his claim, attaching to his proof | ties must be deemed to have submitted the question of fact, if any, to the court, and waived the right to go to the jury. 43 N. Y., 84. The evidence being such that a verdict for defendants could have been sustained, the direction of the court stands in the place of a verdict of the jury; that the unauthorized sale of the stock was a conversion, but did not constitute such a fraud as is contemplated by the bankrupt act. 77 N. Y., 427; 78 id., 303. Nor, under the circumstances, was the insolvency of the defendants at the time of the sale conclusive evidence of a fraudulent intent. an account purporting to have been rendered to him by defendants, commencing February 28, 1878, and brought down to August 25, 1878, and showing a balance then due him of $5,902.53, which amount he claimed to be owing him by defendants, This account does not show any considerable amount to plaintiff's credit July 1, 1878, when the stock in question was bought, and the state of the account between the parties at that time was not otherwise shown. Whether the stock was ever actually in defendants' possession or was bought on a margin or hypothecated does not appear. Plaintiff claimed that the sale of the stock by defendants was a fraud which brings the case within the exception of the bankrupt law, U. S. R. S., § 5117, that no debt created by the fraud or embezzlement of the bankrupt shall be discharged by proceedings in bankruptcy. No request was made to go to the jury, but both parties requested the court to direct a verdict. The court directed the jury to find a verdict for defendants. Edward M. Shepard, for applt. J. Warren Lawton, for respt. Davidson. Will Man, for respt. Jones. Held, No error; that the evidence did not conclusively prove the fraud alleged so as to entitle plaintiff to a direction of a verdict in his favor, but at most raised a question of fact which might have been submitted to the jury; that under the circumstances both par Judgment of General Term, affirming judgment on verdict directed for defendants, affirmed. Opinion by Rapallo, J. All concur. DEEDS. POWERS. A deed to one L., from her father-in-law, pur- This is an appeal from a judg- | advancement. L. died without ment of the General Term, entered having transferred the property, upon a submission of a controversy leaving her surviving one child, without action, and requiring de- under the age of fourteen years, a fendant to specifically perform a grand-son of the grantor, her huscontract for the purchase of cer- band, the grantor's son, having tain real estate. died before her. By her will, after certain bequests, she gave and devised the residue of her estate to her son, "in fee, to his own use and benefit forever." It appeared that the premises in question were conveyed to plaintiff's grantor by the executor of L.; that L. derived title to said premises through two deeds from her father-in-law, De P., the first of which, after describing the premises, declares that the conveyance is made by way of advancement, to be charged against the share of the grantee's husband in the estate of the grantor. The granting part of the deed purports a conveyance in fee. It is followed by a declaration that the deed is made to enable the grantee "to sell and convey in fee simple the above premises if she shall desire to do so." The party of the second part then covenants that upon a sale or conveyance of the premises by her, she will cause the proceeds to be invested in good personal securities or improved real estate; "and, at her decease, that the said premises or the principal only, which may be realized by her from a sale thereof, shall be conveyed by her to the children born, and that may be born of her marriage" with the grantor's son and living at the time of her decease or their legal representatives. The second deed, which is between the same parties, contained similar provisions, except the clause stating that the conveyance was made by way of She appointed her father and brother guardians of her son, and appointed her brother executor of her will with power to sell and convey her real estate. Her will was duly admitted to probate. Jacob F. Miller, for applt. Morgan J. O'Brien, for respt. Held, That L. took a life estate only in the premises in question, 3 Johns., 387; 4 Wend., 68; 1 N. Y., 96, 33 id., 593; 44 id., 27, 354; 47 id., 512; 96 id., 164; 6 Peters, 512; that L. having died without exercising the power of sale conferred upon her, and issue having been born to her and the grantor's son, a valid remainder was created in the property conveyed to her which vested upon the birth of such issue. The execution of the power of sale, attempted to be delegated by L. to the executor of her will, did not constitute a valid exercise of such power. The provisions of the deeds do not authorize either of the express trusts permitted by the statute and are, therefore, ineffectual to create such an estate, they do contain authority to do an act in relation to lands which the owner might himself lawfully perform, and there being other persons than the grantee entitled to the benefits, if any there are derivable from the performance of the act, it takes effect as a power in trust. 3 R. S., 7th Ed.. 2188, §§ 74, 95; 36 N. Y., 587; 88 id., 174. This power is general, as it authorizes a conveyance to any alienee (§ 77), but it is neither imperative nor beneficial since its ex ercise is left altogether to the discretion of the grantee and other persons but herself are to be benefited by its execution, § 79, 96, while the absolute power of disposition is vested in the donee. The express directions given in the deed as to the investment of the proceeds and the limitations imposed as to the grantee's authority to control its ultimate destination show that it was not a power to be executed for her sole benefit, and the creation of a fee in the grantee, by implication, is therefore precluded. §§ 81, 85. The power was simply one of trust, its exercise being intended for the benefit of the owners of the ultimate estate as well as for that of the life tenant and could be exercised or omitted at the mere discretion of the donee. Being a trust to sell lands and invest the proceeds, it was purely a discretionary power, the execution of which could not be delegated to another, or restrained or enforced upon the application of any of the parties. Lewin on Trusts, 296; Perry on Trusts, 287, 408; 13 N. Y., 592; 17 id., 42. The power and the trust connected therewith terminated upon the death of the N. Y. COURT OF APPEALS. Hencken et al, applts., v. The U. S. Life Ins. Co. et al, respts. Decided Jan. 20, 1885. In an action to procure the restoration of policies and an accounting on the ground of fraud of defendants' officers in procuring plaintiffs