certain bonds having nearly eighteen years to run, on testator's children and their descendants who might be living at the time of the testator's decease, or that of the last of his children. The language used, as well as the declared purpose, shows that it is a gift in trust for the benefit of those who should thereafter, throughout an indefinite period of time, being descendants of the testator, become destitute and in need of aid and support. The words import that the bequest is ultimately to be administered by others than the trustees named, and that the testator has not sought to repose a special confidence in them exclusively, but to establish a permanent trust, for which trustees were ultimately to be appointed according to the ordinary rules of courts of equity. That such a gift is too reIt is thus apparent from the statement made by mote as tending to create a perpetuity, when it is to Judge Devens of what was decided in Hemenway v. be held for the benefit of those who may not have been Hemenway, that the life tenant was not required to living at the time of the testator's death, or that of make good the premiums paid. The fact that the his children, and who may not come into being until amount was small, and that the investment formed many years thereafter, cannot be controverted unless but a small part of a large estate, and the further fact it can be sustained as a public charity. Nightingale v. that there existed between the life tenant and remain-Burrell, 15 Pick. 104; Brattle Square Church v. Grant, derman a peculiar relation, cannot affect the principle 3 Gray, 142; Sears v. Russell, 8 id. 86; Thorndike v. involved. Irrespective of all such considerations, the Loring, 15 id. 391. life tenant either is or is not bound to restore the de The attorney-general has therefore been made a pleted principal to its original sum before the pre-party to this bill, as well as all the demandants of the miums were paid. The decision in that case was that testator. Jackson v. Phillips, 14 Allen, 539. he was not obliged to do it. POUGHKEEPSIE, N. Y. GUY C. H. CORLISS. WILL-TRUST FOR TESTATOR'S DESTITUTE CHARITY-PERPETUITIES. MASSACHUSETTS SUPREME JUDICIAL COURT. KENT V. DUNHAM.* A public or charitable trust may be indefinite in duration, and its general object or purpose, as indicated, being charitable, the application and selection of the particular objects or individuals who are to receive its benefits may be confided to those who are its trusmust be some benefit to be conferred upon or duty to tees. That a gift should have this character, there be preferred toward, either the public at large or some part thereof, or an indefinite class of persons. If a trust were created for the benefit of the poor of a particular town or parish, or of persons of a specified clsss or occupation, as seamen, laborers or mechanics, it would not be doubted that it would be good as a charity. So if a sum were bequeathed, the income of which from time to time, or in the discretion of the trustees, was to be applied to the relief of the destitute by distribution of fuel or provisions, or in any other similar defined mode, or as the trustees might deem most expedient, the gift would be enforced as a public charity. A. bequest to trustees, their heirs and assigns forever, in no effect, so far as it contained a residuary clause, R. M. Morse, Jr., and H. Dunham, for plaintiffs. DEVENS, J. The gift to "Samuel Leeds and Josiah The gift in the case at bar is solely for the benefit of the children of the testator, and their descendants. The only public interest that there can be in connection with it is that where, as there may be hereafter certain destitute persons, descendants of the testator, who might otherwise become a public charge, they will be entitled to relief from this fund. This legacy, it will be observed, is readily distinguishable from one of a particular town or parish, preference being given to the descendants or the relations of the testator. In such a donation there is a public object, as they are thus provided for only as a part of the poor who are to receive the benefit of the charity, although a preference is given them, on account of their descent or relationship, in its distribution. There were certain English cases which, as the trustees contend, offered strong ground for holding this legacy to be public charity. In Attorney-General v. Bucknall, 2 Atk. 328 (1741), the point decided was that any person, though the most remote in the contemplation of the charity, might be a relator in an information in reference thereto. The facts, as stated in the note, do not show that any question arose as to whether the bequest was a public charity, the only inquiry apparently being whether the relator was one of the poor relations who were the objects of the bounty. In White v. White, 7 Ves. 423 (1802), it was held that a bequest to poor relations of two families for putting out their children as apprentices, the duration of which would have exceeded the limits allowed by law unless it was a public charity, might be executed by putting out those who were then ready as apprentices. There was no discussion of the subject in the opinion of the master of the rolls, Sir William Grant. In Attorney-General v. Price, 17 Ves. 371 (1810), there was a direction to pay £20 per annum to the testator's poor relations in the county of Brecon, which was held as a public charity, apparently upon the authority of Isaac v. Defriez, Amb. 595, and on the ground that it was entitled to have perpetual continuance for the benefit of a particular class of poor. In Gillam v. Taylor, L. R., 16 Eq. Cas. 581, it was held that where the testator gave the residue of his real and personal estate to trustees for investment in their joint names, and directed the interest from time to time to be paid to such lineal descendants as they might severally need, the gift was charitable, and that it need not be distributed to those actually poor, but only to those relatively so, and thus that if all the relations except one had £20,000 a year, and the latter £10,000 a year, he would be entitled. This decision is treated with but scant respect in Attorney-General v. Northumberland, L. R., 7 Ch. Div. 745, by Sir George Jessel, M. R., where it is said that such a charity would only be good in favor of those actually poor. In this latter case the gift only gave preference to the relations of the testator in the distribution of the income of the trust fund to the poor, which was provided for annually. These cases do not fully sustain the position that the legacy here in question can be upheld as a public charity. In all of them there were persons so situated as to be entitled to the benefit of the charity, so that an indefinite accumulation was not to be permitted in favor of a class which might never have an existence, or might never come into existence within any period of time when its connection with the testator could be traced. Bequests in favor of poor relations also are for a far more extensive class than descendants. beggary, and thus from becoming a public charge. To establish as a permanent charity a provision for a single family. and thus, it may be, to prevent an indefinite accumulation of property which might eventually be solely for the benefit of the testator's heirs, and those who claim under them, would be foreign to the general principles of our law on this subject, and cannot be justified by so slight a prospective public benefit. The result is that the portion of the eighth clause of the testator's will which seeks to establish a trust in two-thirds of the residue of his estate for the benefit of his children and their descendants "who may be destitute, and in the opinion of the trustees need such aid," must be deemed to be invalid and without effect. Demurrer overruled. INSURANCE-LIFE-AGREEMENT FOR-PRO- ENGLISH COURT OF APPEAL, MARCH 6, 1886. CANNING V. FARQUHAR.* A proposal was made to an insurance company for an insurance on the life of the proposer, who made, on a form issued by the company, statements as to his state of health and other matters, and a declaration that the statements were true and were to be taken as the basis of the contract. The proposal was accepted at a specified premium, but upon the terms that no insurance should take effect till the premium was paid. Before tender of the premium, there was a material alteration in the state of the health of the proposer, and the company refused to accept the premium or to issue a policy. Held, that the nature of the risk having been altered at the time of the tender of the premium there was no contract binding the company to issue a policy. While the failure of issue, and thus the termination of APPEAL from the judgment of Pollock, B., for the the line of lineal descent, is comparatively common, the ancestors of every person are indefinitely numerous, and there can be no failure of collateral relations, except such as may arise from the impossibility of tracing the descent of the testator. defendant on further consideration. The plaintiff was the administrator of A. S. Canning, deceased, and the action was brought against the defendant as representing the Sun Life Assurance Society. The cause of action alleged was that the soWithout desiring to express any opinion as to ciety agreed with A. S. Canning in his life-time to inwhether we should hold it to be our duty to follow the sure his life for one year on payment by or on his bedoctrine of these cases if the question presented by the half of the premium of 471. 188. 4d., but although the case at bar was fairly within them, the reasons why premium was tendered within one month of the acthe gift of the testator cannot be sustained as a public ceptance by the society, the time allowed for paycharity appear to us entirely sufficient. It is the pol-repudiated the agreement, and refused to issue a polment thereof, yet the society refused to receive it, and icy of the law to prevent indefinite accumulation of property for the benefit of individuals. The descend-icy or to pay on the death of A. S. Canning the sum In the expec ants of the testator are now, and have been since his insured, or any of it. The facts were as follows: On the 8th of Dec., 1883, a proposal form was forwarded by one Walters to the society. The form contained the usual questions that are put to proposing insurers duly answered by A. S. Canning, and a certificate signed by him that all the statements were true, that he was then in good health, and as to certain other matters, and