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fied up as provided in that section. Thism and issues properly presented is given by transcript supersedes the finding as disclos- the trial judge with such fullness as to coring what the evidence tended to prove, so rectly guide the jury in its finding. This was that any formal corrections of the finding in done in the present case. respect to the matters complained of would The defendant contends that the court errbe unimportant as bearing upon the only as- ed in refusing to set aside the verdict, which signment of error touched by them. Powers was against the evidence. v. Connecticut Co., 82 Conn. 665, 670, 74 Atl.

[5] It was conceded that there was a colli931, 26 L. R. A. (N. S.) 405. These correc-sion, and that the plaintiff was seriously intions were material to no other claim of er- jured in consequence thereof. No claim was ror than that the court erred in not setting made by the Connecticut Company that the aside the verdict.

plaintiff was not in the exercise of due care [3, 4] Complaint is made in the appeal that when the accident occurred. The main fact at least seven requests to charge which re- relied upon by the plaintiff as against the lated to the question of proximate cause were trolley company was that the motorman failnot complied with. The whole charge pro-ed to exercise reasonable vigilance in watchceeded upon the theory that it was incumbent ing the movements of the automobile when upon the plaintiff to prove every material al- he knew, or ought to have known, that there legation contained in her complaint by a was danger of a collision. preponderance of the evidence.

The complaint alleged that: The jury were informed that:

“While the servant of the Connecticut Com"She must have satisfied you by a fair pre- pany, the motorman on said car, was propelling ponderance of the evidence that she was in the the same at a dangerous rate of speed for said exercise of due care; that she was not guilty of time and place, and while he was negligent in any act which contributed proximately to her failing to keep a constant lookout for teams injury. Now, if you find that she was acting and vehicles as he approached said corner, and with due care, then she must prove that her in- failed to watch the movements of the defendant juries were occasioned or caused by the negli- Wolven's automobile truck." gence of both the defendants or of one defend- It was conceded that the motorman of the ant. You will consider the case brought here trolley car could have seen the automobile against these defendants separately and together. It may be that one of them is negligent when he was more than 1,000 feet away, and and the other not; or it may be that they are that he could have watched it from that both negligent; or it may be that neither of time until the vehicles came together. them is negligent. So you will consider the case against each of them separately, and then all the

Most of the evidence upon this part of the facts together, in order to determine whether case was conflicting and capable of a differany liability has been proven, and, if so, wheth- ent interpretation, and this issue was pecuer that liability is against both, or against one, liarly within the province of the jury as a and against which one."

question of fact. In speaking of the conduct of Wolven, who

The jury has found for the plaintiff. was in charge of the auto bus, the court said:

The superior court has neard all the evi“He says that if his steering gear had not dence, and denied the motion to set aside the broken down he would have escaped from that place; but I think you should consider, in de

verdict. The defendant now insists that termining his liability, whether he was free from these conclusions are not justified by the negligence in taking his car so near to the trol-evidence, and we are asked to set them aside. ley track in the face of an approaching car be- This we cannot do, unless it appears that fore he tried to steer out. I think that

you the jury could not have reasonably reached must consider all the evidence upon that point to see when he began to edge over towards the decision embodied in their verdict. This the rail, and whether he did not know, or ought does not appear. not to have known, that he was coming into a dangerous proximity to it, considering the fact

There is no error. The other Judges conthat he saw a car approaching. If he was negli- cur. gent in that respect, why I think you would say that that negligence was a proximate cause

(88 Conn. 387) of the injury, notwithstanding that after he

DABOLL V. MOON et al. had got into a dangerous place he failed to es- (Supreme Court of Errors of Connecticut. July cape from it through no fault of his own.”

