By the contract it was provided:

6. PERPETUITIES 4(22)-ESTATES CREATED | proceeds of sale distributed, all debts and lia-VALIDITY-PARTIAL INVALIDITY. bilities paid or discharged, and its affairs fully Where testatrix made a number of specific adjusted." bequests coupled with an invalid trust, which was intended merely to postpone payment for five years, the trust provision could be expunged without destroying her general scheme and purpose and the legacies were valid. 7. WILLS

"First. It is mutually covenanted and agreed that the party of the second part shall be elected and re-elected and retained and continued, and that he will act and continue to act as

477-CONSTRUCTION-REFERENCE president and manage and control the affairs of

TO OTHER DOCUMENTS.

A statement in a will that testatrix expressly recognized the existence of a certain contract, subject to which certain legacies were to be paid, did not give such contract any greater force than had it not been mentioned in the will.

Appeal from Supreme Court, Appellate Division, Second Department.

Proceedings in the matter of the probate of the last will of Clara F. Hitchcock, deceased. From an order of the Appellate Division (176 App. Div. 326, 160 N. Y. Supp. 1029) unanimously affirming a decree of the surrogate construing the will, Robert E. Farley, as executor, and others, appeal. Affirmed.

the Scarsdale Estates until all of the property of the Scarsdale Estates shall have been sold and disposed of, the proceeds distributed, and its debts and liabilities paid or discharged, and its affairs fully adjusted.

"Second. The management of the Scarsdale Estates shall be vested in the party of the second part, and the property of the Scarsdale Estates shall be sold and handled and its affairs managed and controlled in accordance with what in the opinion, judgment, and discretion of the party of the second part shall be for the best interest and welfare of the Scarsdale Estates, but this management of the Scarsdale Estates by the party of the second part shall be subject to the wishes and directions of the parties of the first part so long as they or either of them shall survive."

Provision was also made therein for comArthur J. Strang, for appellant and re-pensation to Farley for his services, payspondent Robert E. Farley, as executor. Ros-able when all the property of the Scarsdale coe S. Conkling, of New York City, for ap- Estates has been disposed of, the proceeds pellant Henry C. Reimer. Harold B. Elgar, of sale distributed, all debts and liabilities of New York City, for appellant August C. paid or discharged, and its affairs fully adReimer. Thomas F. J. Connolly, of Port-justed, and also in case of the death of Farchester, special guardian of appellant Reimer ley or of his incapacity before all the propShearman. Francis Smyth, of New York erty of the Scarsdale Estates had been sold City, for respondent County Trust Co. Wil- and its affairs fully adjusted. The contract liam C. Beecher, of New York City, for re- also provided: spondent New York Society for the Suppression of Vice. Howard Mansfield, of New York City, for respondent St. Paul's Methodist Episcopal Church of Hartsdale. John Patrick Walsh, of New York City, for respondent Hitchcock Memorial Presbyterian Church. Herbert Barry, of New York City, for respondent American Society for the Prevention of Cruelty to Animals.

CHASE, J. The "Scarsdale Estates Incorporated" is an incorporation having a capital stock of $500,000 formed for the purpose of developing and selling certain real property in Westchester county, formerly owned by the testatrix and her husband. One Farley was the president of such corporation. On March 24, 1909, the testatrix and her husband entered into a contract with said Farley which recited:

"Whereas, the parties of the first part are the owners and holders of all of the stock of the Scarsdale Estates, in connection with the affairs of which corporation the party of the second part has for a considerable time' been representing the parties of the first part, and of which corporation the party of the second part has been since May 1, 1908, and still is, president, to which office he was elected on the nomination and at the request of the parties of the first part; and,

"Whereas the parties of the first part wish and have requested the party of the second part to continue to act as president and to manage the affairs of the Scarsdale Estates as he is at present doing until all of the properties of the Scarsdale Estates have been disposed of, the

"Sixth. No compensation due the party of the second part as herein before provided, whether he be living or dead, shall be paid or required until the same can be paid by the Scarsdale Estates conveniently and without difficulty or embarrassment."

"Eighth. Any sale of the stock or interests Estates shall be made subject to the terms and of the parties of the first part in the Scarsdale obligations of this agreement.

"And to the true and faithful performance of this agreement the parties hereto bind themselves, their heirs, executors, administrators, and assigns."