a declaration as follows: "I, Alfred Samuel Canning, described in the foregoing proposal, being desirous of assuring with the Sun Life Assurance Society, the sum of 2000l. with profits on my own life, do hereby declare that the whole of the statements made by me in the said procertificate signed by me in the presence of the medposal are true; and this declaration, together with the ical examiner, is to be the basis of the contract be *16 Q. B. Div. 727. tween me and the said society; and if any untrue aver- A. Charles, Q. C., and R. M. Bray, for plaintiff. From this it follows that after the insurance company have said that they accept the proposal, and that if the premium is paid they will issue a policy, although there is no change in the circumstances, and all that has happened is that they alter their mind, yet they are not bound to accept the premium. I do not shrink from saying that in my view of insurance law there is no contract in such a case binding them to accept the premium. If so this action fails, because tender is only equivalent to payment if the person to whom the money is offered is bound to accept it. If the premium is offered and accepted there is at once an insurance, and the year for which the insurance runs commences then, and if the policy is drawn up properly that will appear in it. But then there is another view short of that. Supposing it to be true that after all the terms are agreed on, and the premium is offered, the company are bound to accept it, when does the contract of insurance commence? It commences at the time when the premium is offered, because in this case tender would be as good as payment. There is no insurance before that, but only a contract to the effect, "If you will offer the premium we will insure." The only consideration any one can suggest for this contract is the trouble the man takes to bring his money. What then happens with regard to any previous examination or declaration of health, neither of which is material unless the company insist upon it. This is material, that the person to be insured should not conceal any material fact, and that his statements, if he makes any, should be correct. In this case the declaration was a representation which was true at the time it was made. In insurance law that is not the material time, but the material time is the moment when the insurance is made, and the representations ought to be true then. If there has been a material change there ought to be an alteration of the representation, and the ground for entering into the contract is altered. In this case the ground of the contract to give an insurance being changed, it was not binding on the society at the time of the tender of the premium, and they had a right to say "the circumstances are altered, therefore we will not insure, even though if the circumstances had been altered, they would have been bound by their contract. It seems to me therefore that the appeal fails. In my opinion however the real ground for our decision is that the negotiations before the time when the policy is effected are mere statements of intention, and that till the insurance company accept the premium they have a right to decline to accept the risk. not LORD ESHER, M. R. This seems to me to be a very important case in insurance law, and at the beginning of it I was much taken with the ordinary proposition that a proposal and an acceptance of that proposal make a contract. Whether that is so or not depends on whether the one was meant to be a proposal, and the other an acceptance by way of contract, and we are bound to look further and see what was the subject-matter. What is the contract of life assurance? It is this, "Taking the life to be good at the commencement of the risk I insure that life for a year at a certain premium." From this it is apparent that the material moment for the agreement as to the state of health is when the risk commences, that is, at the beginning of the year, for it is not denied that the agreement is only for a year. Now it is said that before that year commenced there was a binding agreement to insure. But is it possible to say that when parties are discussing beforehand the conditions of the risk they mean to treat what they then say are the existing facts as binding them when the moment to make the contract arrives? No one can bind himself as to the state of his health a short time hence, and a man who makes a statement as to his state of health cannot mean to be bound as to what it will be a month hence, neither can the person to whom the statement is made be taken to rely on it further than as it may guide him in accepting the insurance or not. These considerations show that all these statements which are made preliminary to the moment of insurance are not considered by either party as contractual statements, but as expressions of intention on the one side to insure, on the other to accept the risk. That seems to me to be the view at which we must arrive looking at this as a business transaction. Now there is no case that supports affirmatively this view, but it is supported negatively by the fact that during all the years that life insurance has been known and practiced, there is no case in the books or known to any one in which an action such as this