13, 1914.) The instructions adequately stated the law 1. WILLS (8 647*)-LEGACIES-CONDITIONS upon the material points to which attention RESTRAINT OF MARRIAGE. was directed by these requests, and there While a condition, attached to a legacy, is no foundation for the defendant's criticism in restraint of marriage generally is invaliá that the question of proximate cause was en- legatee shall not marry a certain person, or a

as against public policy, a condition that the tirely ignored in the charge as given. legacy to a widow to divest if she marries, is

Counsel for the defendant requested 15 valid. special instructions. The court, however, did Dig. ss 1533-1538; Dec. Dig. 8 647.*]

[Ed. Note. For other cases, see Wills, Cent. not give any of them, except as they were embodied in the general charge. The court 2. WILLS (8 647*)-LEGACIES-CONDITION

RESTRAINT OF MARRIAGE. was under no duty to notice these requests

The condition of a legacy to testator's son specifically as they were made. It is suffi- to be paid to him on the death of his present cient if the law arising upon the evidence wife, or if he should obtain a divorce from her,

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-Na Series & Rep'r Indexes

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or should become separated from her, or if with- Jesse A. Moon was named as executor and in a year after divorce or separation he should qualified as such, and as trustee under the become married to a good respectable woman, was not contrary to public policy as a restraint provision quoted. He afterwards resigned as of marriage.

executor and trustee, and the plaintiff was [Ed. Note.-For other cases, see Wills, Cent. appointed trustee in his place. Dig. $$ 1533-1538; Dec. Dig. $ 647.*]

Willard B. Moon and his wife, referred to Case Reserved from Superior Court, New in the will, are both living, and he has never London County; Joel H. Reed, Judge.

separated from her by divorce or otherwise, Suit by Charles H. Daboll, as administra- and he has no children. He claims that the tor de bonis non and trustee of the will of condition upon which the testator made the John Moon, deceased, against Jesse A. Moon gift to him of the income of the trust fund and others, to construe the will. Case re

depend was illegal as against public policy, served from superior court. Superior court as encouraging a separation by him from his advised to render judgment that the bequest wife, and therefore void, and that the gift of was not violative of public policy or good he is entitled to it as it accrues. .

the income was therefore absolute, and that morals.

[1] Cases can be found which hold, and perPerry J. Hollandersky, of New London, for haps the weight of authority supports the plaintiff. Abel P. Tanner and Nathan Bel-view, that a gift or legacy made upon a cher, both of New London, for Willard B. condition which constitutes an inducement to Moon. William J. Brennan, of New London, a married person to obtain a divorce or to for Jesse A. Moon.

live separate from the other spouse is void as

against public policy. Conrad v. Long, 33 THAYER, J. The plaintiff is administra-Mich. 78, 79; Hawke v. Euyart, 30 Neb. 149, tor d. b. n. with the will annexed of the estate 46 N. W. 422, 27 Am. St. Rep. 391. So it is of John Moon, who died in 1898, leaving real said are conditions in restraint of marriage. and personal estate and three sons, John H. But the rule in the latter case is qualified, Moon, Jesse A. Moon, and Willard B. Moon. and there are exceptions to it. The condition One half of the testator's estate is given by must be in restraint of marriage generally. the will to Jesse A. Moon upon a condition re- A condition that the legatee shall not marry lating to the son John H., which is now una certain person is valid. A legacy to a widimportant, as the latter died in 1899. The ow, conditioned to divest if she marry, is other half of the estate was disposed of by valid. Chapin v. Cooke, 73 Conn. 72, 46 Atl. the following provisions of the will:

282, 84 Am. St. Rep. 139. Bigelow, in a “Upon the death of the present wife of said note to Jarman on Wills (6th Ed.) vol. 2, p. Willard B. Moon, or if he shall obtain a divorce 49, s. p. 886, says: from her or shall become separated from her, at "If the question were open, there might be the end of a year from said divorce or separa- ground to inquire whether conditions in retion, or if within said year he shall become mar- straint of marriage generally are contrary to ried to a good respectable woman, then in either public policy.” of said events the said Willard B. Moon shall be entitled to and shall receive the income and [2] The present case is not one where the profit from said trust fund after the payment condition is in restraint of marriage, altherefrom of one dollar and fifty cents per week though somewhat akin to it. The separation to said John H. Moon, but if said Willard B. Moon shall ever return to live with his present which it is claimed that the condition in queswife his interest in said trust shall be divested tion tends to promote offers no encourageand he shall not be entitled to receive any of ment to celibacy on the part of the donee. the benefits thereof. It is my will that my The condition rather encourages a new marsaid trustee may if he deem it best use and expend a part of the whole of the principal of said riage, for an early remarriage advances the trust for the benefit of said Willard B. Moon, or time at which the income shall be paid to for any of the purposes of this trust, giving him him if the condition is fulfilled. The marfull power to use his discretion in the management, interpretation and administration of this riage here was a fact at the time the will was trust.

made and went into effect. The gift was to "Upon the death of said Willard B. Moon the vest in the donee upon the death of his wife, trust shall continue for the benefit of said John H. Moon as aforesaid, if he still be living, and upon his divorce from her, or if he permathe funeral expenses of said Willard B. Moon nently separated from her. We are asked to shall be paid out of the same, and if said Wil- say that the condition upon which the legacy lard B. Moon shall have married a good respec- was to vest is void as against the public politable woman as aforementioned, and shall have had issue by her, the income and profit of said cy of this state, and that the result of this trust that would have gone to said Willard shall is to make the gift absolute, so that it vests be expended by my trustee for the benefit of said in the donee without performance of the conissue, but if said John H. Moon be then dead, dition. It is clear from the language of the and in any event upon the death of both Wil. lard B. Moon and John H. Moon, after the pay will that the result claimed would be directment of their funeral expenses said trust shall ly contrary to the expressed intent of the tesdivest and whatever of said trust fund then be tator. He did not intend that the income remain I give, devise and bequeath to the issue should vest in Willard if he should not beof said Willard B. Moon if have any other than from his present wife and failing them, to said come separated from his wife by her death, Jesse A. Moon his heirs and assigns forever.” a divorce, or in some other way. The cardi

* * *

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

nal rule in the interpretation of wills is to was made. Born v. Horstman, 80 Cal. 452, seek and carry out the testator's intent. 22 Pac. 169, 358, 5 L. R. A. 577; Cowley v. Wolfe v. Hatheway, 81 Conn. 181, 184, 70 Atl. Twombley, 173 Mass. 393, 397, 53 N. E. 886, 645. This rule is in direct conflict with the 46 L. R. A. 164; Coe v. Hill, 201 Mass. 15, 21, one which is urged upon us by counsel for the 86 N. E. 919; Thayer v. Spear, 58 Vt. 327, donee, namely: That as the condition is un- 329, 2 Atl. 161; Ransdell v. Boston, 172 Ill. lawful the law understands that it is impos- 439, 50 N. E. 111, 43 L, R. A. 526; Cooper v. sible of performance, and that this impossi- Remsen, 5 Johns, Ch. (N. Y.) 459. bility is the equivalent of performance. We Where it is possible that the condition may are not required to attempt a reconciliation be legally performed, it will not be presumed between these rules in the present case; the that the testator intended an illegal performconclusion to which we have come upon the ance. The present gift was upon alternative other branch of the case rendering it unneces-conditions, one of which was the death of sary.

Willard's wife. It will not be presumed that Upon the facts appearing in this record it the testator, in the absence of express lancannot be said that the condition upon which guage so directing, intended that his son the income of this trust fund was bestowed should procure his wife's death, was against public policy. It has never been sel admit that, if the wife's death had been the policy of this state as it formerly was the the only condition of the vesting in him of policy of the church to compel people married the income, the condition would have been to each other to continue for life in that re- valid. But the will holds out the same inlation and cohabit together, regardless of ducement to him to procure her death which their inaptitude for such cohabitation, and it does to procure an illegal divorce or sephowever unfitted they may be in disposition aration from her. In Cowley v. Twombley, and temperament to mutually perform the 173 Mass. 393, 53 N. E. 886, 46 L, R. A. 164, duties of the marriage relation. The state supra, where the facts were somewhat simdoes not favor divorces; but it allows them ilar to those in this case, the court said: for several causes, because it believes that “The scheme of the trust no more tended to in. the interests of society will thereby be better duce the son improperly to procure a divorce served, and that its own prosperity will there between himself and his wife, than to induce

