Coit v. Columbus.

The condition of the improvement is poor. It is sought by the defendants to charge the street railway company with the defective condition of the street, but I cannot find that to be the case. There was some evidence perhaps tending to show that when they cut down the center of the street it destroyed the crown so that the travel on the side of the street tended to impair and render defective the improvement and disarrange the bricks, but these bricks were all restored. I do not think the evidence establishes the contention of the defendant with reference to this feature of the case.

Now when did these defects appear? We know that in April, 1896, the city engineer issued a certificate that the street was all right and in perfect condition. The certificate recites the fact that the street does not need any repair of any kind and therefore the fund that was held for the repair of the street was released. From this fact we know that in 1896 the plaintiffs in this case had no knowledge of any defects in that street. It must have come some years later. Just when or how many years later it would be impossible for the court to tell from the evidence, but the burden is on the defendant to show to the court that these defects appeared at such a time as would bar plaintiff's action. I find that the action is not barred for relief on this ground.

I take special pleasure in declaring null and void all assessments on that street not yet paid, every one of them, and the city will pay the costs of this action. The property owners have already paid, I should judge, twenty-five or fifty per cent. more than they should, but I cannot grant them any relief for that.

The holding of the court is that all unpaid installments of this assessment are declared void, and the injunction is made perpetual. Of course as to those who have purchased and assumed the assessments the ruling of the Supreme Court will be adopted. An exception will be noted.

JURY-VERDICTS.

[Superior Court of Cincinnati, Special Term, 1903.]

MCBEE V. CINCINNATI STREET RY. Co.

1. QUESTION OF NEGLIGENCE FOR JURY, WHEN.

It is not negligence as a matter of law for a passenger alighting from a street car to go back of the car and attempt to cross the street and in so doing omit to look for the approach of another car, but the question as to whether, under all the circumstances, his act was negligent is a question of fact to be submitted to the jury.

2. COURT CANNOT SET ASIDE VERDICT, WHEN.

A mere difference of opinion between the jury and the court as to questions of fact will not justify the court in setting aside the verdict unless it is manifestly contrary to the weight of the evidence.

Superior Court of Cincinnati.

Jas. R. Foraker, for the motion.

Thos. L. Michie, contra.

SMITH, J.

Plaintiff was a passenger on a north bound car running along Freeman avenue. He alighted from the car and going back of the car attempted to cross the street on or near the street crossing of an intersecting street that runs east and west and was struck by a south bound car coming down Freeman avenue. He was seriously injured and lost one of his The jury returned a verdict for the plaintiff. The defendant seeks a new trial on the ground that the verdict is manifestly against the weight of the testimony.

There is testimony tending to prove that the defendant was guilty of negligence in the operation of the south bound cars: (1) In running the cars faster at an intersecting street than the rules of the company permitted, and (2) in not sounding the gong. Although there is a conflict of testimony upon these points, I would not be justified in holding that the finding of the jury that the defendant was guilty of negligence was manifestly against the weight of the testimony.

The doubtful question arises as to the contributory negligence of the plaintiff.

It was held in Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276], that it is not negligence as a matter of law for a passenger alighting from a street car to go back of the car and attempt to cross the street and in so doing omit to look for the approach of a car, but that the question as to whether under all the circumstances his act was negligent is a question of fact to be submitted to the jury. The ruling in Cincinnati St. Ry. Co. v. Snell, supra, was followed in the case at bar with the result before stated.

It is further held in Cincinnati St. Ry. Co. v. Snell, supra, that "Where the evidence of the plaintiff shows actionable negligence on the part of the company, and the question of contributory negligence of the plaintiff depends upon a variety of circumstances from which different minds may reasonably arrive at different conclusions as to whether there was contributory negligence or not, the question should be submitted to the jury under proper instructions." See also Wallen v. Street Ry. Co. 82 Ill. App. 103.

The constitution of Ohio authorizes a trial by jury in cases of this character where either party desires it, and our Supreme Court has held that a mere difference of opinion between the jury and the judge as to questions of fact will not justify the judge in setting aside the verdict unless it is manifestly contrary to the weight of the testimony. The application of this principle forbids interference on my part with the verdict of the jury.

McBee v. Street Railway Co.

It is unfortunate for the administration of justice that the men best qualified to sit as jurors in large cities are so engrossed in their private affairs that they are unwilling to devote any time to jury service. The regular jurors are empaneled for the term or for three weeks, and to a busy man it is a serious sacrifice of his private interests to devote this time to jury service; and when forced by the court to serve against his will, his mind is in a constant state of rebellion and his efficiency as a juror much impaired. The result is that our jurors are for the most part too much made up of men who serve for the purpose of earning the two dollars a day paid for jury service. It is not surprising therefore that the verdicts of juries are often exceedingly unsatisfactory. Yet in most cases the judges are unable to afford a remedy. To set aside a verdict is simply to have the case tried before the same kind of a jury.

Motion for new trial overruled.

WILLS.

[Lucas Common Pleas, February 9, 1903.]

*FINLAY BREWING CO. v. HENRY DICK et al.

WILL DEVISING ESTATE IN FEE SIMPLE

If real estate is devised to A generally, without any qualification or condition, but with a proviso that in case of his death without will, the property shall go to B, the limitation over is void, and A takes the entire estate in fee simple, unaffected by the proviso.

Shunck & Thompson and Frank G. Crane, for plaintiff.

W. H. A. Read, for defendant, Emma A. King.

PUGSLEY, J.