has been main through Walters, that his proposal had been accepted tained. These considerations are conclusive to my mind that what was said was preliminary to the contract of insurance, and was never intended by either party to be a contract in itself. LINDLEY, L. J. This action is for damages for breach of a contract to grant a policy on the life of Canning, and the question is whether the Sun Office was bound to issue a policy. This turns, it appears to me, on the question whether the office was bound to accept the premium which was tendered during the life-time of Canning. It is said the office was so bound by contract, and we have to investigate this and see how it is made out. On the 8th of December Canning sent a proposal to the office. In that there was nothing about the premium that would be payable; with that document was a declaration of the truth of certain statements made by Canning, which was to be the basis of the contract. That was followed by the usual reference to friends, and an examination by the medical officer of the office. On the 14th of Decem ber the office made a communication to Canning, subject to payment of a certain premium. I pause here for a moment to consider the effect of these negotiations. It was urged on the part of the plaintiff that there was then a complete contract binding the office on payment or tender of the premium to issue a policy of insurance. It is true that there had been an acceptance of Canning's offer, but he had not at this time assented to the company's terms; aud until he assented to them there was no contract binding the company. The company's acceptance of Canning's offer was not a contract but a counter offer. Subsequently the premium was tendered, and I think there would be considerable difficulty, if there had been no change in the risk, in saying that the company, under such circumstances, might decline to accept the premium and issue the policy. In the case supposed the counter offer would be a continuing offer; the tender would be an acceptance of it, and the company would be bound to issue the policy. But the case supposed is not the case we have to deal with here, because another element is introduced by reason of the material change in the risk in the interval between what I have called the counter offer and the tender of the premium. If Canning had tendered the money and had not informed the office of the alteration in the character of the risk, he would have been attempting to take advantage of an offer intended to cover one risk in order to make it cover another risk not known to the office. In other words, if he had paid the money without disclosing to the office the fact that his statements, which were true when he made them, were so no longer, he would have done that which would have been plainly dishonest. But that was not done, the alteration was disclosed, and the company refused to take the risk. I think they were perfectly justified in so refusing. It comes to this, there was no contract before the tender; and the risk being changed the company's offer could not fairly be regarded as a continuing offer which Canning was entitled to accept. His tender was in truth a new offer for a new risk which the company were at liberty to decline. It appears to me therefore that this action fails, and the appeal ought to be dismissed. LOPES, L. J. This is an action brought by the plaintiff, as the legal representative of a deceased person who endeavored to effect an insurance with the Sun Office, to recover compensation because they had not, in accordance with an agreement they made, issued a life policy. The plaintiff relies upon the proposal made by the deceased, and the acceptance by the office. I think however that these amounted only to negotiations. All that was done was preliminary and with a view to an insurance to be thereafter made,and no final contract between the parties was intended until the premium should be paid. I am fortified in this view by finding that in the acceptance itself is the declaration that there is to be no insurance till the first premium is paid. It appears to me that the true meaning of this is that until the premium is paid no liability at all is to attach to the office. That being so when the premium was tendered, the office were justified in refusing to accept it on the ground that no binding contract existed which compelled them to do so. They were entitled to say that what bad taken place between the parties amounted to a negotiation only, and that as there had been a change in matters materially affecting the risk, they had a right to withdraw their acceptance of the plaintiff's offer. If there had been no change of circumstances, and the premium had been duly tendered, I might have a difficulty in saying that the office could have refused to issue a policy, but that question does not arise, and I do not wish to express any opinion about it. Appeal dismissed. Solicitors for plaintiffs, Crowdy, Son and Tarry. Solicitor for defendants, Ford, Ranken Ford, and Ford. CARRIER-DELAY BY STRIKERS. NEW YORK COURT OF APPEALS, JUNE 22, 1886. GEISMER V. LAKE SHORE AND MICHIGAN SOUTHERN R. Co.