreme Court of Errors of Connecticut. April 16, 1919.)

1. COURTS 2004 - JURISDICTION OF PROBATE COURTS-TRUSTS.

the corpus of an estate by a beneficiary who is meanwhile paid the income and who is under no incapacity such as minority or mental incompetency.

8. TRUSTS 136-"DRY TRUSTS" - PAYING INCOME ᎢᎤ BENEFICIARY VESTED WITH RIGHT TO CORPUS.

A trust by which the trustee is to retain the corpus of an estate for ten years and pay tes-ceive the corpus of the estate, is not a "dry" or the income to a beneficiary, who is then to resimple trust terminable at the call of the ben

The jurisdiction of probate courts over tamentary trusts is very limited, exclusively statutory, and largely of recent origin.

2. TRUSTS 298-AccoUNTING OF TRUSTEEJURISDICTION OF PROBATE COURTS.

The express authority to settle accounts of testamentary trustees and to make orders necessary and proper for the due execution of such trusts, conferred by Laws 1881, c. 36, Laws 1911, c. 125, Gen. St. 1918, § 5045, carries with it implied power to do what is necessary to the exercise of the jurisdiction expressly conferred.

3. COURTS 2004-CONSTRUCTION OF TESTAMENTARY TRUSTS-JURISDICTION OF PROBATE COURTS.

A probate court may construe a testamentary trust so far as is necessary to enforce the execution of it, but it may not construe a trust to ascertain whether it is void or whether it should be terminated, for it has no express power to declare testamentary trusts void or to terminate them.

eficiary.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Dry Trust.]

Case Reserved from Superior Court, New Haven County; Howard J. Curtis, Judge.

In the matter of the accounting of George W. Crawford, trustee of two separate trusts created by the will of Ella De Ladson. From orders of the probate court approving two separate accounts, Mary F. Cartwright and Edward S. De Ladson appeal. Reserved for advice of Supreme Court on agreed statement of facts. Superior court advised to affirm decrees.

These are two appeals from decrees of probate dated November 20, 1918, approving and allowing two separate accounts presented

4. PERPETUITIES 6(12)-PUBLIC POLICY-by George W. Crawford as trustee of two TRUST RESTRAINING DISPOSITION OF PROP- separate trusts created by the will of Ella De ERTY BY OWNER. Ladson of New Haven, who died in 1916. The two appeals were tried together in the superior court and argued together in this court and present identical questions of law. The clauses of the will creating these trusts are as follows:

The rule that it is against public policy to restrain one in the disposition of property in which none but himself has an interest has no application to, and does not avoid, bequest of property in trust to pay the income to named persons for ten years, when they are to take the corpus, as such provisions do not restrain alienation of the corpus.

"11. I give, devise and bequeath to William F. Alcorn, of New Haven, Connecticut, $1,500 to hold the same in trust, however, for the term 5. PERPETUITIES 6(12)-PUBLIC POLICY-of ten years from the date of my death and to TRUST RESTRAINING USE OF PROPERTY BY OWNER.

The rule that it is against public policy to restrain one in the use of property in which he alone is interested must be limited to attempted imposition of an illegal or unreasonable restraint on the use of property.

6. PERPETUITIES 6(12) CONDITIONS OR RESTRAINTS ON OWNER-MOTIVE OF TESTA

TOR.

The validity of conditions which a testator places on the use of property cannot depend on a motive which might be attributed to him, but on the inherent reasonableness of the conditions from a legal standpoint, and postponing enjoyment of the principal for ten years by the owner to whom a trustee is meanwhile to pay the income is not unreasonable.

7. PERPETUITIES 6(12)-RESTRAINT OF USE -LEGALITY.

There is no illegality or legal inconsistency in a testator postponing the use or possession of

pay the income thereof to my niece Mary Scott, also known as Mary Cartwright, now or formerly of 143 W. 132d street, New York City, and at the expiration of said ten years to pay over to said Mary Scott, also known as Mary Cartwright, the said sum of $1,500.”

"15. All the rest and residue of my estate, both real and personal of whatever nature and description and wheresoever located, including all mortgages owned by me, I give, devise and bequeath to William F. Alcorn, of New Haven, Connecticut, to hold the same in trust, however, for a period of ten years, and to pay the income thereof to my husband, Edward S. De Ladson, and at the expiration of said period of ten years to turn over to my said husband all said rest and residue of my estate then remaining in said trustee's hands."