him to procure her death." by be promoted. Dennis v. Dennis, 68 Conn. 186, 197, 36 Atl. 34, 34 L. R. A. 449, 57 Am.

Upon the face of the will, therefore, the St. Rep. 95. So, too, the state deems it to be condition upon which the income was to vest in the public interest that husband and wife in Willard was not void, and he has not in some cases shall live separate and apart, shown any facts extrinsic of the will which although not divorced. In 1895, before the compel a construction which will make it will under consideration took effect, a law, void as against public policy. now General Statutes, § 1354, was passed

There was no occasion for the plaintiff as making the marrying or living together as administrator or as trustee to bring this acman and wife of any man and woman, one of tion. There is no one at present to demand whom is epileptic, imbecile, or feeble-minded, the distribution of the corpus of the trust a criminal offense punishable by imprison

estate. The son Willard is claiming only ment in the state prison. This law, as to one the income. The disposition of the corpus of class of persons with whom it deals, was sus- the estate is in no way affected by the validtained as constitutional by this court as legis- ity or invalidity of the condition upon which lation in the interest of the public health. the gift of the income is limited. The only Gould v. Gould, 78 Conn. 242, 245, 61 Atl. 604, question which the plaintiff has now to con2 L. R. A. (N. S.) 531. To condition a gift sider, either as trustee or administrator, is upon the doing of what the state treats by whether Willard is now entitled to receive its legislation as promotive of the public in the income. Before the time arrives for the terest and its own prosperity, or what it re- distribution of the body of the estate there quires to be done in the interest of the pub- may be issue of Willard, either by his present lic health, cannot be against public policy. or another wife, to make their own claims as To make the condition void as against public to its distribution. The only question bepolicy, it must appear from the language of tween the parties now being whether Willard the will alone or in connection with extrinsic is entitled to the income, it could have been facts that the testator in the particular case settled in an action at law brought by Willard in question conditioned his gift upon an il- against the present plaintiff as trustee, and legal divorce or separation. Numerous cases such an action should have been brought, inare to be found which support the view that, stead of bringing the present apparently amiwhere a gift is upon condition that the donee cable suit. shall obtain a divorce or live separate from The superior court is advised to render husband or wife, the condition is valid, when judgment that the condition upon which the it appears from the will in connection with gift of the income to Willard B. Moon is the surrounding circumstances that a legal made is not void as against public policy and divorce or separation was intended, or where good morals. No costs will be taxed in this a separation already existed or a suit for di- court in favor of either party. The other vorce was pending at the time that the will Judges concurred.

(88 Conn. 382)

feet, to be built on Riverside Avenue for the NYSTROM V. BARKER et al.

Barker Auto Co.”; and in its body it pro(Supreme Court of Errors of Connecticut. July vided as follows: "N. E. Nystrom agrees to 13, 1914.)

build garage

for the Barker Auto 1. APPEAL AND ERROR (8 699*)-REVIEW- | Co."

Co.” It was signed by the defendants inNECESSITY OF FINDING OF FACTS.

dividually. The several parts of a charge complained of cannot be considered, in the absence of ed that the contract sued on was that of the

In their first defense the defendants alleg. a finding of facts as required by the rules.

[Ed. Note.For other cases, see Appeal and Barker Auto Company, a corporation, and Error, Cent. Dig. 88 2928–2930; Dec. Dig. S that they signed the same as directors of the 699.*]

corporation, and in its behalf, and not as in2. APPEAL AND ERROR (8694*)-REVIEW-dividuals. FINDINGS.