On the day that said contract was made with Farley the testatrix made her will. By her will she gave many specific legacies of clothing, silverware, jewelry, and the like to persons therein named. She also gave money legacies to relatives, employés, and religious and other corporations therein named, amounting in the aggregate to about $200,000. She also therein provided as follows:

"Forty-First. I expressly recognize the existence of a certain contract dated the 24th day of March, 1909, between Clara F. Hitchcock and Welcome G. Hitchcock as parties of the first part and Robert E. Farley as party of the second part which contract was prepared at the suggestion and request of my husband and myself and represents our wishes and directions in connection with the management of the Scarsdale Estates; and any devise or legacy that depends for its payment or discharge upon a payment by the Scarsdale Estates to my estate shall await such payment from the Scarsdale Estates, whatever direction as to time to the contrary may appear herein, and no attempt shall be made by my estate or the devisees or

legatees hereunder to force the sale of the prop- I third of this codicil shall apply to my disposierty of the Scarsdale Estates for the payment tion of the residue of my estate as well as to all or discharge of legacies or devises or the final other bequests and devises." settlement of my estate."

N. Y. 68, 38 N. E. 979; Dougherty v. Thomp- tion of her property. She had a full apson, 167 N. Y. 472, 60 N. E. 760; Fulton Trust preciation of her property and of those Co. v. Phillips, 218 N. Y. 573, 113 N. E. 558. among whom she wanted it divided. Her The gifts in the will in controversy were appreciation of her property and those havvested. The payment was postponed simply ing a claim upon her is shown not only by for the benefit and convenience of the estate. the general provisions of the will, but par[3] The testatrix by the trust created in ticularly by the fortieth paragraph of the the thirty-eighth paragraph of the will post-original will, in which she says: poned the possible disposition of her property for a term not measured by lives. Such a trust is invalid. Its invalidity is not overcome by reason of the power vested by the will in her husband to consent to a distribu

"I have herein provided for all persons who have any claim on me by reason of consanguinity or affection whom I desire to participate in my estate."

Her express republication of the will in tion of the estate before the expiration of statement made by her in the fortieth provithe first and second codicils emphasizes the the term of years nor because of the powersion of the original will as stated. The tesof sale vested in the executors. Not only tatrix knew that her property was principalwas the consent of her husband dependent upon his will, but in case of his death be-y invested in the stock of the Scarsdale Esfore the expiration of the term of years it tates Incorporated, and that, if such corwould be impossible for a part, at least, of Poration should force the sale of its lots, or

the period in the will provided to obtain a consent to a distribution.

[4] To render a trust valid, it must be so limited that in every possible contingency there will be an absolute termination thereof within the period prescribed by statute. Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 69 N. E. 283, 67 L. R. A. 146; Matter of Wilcox, 194 N. Y. 288, 87 N. E. 497; Matter of Mount, 185 N. Y. 162, 77 N. E. 999; Brown v. Quintard, 177 N. Y. 75, 69 N. E. 225.

if her executors were compelled to sell the stock in the corporation for the best price they could obtain therefor at the time, it might result in a serious loss to her estate and to those for whom she had provided by her will. She undoubtedly believed that her executors could, if given sufficient time and authority, act with the corporation, and by

so doing realize a large amount for her stock therein for the benefit of the legatees. The time as stated in the codicil was wholly for that purpose. It was perhaps a commendable purpose, but she failed to put her purpose in legal form. Her purpose was in fur

[5] The power claimed to be given to the executors in the codicil (even if it were pos-therance of the testamentary provisions prosible in view of the other provisions of the will to exercise it) would result in a distribution of the estate in disregard of the trust. Such power does not in any way sustain the trust.

vided by the will, and not in antagonism to them. The failure of the trust should not affect her testamentary dispositions.

We think that it clearly appears that the testatrix desired to have the money legacies [6] The scheme of the testatrix as shown paid and the residue of her estate divided as by the original will in which the payment of in the will provided, in any event, and that the legacies and the distribution of the re- the trust was collateral to such desire. The siduary estate was postponed for a period of lawful wishes of the testatrix would be deyears included, as we have seen, an inter-feated if the testamentary dispositions are mediate interest in her husband as bene- not sustained. ficiary. The contestants assert that after her husband's death the scheme of the testatrix was wholly changed, and that, even if the provisions of the original will providing for an intermediate estate could be expunged therefrom, without destroying the general scheme and purpose of the testatrix, as in the original will expressed, the provisions of the first codicil are such as to make it impossible to declare any part of the will void without thereby defeating all the testamentary provisions contained therein. The third and fourth paragraphs of the codicil provide for a trust for a period of years, and not based upon lives, and it does not therein in terms dispose of the income. Such trust was invalid. The testatrix, however, was clear and definite in stating among whom her estate should ultimately be divided. No change whatever was made by the testatrix in either of the codicils to her will so far as it affects