* Where delay in delivering freight is caused not by the refusal of employees on a strike to return to work, but by the unlawful and violent conduct of the strikers, after they have abandoned the service of the company, defendant is not liable. APPEAL from order of General Term, fifth depart ment, denying motion for a new trial, and from the judgment ordered for plaintiff on the verdict. Upon the trial of this action there was evidence proving or tending to prove these facts: On the 21st day of July, 1877, the plaintiff delivered to the defendant, at Toledo, in the State of Ohio, a large number of cattle and hogs, to be transported, within a reasonable time, over its railroad, to Buffalo in this State, there to be delivered to him. The usual and ordinary time for the transportation of such freight between the two places named was about twenty-five hours. The plaintiff's cattle and hogs were started on a train of defendant's cars for their destination, and were carried with reasonable dispatch and without delay so far as Collingswood, in the State of Ohio, where they arrived on the 22d day of July. Collingswood was a place where it was usual and customary for the defendant to stop all its stock trains for the purpose of changing engines, engineers, firemen and crews employed on such trains, and the train on which plaintiff's stock was shipped, stopped there for the purpose of making such usual changes. When plaintiff's stock arrived there the defendant was willing and desirous to proceed and continue the carrying of the stock to Buffalo, and had all the neces sary cars, locomotives and employees to make up and manage the train; but it was prevented from proceeding immediately, and accomplishing in the usual time the carriage of the stock to its destination in consequence of a portion of its employees striking and refusing to run the train, or to permit others so to do. A few weeks prior to the arrival of the plaintiff's stock at Collingswood, the defendant made an order reducing the pay of its employees engaged on its train, and at its stations and shops ten per cent, and by reason of such reduction many of the employees refused to work on the defendant's trains or to permit others to work who were willing to, and many of the firemen and brakemen who had been in the defendant's employ took forcible possession of some of the defendant's engines, and some of the fixtures of the engines and detached engine hose, let the water out of the engine boilers, uncoupled cars, carried away and hid some coupling pins and links, placed the engines in the round-house and barricaded the same. The persons who took such forcible possession of the property of the defendant were a great number (over two hundred persons) the greater portion of whom were firemen and brakemen who had been in the employ of the defendant up to the time of the strike on the 22d day of July, and were the controlling element of the force which prevented the moving of defendant's trains at Collingswood. Such persons boldly and defiantly refused to obey any of the orders of the defendant's officers, and refused to permit any of the defendant's trains to be moved, and threatened persons who should attempt to move any of the trains or cars until the demands of the strikers should first be complied with. The officers of the defendant made various attempts *34 Hun, 50, reversed. to move trains from Collingswood, and placed on the trains employees who were willing to work and operate the same; but they were prevented from moving the trains by threats, and were compelled to desist from all attempts to move them from Collingswood. During all the time from the day the stock arrived at Collingswood until it was finally reshipped, the officers of the defendant exerted themselves with great diligence to move the trains, and to induce and persuade those who, up to that time, had been in the employ of the defendant, to return to their places on the trains, and to permit the defendant to have the use and control of its property, the railroad and its fixtures; but they openly declared and announced that they would do so only upon the condition that the order of the defendant reducing the wages of the employees should be annulled, and the wages restored as they were before the reduction: they also demanded the annulling of the rule requiring certain qualifications of engineers, and the removal of the general master mechanic, and that no one should be discharged for taking part in the riot; and the strikers would have disbanded and the late employees of the defendant would have promptly resumed their em. ployment with the defendant, and would have ceased all force and violence to the defendant, its officers and employees and would have allowed and restored to the defendant the full and complete control of all its property and its railroad had their demands been acceded to; but the defendant refused to accede to the demands. There was a sufficient number of other competent workmen willing and ready to take the places of the strikers at such reduced wages, who could at any time have been so employed, and who would have moved defendant's train, except for the violent opposition of the strikers. After the strike had continued for a period of eleven days it ceased, and all the late employees of the defendant, who were engaged in the strike, resumed work on the defendant's cars, and the defendant was