This is a demurrer by the plaintiff to the answer and cross-petition of the defendant, Emma A. King. The action is brought to foreclose a mortgage given to the plaintiff by the defendant, Henry Dick. The defendant, Emma A. King, claims a lien on the mortgaged premises under and by virtue of the will of her mother, Bertha Dick. The clause of the will under which this lien is claimed is as follows:

"I hereby devise, give and bequeath to my husband, Henry Dick, all the residue of my said real and personal estate after payment of my said debts. Provided, however, that in case of my said husband's death without will, all of my said property shall go and belong to my grandson, Henry A. Dick, subject, however, to a charge with the payment of $1,000 to my daughter Emma A. King."

As the payment of the money to Emma A. King is charged only upon the estate devised to Henry A. Dick, it is necessary to determine what such estate is. The will must be construed in such manner as to give effect to the clear intention of the testatrix, so far as this can be done consistently with established rules of law.

*Affirmed by circuit court without report.

Lucas Common Pleas.

All the property is devised to Henry Dick, not for life, but absolutely or in such terms as standing alone are appropriate and sufficient to carry the absolute estate in fee simple. No express restriction is put upon the power of Henry Dick to convey the property or to do any act in relation to the property which is incident to an ownership in fee, and by necessary implication the power is given him to dispose of the property by will. It was clearly the intention of the testatrix that Henry A. Dick should have the property only in the event that Henry Dick should die intestate. If he disposes of the property by will, as he may do, the devise over will never take effect. Whether or not Henry A. Dick shall get the property is thus made to depend upon the pleasure of Henry Dick.

The great weight of authority sustains the conclusion that although generally an estate may be devised to one in fee simple with a limitatio over by way of executory devise, yet when an estate is given to one generally, or indefinitely, with the power to dispose of it by deed or will, the limitation over is void, on the ground that it is irreconcilable with the primary devise, and the first devisee will take the entire estate in fee simple. I will refer to some of the cases.

In Holmes v. Godson, 8 De Gex M. & G. 152, a testator gave real and personal estate upon trust for his son to vest in him on his attaining the age of twenty-one years, but if he should die under twenty-one, or having attained twenty-one, should not have made a will, then the property should be sold and the proceeds held on other trusts: Held, that the property vested in the son absolutely at twenty-one, and that the gift over is repugnant and void.

In Ross v. Ross, 1 Jacob & Walker, 154, a legacy was given to A to be paid at twenty-five with a limitation over in case A should not receive or dispose of it by will, or otherwise, in his lifetime: Held, that the limitation over is void.

* * *

In Gilmer v. Daix, 141 Pa. St. 505 [21 Atl. Rep. 659], the will contained this language: "I give and bequeath to my son * * all my real and personal estate. Should he die without leaving to any person. then to my brother during his life; and after his death, to all the children and grandchildren of my sister-in-law." Held, that the words of the second clause, whether they were merely precatory or imposed a condition, were inoperative and void, and the son took the entire estate in fee simple.

In Jackson v. Robins, 16 Johns. 587, the court say "we may lay it down as an incontrovertible rule that when an estate is given to a person generally or indefinitely with a power of disposition it carries a fee, and the only exception to the rule is when the testator gives to the first taker an estate for life only by certain and express words and annexes to it a power of disposition."

In Campbell v. Beaumont, 91 N. Y. 464, the testator gave all of his

property to his wife, and, in case of her decease, the same or such part thereof as may remain to her son: Held, that the widow took an absolute title unaffected by the provision for her son.

In Howard v. Carusi, 109 U. S. 725 [3 Sup. Ct. Rep. 575], the testator devised certain real estate to his brother, and at his death, the same or so much thereof as he shall not have disposed of by devise or sale, to his three nieces: Held, that the devise to the brother was in fee simple with no limitation over, and creates no trust executory or otherwise.

In Fisher v. Wister, 154 Pa. St. 65 [25 Atl. Rep. 1009], the testator devised certain property to his two grandsons and then made this provision: "I hereby forbid that the property shall be sold out of the family, but leaving them at liberty to dispose of their respective parts by will. In case of the death of either one of them, intestate, without direct heirs, I direct that such intestate part shall be held by his sister."

It was held that a fee simple was vested by the will in the grandsons, and that the attempt at an executory limitation in case of their death, intestate, without direct heirs, transgressed the rule that it must not be within the power of the first taker to defeat the devise over either by the execution of a deed or will. This case was referred to a master, and his opinion is fully reported, and the court (a full bench of seven judges) dispose of the case as follows:

"We affirm this decree upon the clear and able report of the learned master below, and dismiss the appeal at the costs of the appellant." I will read from the opinion of the master, pages 71 and 75: "Upon this question the master is of opinion that a fee simple was vested by the will in Ellicott and Harvey Fisher, and that the attempts at executory limitation in case of their death, intestate, without direct heirs, transgress the rule that it must not be within the power of the first taker to defeat the devise over either by the execution of a deed or will.

"This rule was recognized by Chancellor Kent in the leading case of Jackson v. Robins, 16 Johns. 537, in an opinion where all the ancient learning upon the subject is collected and reviewed. The syllabus of the case is: 'Where A devises all his real and personal estate to his wife, and in case of her death without giving, etc., by will, or otherwise selling or assigning said estate, then he devises the same to his daughter D. The wife takes the entire fee simple, both by force of the word 'estate' and of the absolute power given by the will; and the subsequent limitation, being repugnant thereto, is void, either as a remainder, (which cannot be limited on a fee), or as an executory devise, to the validity of which it is essential that it cannot be defeated by any act of the first taker. The same rules apply whether the limitation is of real or personal property. In either case it is void. Where there is a devise for