The principle is now well settled that the courts lean in favor of the preservation of such valid parts of a will as can be separated from those that are invalid without defeating the general intent of the testator. Harrison v. Harrison, 36 N. Y. 543, 547; Matter of Berry, 154 App. Div. 509, 139 N. Y. Supp. 186, affirmed 209 N. Y. 540, 102 N. E. 1099; Davis v. MacMahon, 161 App. Div. 458, 146 N. Y. Supp. 657, affirmed 214 N. Y. 614, 108 N. E. 1092; Bailey v. Buffalo L. T. & S. D. Co., 213 N. Y. 525, 107 N. E. 1043; Kalish v. Kalish, 166 N. Y. 368, 59 N. E. 917; Smith v. Chesebrough, 176 N. Y. 317, 68 N. E. 625; U. S. Trust Co. v. Hogencamp, 191 N. Y. 281, 84 N. E. 74; Brinkerhoff v. Seabury, 137 App. Div. 916, 122 N. Y. Supp. 481, affirmed 201 N. Y. 559, 95 N. E. 1123; Henderson v. Henderson, 113 N. Y. 1, 20 N. E. 814; Hascall v. King, 162 N. Y. 134, 56 N. E. 515, 76 Am. St. Rep. 302.

forty-first paragraph of the will the testatrix | whether the collision was due to the neglisought to make the contract with Farley a gence of those in charge of the automobile or part thereof. The provisions of that paragraph do not give the contract with Farley any further or greater force and effect than it would have had if it had not been mentioned in the will. Control over the corporation is vested in it. Power to sell the stock is recognized in the contract itself. The rights of the parties under the contract are not now before the court for determination. Such rights must be determined by the parties thereto and their successors in interest, or, in case of their failure to agree, then by the courts, when the questions arising therefrom are presented by appropriate action or proceeding. The testatrix did not make the contract a part of her will.

We think the judgment of the Appellate Division affirming the decree of the Surrogate's Court should be affirmed, without costs to any party in this court.

of the motorman of the car. Both Bain and Stoner testified that they approached Brookline avenue, one of the intersecting streets, at a slow rate of speed, sounding a signal and looking out for electric cars. Bain testified further that he knew the cars ran on Brookline avenue and that he knew the corner in question was a dangerous one for that reason. As bearing upon the due care of those in charge of the automobile, the plaintiff offered to show that as they approached the intersection of the two streets Stoner remarked to Bain, "Look out for the Brookline Avenue cars." There was no reversible error in the exclusion of this offer of evidence. Whether those in charge of the automobile used due care or not in endeavoring to avoid collision with the electric car depended upon their conduct in view of all the circumstances. It did not depend upon their previous conversation. The driver of the auknew that the cars ran upon the street. His testimony as to what he did shows, if believed, that he was acting in the light of his knowledge.

HISCOCK, C. J., and CUDDEBACK, CARDOZO, MCLAUGHLIN, CRANE, and AN-tomobile was familiar with the corner and DREWS, JJ., concur.

Report from Municipal Court of Boston,

Appellate Division.

The case at bar is distinguishable from Belleveau v. S. C. Lowe Supply Co., 200 Mass. 237, 241, 86 N. E. 301, and Sullivan v. Scripture, 3 Allen, 564, because in both those cases the conduct of two people in active combination and a reliance by one upon the statements and acts of the other was in

volved in determining the care or negligence of each. There was co-ordination of effort by the two toward a common end, and the extent of dependence which one reasonably might place upon the other was material. In

the case at bar a mere warning was given by one to the other in substance to exercise care, when according to the testimony of each he was already alert and using his fac

ulties to that end. Proof of that fact was

of no essential probative value. The ruling Action by Jacob Nathan against the Bos- of the trial judge presented no reversible erton Elevated Railway Company. The municror of law and his finding ought not to have ipal court found for defendant. Case was been vacated by the appellate division. On reported to the appellate division, which vathe finding of the trial judge judgment should cated the finding and ordered new trial, and be entered for the defendant in the municidefendant appeals. Judgment ordered enter-pal Court. Loanes v. Gast, 216 Mass. 197,

ed for defendant.

Geo. R. Farnum and Edward E. Ginsburg, both of Boston, for plaintiff. Rupert L. Mapplebeck, of Roxbury, for defendant.

RUGG, C. J. This is an action of tort to recover compensation for damage to an automobile belonging to the plaintiff arising from a collision between it and an electric car of the defendant at the intersection of two streets. The automobile was being driven by one Bain, and one Stoner was riding with him. The question of fact at issue was

199, 103 N. E. 473.
So ordered.

(229 Mass. 19)
COMMONWEALTH ▼. HENRY.
(Supreme Judicial Court of Massachusetts.
Middlesex. Jan. 2, 1918.)

MUNICIPAL CORPORATIONS 707-AUTOMO-
BILES LIGHTS-STATUTE-"OPERATED."