On June 24, 1918, Mr. Alcorn was removed as trustee on account of his absence in the military service of the United States in France, and the present trustee was appoint

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

ed and qualified in his place. The estate was or whether it should be terminated, for it settled, and on November 15, 1918, the trustee has no express power to declare testamentary presented his first accounts under the trusts trusts void or to terminate them. Possibly a in question showing in each case that he trust may be so hopelessly illegal or uninhad on hand the principal of the trust fund, telligible as to be incapable of enforcement; intact save for the premium upon the trus- but if any reasonable basis of fact or law tee's bond. Each of these appeals rests on exists for a claim, made in good faith, that the same ground; that the decree allowing the trust is valid, the duty of the probate and approving the trustee's account is er- court is to exercise its limited statutory auroneous because the appellant is by the terms thority of enforcing the execution of the of the will the sole and absolute owner of the trust, and leave the contestant to pursue his fund, because the trust attempted to be creat-remedy in a court of chancery. Chambered is a dry or naked trust, because the at-lin's Appeal, supra, 70 Conn. p. 379, 39 Atl. tempted trust constitutes an illegal and in- 734, 41 L. R. A. 204. In this case neither valid restriction upon the appellant's power the probate court, nor the superior court as of alienation of his property, and because appellant is entitled to an order directing the trustee to turn over all the principal and interest of the trust funds, less necessary expenses, to the appellant.

Charles E. Clark, of New Haven, for appellants.

a probate court of appeal had jurisdiction to disallow these accounts on the ground that the trusts were invalid; and for that reason alone we should be compelled to advise the superior court to affirm the decrees of probate.

In the interest of the parties and to avoid further litigation on the subject, we also discuss the questions argued before us. The rule relied on by appellants is stated in Gray on Perpetuities (3d Ed.) par. 120. In substance, it is that, when a person is entitled absolutely to property, a provision postponing its transfer or payment to him is void. That, if there is a gift over in case the cestui que trust dies before the trust terminates, the trustee retains the property for the possible benefit of the substitutionary donee, but to postpone an absolute gift to A. by interposing a trust to pay the income to A. for a term of years, is void "in pursuance of the general doctrine that it is against public policy to restrain a man in the use or disposition of property in which no one but himself has any interest."

George W. Crawford, of New Haven, pro se. BEACH, J. (after stating the facts as above). [1-3] Although in form appeals from decrees allowing the accounts of the trustee, these appeals are in substance applications to have the trusts terminated, and the first question which suggests itself is whether the probate court, or the superior court sitting as a probate court of appeals, has jurisdiction to terminate testamentary trusts which by the terms of the will have still ten years to run. The jurisdiction of probate courts over testamentary trusts is very limited, exclusively statutory, and largely of recent origin. The history of the statutes on this subject down to 1877 may be found in Prindle v. Holcomb, 45 Conn. 111, 121. Since then, by chapter 36, 1881, probate courts were given It is not easy to find a satisfactory legal power to call testamentary trustees to ac-basis for this rule in the form in which Prof. count and to make orders necessary and Gray states it. Lord Eldon's statement of proper to secure the due enforcement of such the rule in Brandon v. Robinson, 18 Ves. 433, trusts. This authority apparently included that, "if property is given to a man for life, final as well as intermediate accounts, for it the donor cannot take away the incidents of makes no distinction between them. None a life estate," is self-explanatory; although the less the revised probate law of 1885 men- the rule is not without exceptions in this tions only annual accounts, and for that rea-state. Clark v. Baker, 91 Conn. 663, and son the jurisdiction remained limited to the settlement of annual accounts of testamentary trustees until it was extended by chapter 125 of 1911, now 5045, G. S. 1918, to final accounts also. The express authority to settle accounts of testamentary trustees and to make orders necessary and proper for the due execution of such trusts carries with it implied power to do what is necessary to the exercise of the jurisdiction expressly conferred. Chamberlin's Appeal, 70 Conn. 363, 378, 39 Atl. 734, 41 L. R. A. 204. Beyond that the probate jurisdiction over testamentary trusts does not go. A probate court may construe such a trust so far as is necessary to enforce the execution of it, but it may not construe a trust to ascertain whether it is void

cases cited on page 666, 101 Atl. 9. Most of the English cases to which we have been referred, including Gosling v. Gosling, Johns. 265, which was especially relied on, exemplify the simpler rule that a testator having once made an absolute gift cannot attach to it repugnant conditions subsequent. When, however, the enjoyment of the principal is given upon the condition precedent of an interposed temporary trust for the payment of income only, the assumption that the donee may disregard the condition and demand an immediate transfer of the legal title requires explanation.