In their second defense they allege fraud The incorporation in a finding of the entire evidence properly presents the question of a bs means of false representations. directed verdict and that arising upon a motion In a special defense they allege that the deto set aside a verdict, but nothing more, since fendant Mrs. Barker was and is the wife of the Supreme Court cannot find facts from the the defendant Daniel Barker, and had been evidence.

[Ed. Note.-For other cases, see Appeal and married prior to April 20, 1877. Error, Cent. Dig. 98 2910, 2915; Dec. Dig. 8

They also filed a counterclaim, alleging 694.*]

that the contract was intended by both par3. APPEAL AND ERROR (8 1071*)-HARMLESS ties to be one between the plaintiff and the ERROR-INADEQUATE FINDINGS.

corporation, and by way of equitable relief Where the only questions on appeal are claimed, because of the alleged mutual misthose raised by the motions to direct a verdict, and to set aside a verdict for plaintiff, appel? take, a reformation of the contract by the lants are not prejudiced by the inadequacy of addition of the words "Directors of said the lower court's finding of facts.

Corporation" after their signatures. [Ed. Note.-For other cases, see Appeal and To the special defense, the plaintiff replied Error, Cent. Dig. 88 4234-4239; Dec. Dig. & that the contract was made by Mrs. Barker 1071.*]

since her marriage upon her personal credit, 4. CONTRACTS (8 179*)-CONSTRUCTION-PAR

for the benefit of herself, and of her separate TIES.

A contract whereby plaintiff agreed to and joint estate. And also that it was entered build a garage "for the Barker Auto Company," into by her jointly with her husband for the signed by the defendants, who were husband benefit of her estate and their joint estate. and wife, individually, containing no words pur

The issues on the counterclaim were tried porting to bind the corporation, or indicating that the signers acted officially or as agents, to the court and found in favor of the plainwas the contract of its individual signers, and tiff. not of the corporation; the words "for the

No evidence of misrepresentation was beBarker Auto Company" referring to the use of the structure, and not to the capacity of the fore the jury. And no evidence was offered parties signing the contract.

aside from the contract to show that the de[Ed. Note.-For other cases, see Contracts, fendants intended to bind the corporacion, Cent. Dig. $$ 777, 778; Dec. Dig. $ 179.*]

and did not intend to bind themselves in6. HUSBAND AND WIFE (8 162*)-CONTRACTS-dividually. WIFE'S SEPARATE ESTATE.

Two questions only were before the jury: Under Gen, St. 1902, $ 591, providing that actions may be maintained against a married (1) Whether the contract was that of the woman upon any cause of action accruing before Barker Auto Company, or that of the indiher marriage, and upon any contract by her vidual signers. (2) If the contract was that thereafter upon her personal credit for the of the individual signers, whether the marbenefit of her separate or joint estate, a contract by a married woman, married before 1877, riage of Mrs. Barker prior to April 20, 1877, for the construction of a garage for a company prevented her becoming liable upon this conin which she was a director, and which would tract. indirectly increase the value of her stock therein, was a contract for the benefit of herself and

[1] The several parts of the charge comher estate, making her personally liable.

plained of cannot be considered, in the ab[Ed. Note.-For other cases, see Husband and sence of a finding of facts as required by the Wife, Cent. Dig. 88 322, 596, 600, 614, 637- rules. 640; Dec. Dig. 8 162.*]

[2] The incorporation in the finding of the Appeal from Court of Common Pleas, entire evidence properly presents the quesHartford County; Edward L. Smith, Judge. tion of a directed verdict and that arising

Action by Nils E. Nystrom against Mary upon a motion to set aside a verdict; further J. Barker and others. Verdict and judgment than that it cannot serve, since this court for plaintiff, and defendants appeal. No er- has no power to find facts from evidence. ror.