restored to the possession of all its property and railroad and fixtures so taken possession of by the strikers; but the wages were not restored nor other concessions made by the defendant. If it had not been for those who had been in the employ of the defendant up to the time of the commencement of the strike, the defendant could have overcome the resistance, and transported plaintiff's stock in due and ordinary time. As soon as the strike ceased, the defendant transported the plaintiff's stock to Buffalo, and there delivered it to the plaintiff, who took possession of it. The plaintiff suffered great damage from the delay, to recover which this action was commenced. The trial judge, among other things, charged the jury that if the strike had its origin in the minds of the defendant's employees, that it began with them and terminated when they were ready to end it, and that strangers, outside parties, joined them through sympathy or other cause, the defendant is not exempt and the plaintiff may recover damages;" "that whether the delay in bringing forward this train arose because the defendant's engineers, brakemen and firemen were on a strike, declining to work, and the company had not men to carry on its business, or that they would not do it or suffer others to do it, even though they were active in their resistance, although they committed violence if they were the servants or employees of the defendant, nevertheless it is imputable to the defendant in this case;" "that if the defendant's employees were willing to carry on the business, and other men, which have been mentioned, sought to prevent those who were willing to work from carrying on its business and continuing their labor, and that it was effective and sufficient to prevent those who were willing from going in the employ of the company, and this combination was strong and powerful, strong in its moral position, strong in its physical power to overmaster and control the situa tion, and prevent the company from bringing out its engines and starting out the trains, and so extended from Cleveland to Buffalo, embracing Erie, it is no excuse for the delay, because if the strikers were the defendant's employees, they represented the defend. ant; they were its servants and agents, and their acts were the acts of the corporation." To all these portions of the charge defendant's counsel excepted; and he requested the judge to charge, "that if the jury believe from the evidence that the cattle were delivered in Buffalo at as early a day as was possible under all the circumstances in the case, they will find for the defendant;" "that if the jury believe from the evidence that on and after the 21st day of july, 1877, the railroad tracks, depots and rolling stock of the defendant were taken forcible possession of by a body or bodies of armed men, among whom were some of its employees, and that they continued to hold possession thereof by force of arms for several days, by reason of which the delivery of plaintiff's stock at Buffalo was delayed until August 4, 1877, the plaintiff cannot recover;" "that if the jury believe from the evidence that under the circumstances the defendant could not have moved the stock from Collingswood to Buffalo previous to the time it did without endangering life and property, then that the defendant was justified in delaying the delivery of the stock until it was actually delivered;" "that if the cause of the detention of the plaintiff's stock arose from forcible resistance of the late employees of the defendant, the defendant having at all times sufficient force of faithful employees to have operated and run the defendant's road had it not been for such forcible resistance, then the plaintiff cannot recover;" "that if any of the employees of the defendant joined the strikers, they ceased from that time to be employees of the company, and the defendant is not in any way responsible for their acts." The judge declined to charge each of these requests, and the defendant's counsel duly excepted. The jury rendered a verdict for the plaintiff. The defendant appealed to the General Term, and from affirmance there to this court. D. H. McMillan, for appellant. A. Moot, for respondent. EARL, J. We are of opinion that the learned trial judge fell into error as to the rules of law of vital and controlling importance in the disposition of this case. A railroad carrier stands upon the same footing as other carriers, and may excuse delay in the delivery of goods by accident or misfortune, not inevitable or produced by the act of God. All that can be required of it in any emergency is that it shall exercise due care and diligence to guard against delay, and to forward the goods to their destination; and so it has been uniformly decided. Wibert v. New York & Erie R. Co., 12 N. Y. 245; Blackstock v. New York & Erie R. Co., 20 id. 48. In the absence of special contract there is no absolute duty resting upon a railroad carrier to deliver the goods intrusted to it within what, under ordinary circumstances, would be a reasonable time. Not only storms and floods and other natural causes may excuse delay, but the conduct of men may also do so. An incendiary may burn down a bridge, a mob may tear up the tracks or disable the rolling stock or inter |