The English cases do not supply any satisfactory explanation. The present English rule that a cestui que trust may put an end to

beneficiary is vested, and it may be assigned, attached, or taken on execution. In this case the record shows that Mary F. Cartwright has sold and assigned her entire interest to Edward S. De Ladson. The fact that the principal is withheld for ten years decreases the present value of the legacy, but it does not restrain the disposition of it by the legatee.

an accumulation which is exclusively for his the corpus of the fund. The estate of the benefit was first actually applied in Saunders v. Vautier, 4 Beav. 115, although the opinion in that case ignores the intermediate trust and disposes of the question, very briefly, as if the gift had been made directly to the legatee, and then the executor had, nevertheless, been directed to withhold the principal and income until the legatee reached the age of 24 years. About 50 years later the same question came for the first time to the House of Lords in Wharton v. Warwick, 1895, A. C. 186, and Lord Hershell said:

"The point seems in the first instance to have been rather assumed than decided. It was apparently regarded as a necessary consequence of the conclusion that a gift had vested, that the enjoyment of it must be immediate on the beneficiary becoming sui juris, and could not be postponed unless the testator had made some other destination of the income during the intervening period. It is needless to inquire whether the courts might have given effect to postpone the enjoyment of his bounty to a time fixed by himself subsequent to the attainment by the objects of his bounty of their majority. The doctrine has been so long settled and so often relied on that it would not be proper now to question it."

the intention of the testator in such cases to

[5, 6] The other branch of the rule, which declares that it is contrary to public policy to restrain a man "in the use * of prop

erty in which no one but himself has any interest," cannot, of course, be accepted unless limited to the attempted imposition or continuance of an illegal or unreasonable restraint on the use of property.

The truth seems to be that the real and only basis of the English rule is, as Lord Hershell suggests, the unconsidered assumption that a gift vested in interest will also vest in enjoyment whenever the donee is or becomes sui juris, unless there is an outstanding present or contingent beneficial interest in another person; and this notwithstanding that the testator has attempted to postpone the complete enjoyment of the gift for a term of years. When the proposition is stated in this way, free from the supposed overpowering authority of a rule of public If this authoritative statement of its ori- policy, it is seen to present, in another form, gin be accepted, the rule in Saunders v. Vau- the more familiar question whether, by posttier and Wharton v. Warwick is not based poning the enjoyment of the principal for a either on public policy or reasoned decision. term of years, the testator has attempted to It is merely a rule which, by repetition, has impose an unreasonable or illegal condition become a rule of property, but was in the on the gift of his bounty. Such conditions first instance based upon the hasty assump-may seem, under some circumstances, to be tion that the enjoyment of a gift vested in interest could not be postponed at the will of the testator, unless for the benefit of another donee.

In this country the rule has been more or less widely accepted on the authority of the English cases, without much independent examination of the supposed legal necessity for adopting it. In one or more states it is said that the intervening trust for accumulation or payment of income is defeated by the statute of uses, and in others, including Pennsylvania, that the intervening trust is objectionable because it violates the rule of public policy forbidding restraint on the use or alienation of absolute estates. It is characteristic of the lack of any convincing reason for the doctrine of Saunders v. Vautier that "the mother of spendthrift trusts" should resort in support of it to a rule of public policy which applies with much greater force to the Pennsylvania form of spendthrift trusts.

[4] In fact, Prof. Gray's rule of public policy has no application whatever to trusts of this kind, for they do not constitute a restraint on the disposition or alienation of

arbitrary and unnecessary, and yet they may rest upon good reasons known to the

testator and not to the court. It is certain that the validity of the conditions cannot depend upon the motive which we may right-. ly or wrongly attribute to the testator as a supposed reason for imposing them. It must depend on the inherent reasonableness or not of a given condition from a legal standpoint, and, looking at it in that way, the postponement of the enjoyment of the principal of a trust fund for ten years is not an unreasonable exercise of the undoubted right of the testator to impose conditions on the enjoyment of his bounty.

[7] Nor is there any good reason for declaring such a condition to be illegal. The objections based on its supposed conflict with the rule of public policy have been examined, and the question remains whether there is any necessary legal inconsistency in a cestui que trust as to income, having at the same time, a vested right as remainderman to the principal of the gift. There is, of course, no objection to this during a period of temporary incapacity, such as infancy, coverture, or insanity. And by conferring discretionary