to exchange said policies for new ones containing more onerous conditions, the court found as facts that there was no fraud or misrepresentation, and that plaintiffs secured advantages by the new policies at least equal to those surrendered by them, and had suffered no damage. Held, That in the absence of valid exceptions to rulings there was no question to review. In view of the impossibility of placing a precise pecuniary value on the various provisions of the policies and the wide difference existing among experts in relation thereto, the question whether a policy holder will be damnified by an exchange is peculiarly a question for the parties interested to determine for themselves. Affirming S. C., 16 W. Dig., 44. This action was brought to procure the restoration of two policies of insurance upon the life of H., payable to his wife or children, for $5,000 each, and issued by the defendant, the U. S. L. Ins. Co., in 1859 and 1866 respectively, and for an accounting by said Ins. Co. as to the assets it might possess applicable to said policies, on the ground that a surrender of them in 1872 was induced and procured by said Ins. Co. and its officers through conspiracy, fraud and misrepresentation, and plaintiffs had thereby been induced to surrender dividends due them and said policies, and accept in lieu thereof a life policy for $10,000 containing more onerous conditions than the original policies, whereby he suffered great loss and damage. The trial court found as a question of fact, upon evidence sufficient to sustain such finding, that neither of the defendants was guilty of fraud, conspiracy or misrepresentation in procuring the surrender of said policies. The court below found, upon evidence appearing sufficient to support the finding, that the advantages secured by plaintiffs in the cancellation of their existing indebtedness to the company, and the receipt of a new policy, were at least equal to those surrendered by them, and they therefore suffered no damage. W. I. Butler, for applts. W. H. Ingersoll, for respts. Held, That the alleged injury to plaintiff's rights constituting the sole basis upon which the claim for redress is predicated, and that having been found against plaintiffs as a question of fact, there is, in the absence of valid exceptions to the rulings of the trial court, no question reviewable here. Plaintiffs claimed from the evidence of some experts, which was controverted, and from inferences from the provisions of the policies and the admitted financial condition of the company at the time of the surrender, that they were damnified by the exchange in question. Held, Untenable; that in view of the impossibility of placing a precise pecuniary value on the various provisions of the policies, and the wide differences existing among experts in relation thereto, this was peculiarly a question to be left to the judgment of the parties interested to determine for themselves. Judgment of General Term, affirming judgment dismissing the complaint, affirmed. Opinion by Ruger, Ch. J. All concur. N. Y. COURT OF APPEALS. Lee, respt., v. The Troy Citizens Gaslight Co., applt. Decided Jan. 20, 1885. The absence of contributory negligence on plaintiff's part need not be alleged in the complaint; that fact is involved in the allegation that the injury was caused by defendant's negligence. Requests to charge which assume that there is evidence from which the jury may infer certain facts, when in fact there is no such evidence, are properly refused. In an action for the death of a horse caused by a gas leak, it appeared that defendant's workmen had stopped a leak there an hour or so before; that plaintiff closed the stable, and noticing a smell of gas, examined the meter. The court refused to charge that if plaintiff had reason to believe gas was escaping, knew the danger and left the horse there without providing for the danger, thinking the escape of gas was not sufficient to do any damage, he could not recover. Held, No error; that under the circumstances negligence was not an inevitable and necessary inference. This action was brought to recover damages for the death of plaintiff's horse, caused by the escape of gas from a pipe in plaintiff's stable, which it was alleged had been negligently repaired by defendant's servants. There was sufficient evidence to carry to the jury the question whether the leak complained of was due to the negligence of defendant's workmen in making the requisite changes and repairs. It was claimed that the complaint was insufficient, because it nowhere alleged the absence of contributory negligence on the part of plaintiff. Nelson Davenport, for applt. R. A. Parmenter, for respt. Held, Untenable; that no such separate and direct averment in the complaint was necessary. 6 Lans., 381; 53 N. Y., 654. Substantially, that allegation is always involved in the averment that the injury set out was occasioned by the defendant's negligence. To prove that, plaintiff must show that his own negligence did not cause or contribute towards the injury. 78 N. Y., 483. There was no exception by defendant to the charge as made. Several requests to charge as to plaintiff's negligence were refused, and a sufficient exception taken. Two of these requests assume that there was evidence from which the jury might infer that plaintiff knew that gas was escaping, and with that knowledge omitted natural and necessary precautions. There was no such evidence. Held, That the requests were properly refused. Defendant made a similar re quest, founded not upon actual knowledge, but upon circumstances which it was claimed should have led plaintiff to believe that the gas was leaking. It appeared that the gas pipe had been injured by an accident occurring to the exterior pipe; gas had been escaping at that point all the afternoon preceding the death of plaintiff's horse; defendant's workmen had been notified of the difficulty, and were expected to remedy it. They finished at about six o'clock, declaring that their work was done; an hour or two later plaintiff closed his barn, and he and others. with him, noticing the smell of gas, remarked it, and examined the meter. The judge was requested to charge that "if plaintiff had reason to believe the gas was escaping, and knew the danger of escaping gas, and left the horse there without providing for the danger, thinking the escape of gas was not sufficient to do any damage, he cannot recover.” This request was refused. Held, No error; that the proposition contained in the request to charge could not be alleged as an absolute matter of law because, under the circumstances, negligence was not an inevitable and necessary inference. 71 N. Y., 30. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Finch, J. All concur, except Earl, J., dissenting. |