An automobile left standing on a highway after dark without lights and with the engine at rest was "operated" within St. 1909, c. 534, ing the operation of automobiles on public § 7, as amended by St. 1915, c. 16, § 3, prohibit

streets from half an hour after sunset to half

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

an hour before sunrise, without displaying cer- not appear from the agreed facts how long tain lights, since the word "operated" is not the automobile had been left upon the street limited to a state of motion produced by the mechanism of the car, but includes at least or for what purpose the defendant went ordinary stops upon the highway, which are into the building. Certainly there is nothregarded as clearly incident to its operation. ing to show that he had left it for an un[Ed. Note. For other definitions, see Words reasonable time, or that the stop was not and Phrases, First and Second Series, Operate.] for a proper purpose; nor is there any eviReport from Superior Court, Middlesex dence that the car had been abandoned, alCounty; Robert F. Raymond, Judge. though we do not mean to intimate that if it had been the statute would not have been violated. As was said in the recent case of Stroud v. Hartford, 90 Conn. 412, 97 Atl. 336, in construing a similar statute:

James E. Henry was convicted of operating an automobile without displaying lights. On report to the Supreme Judicial Court. Judgment affirmed.

N. A. Tufts, Dist. Atty., of Waltham, and F. W. Fosdick, Deputy Dist. Atty., of Boston, for the Commonwealth. Thibodeau & Ellsworth, of Boston, for defendant.

CROSBY, J. The defendant is charged with violation of the provisions of section 7

of chapter 534 of St. 1909, as amended by section 3, c. 16 of St. 1915; he was found guilty by the First District Court of Eastern Middlesex, and appealed. At the trial in the superior court he excepted to the refusal of the presiding judge to give to the jury four instructions, each of which in effect amounted to a ruling that he was entitled to an

acquittal upon the agreed facts. The facts agreed upon are as follows:

* * *

In

"The word 'operation' * must include in the course of their operation. such stops as motor vehicles ordinarily make this case the plaintiff's car was as much in the ordinary course of operation on the highway at the time of the injury as if it had been used for shopping, calling, or delivering merchandise."

It was said by this court in Smethurst v.

Barton Square Church, 148 Mass. 261, 266, 19 N. E. 387, 389 (2 L. R. A. 695, 12 Am. St. Rep. 550), that:

"In order to be a traveler it is not necessary that one should be constantly moving, if he is a pedestrian, or that the vehicle he drives, or that in which he is conveying goods, if he is using one, shall be continuously in motion. It would certainly be impossible to use the highways conveniently for the ordinary purposes of business or social life with teams or lighter carriages if occasional stops were not permitted to enable those using them to load and unload teams, to receive and deliver goods, to enter shops and stores, and to make brief calls of business or even of a social character."

The statute must be read with reference to

"It is hereby agreed between the government and the defendant that on May 3, 1915, at about 8:30 in the evening, more than half an hour after sunset on said date the defendant drove his automobile on Pleasant Street, a public way in the City of Malden in said Coun- its manifest intent and spirit and cannot be ty, and left it standing thereon; that when and as he drove it on said street it was properly limited to the literal meaning of a single lighted, but that when he left it standing as word. It must be construed as a whole and aforesaid he turned out both his front lights interpreted according to the sense in which and rear light; that when he left the automo- the words are employed, regard being had bile standing, no part thereof was moving and that the engine was stopped; that defendant to the plain intention of the Legislature. So thereafter went into a building nearby, leaving considered, we cannot doubt that the statsaid automobile on said street until notified.' ute is broad enough to include automobiles The statute under which the complaint is at rest, as well as in motion, upon the highdrawn was enacted largely for the protection ways. Jaquith v. Worden, 73 Wash. 349, of travelers upon highways, by guarding 132 Pac. 33, 48 L. R. A. (N. S.) 827; Stroud against collisions with automobiles after v. Hartford, supra. So far as the case of dark when it would be difficult or impossible Harlan v. Kraschel, 164 Iowa, 667, 146 N. W. to know of their presence. The question is, 463, is in conflict with the views herein exwhether an automobile which is left stand-pressed, we are not disposed to follow it. ing upon a highway after dark without lights The defendant's requests for instructions and with the engine at rest can be found to were rightly refused. be "operated" within the meaning and in- Judgment affirmed. tent of the statute.

(228 Mass. 594)

PANELL v. ROSA et al. (Supreme Judicial Court of Massachusetts. Worcester. Jan. 1, 1918.)

It is obvious that an automobile standing upon a highway under such conditions may be fully as great a menace to the safety of travelers as if running upon the way without lights, and that the danger of serious injury to travelers by coming in contact with 1. WITNESSES 198(1) - PRIVILEGE OF ATsuch an automobile would be very great.

TORNEY.

The general rule of the common law is that an attorney may not disclose matters communicated to him by his client under the confidence arising from the professional relation. 2. WITNESSES 201(1) - PRIVILEGE OF ATTORNEY-WILL CASE.

The word "operated" is not, as the defendant contends, limited to a state of motion produced by the mechanism of the car, but includes at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation. It does For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In proceedings to probate a will, the controversy as to whether testatrix was of sound mind