[3] The defendants are not in this instance Kendal M. Pierce, of Bristol, for appel- prejudiced by the inadequacy of the finding, lants. Epaphroditus Peck, of Bristol, for ap- since the only questions in the case are raispellee.

ed by the motions to direct a verdict, and

to set aside the verdict. WHEELER, J. The plaintiff sued upon a

[4] The defendants' first claim, that this building contract entitled “Specifications for contract is that of the corporation, and not Carpenter and Mason Work on Garage 60x99 of the individual signers, is answered by an

*For other cases see samo topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Sories & Rep'r Indexed

inspection of the contract. It contains no 37 Atl. 420, 37 L. R. A. 452, 57 Am. St. Rep. words purporting to bind the corporation, 112; Barlow v. Parsons, 73 Conn. 696, 49 neither is it signed in its behalf, nor do the Atl. 205; Hart v. Goldsmith, 51 Conn. 480; signatures indicate in any way that the and National Bank of New England v. Smith, signers acted officially or as agents, or in-43 Conn. 327. tended so to act. Jacobs v. Williams, 85 It falls within Bidwell v. Beckwith, 86 Conn. 219, 82 Atl. 202, Ann. Cas. 1913B, 900. Conn. 463, 468, 85 Atl. 682, Belden v. Sedg

The words in the heading and body of the wick, 68 Conn. 560, 37 Atl. 417, and Thresher contract that the garage is "for the Barker v. Barry, 69 Conn, 470, 37 Atl. 1064, and Auto Company” refer to the use of the struc-comes clearly under the statute. ture, and to its building. By no possible There is no error. The other Judges conconstruction can the words be construed to curred. refer to the liability imposed by the contract, or to the capacity in which its makers signed.

(88 Conn, 409) There is thus nothing in the body of the FARLEY v. NEW YORK, N. H. & H. R. CO. contract indicating a corporate obligation, (Supreme Court of Errors of Connecticut. July and nothing in connection with the signa

13, 1914.) tures expressive of an agency, or of the offi- 1. MASTER AND SERVANT (204*)-ASSUMPcial character of the signers.

TION OF RISK-FEDERAL EMPLOYERS' LIAIt is not a case of mutual mistake. Nor is

BILITY ACT-OPERATION. it an attempt to hold a principal by show- April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp.

The federal Employers' Liability Act (Act ing its actual interest without attempting to St. Supp. 1911, p. 1322]), did not abolish the secure the release of individual signers. Nor defense of assumption of risk, save where the is it a case of an ambiguous contract leav-carrier's violation of some federal statute, ening the real contract open to proof as some ed to the injury or death of the employé.

acted for the safety of employés, has contributo courts hold.

[Ed. Note.-For other cases, see Master and The plaintiff was entitled to have had the Servant, Cent. Dig. 88 544-546; Dec. Dig. jury directed that the contract upon its face 204.*] was that of its signers, and not that of the 2. MASTER AND SERVANT (8217*)- DEATH OF corporation.

RAILROAD ENGINEER-ASSUMPTION OF RISK, The verdict of the jury upon the issues as who was familiar with engines and tenders and

Where an experienced locomotive engineer framed meant that they found that the con- their proportions, and who, not only by reatract was not signed by the defendants as di- son of his frequent and recent service over the rectors of the corporation, and in its behalf. portion of the road where he was killed by Upon this ground the motion to set aside the coming in contact with an electric wire while

passing from the cab over the top of the tenverdict was properly denied.

der in the course of his duties at an overhead [5] Mrs. Barker owned stock in the Barker bridge, where the wire was necessarily lower Auto Company. For the benefit of that com- than usual, but by reason of special notices pany she and the other directors contracted he assumed, by continuing in his employment,

given him, knew and appreciated the danger, to build for it a garage. Jointly with her

Jointly with her chose risks connected therewith which had rehusband she signed this contract. The build- mained unchanged and unenhanced by any new ing of the garage would add to the assets of and negligent act of defendant; and hence there the company and as a consequence increase could be no recovery for his death.

Ed. Note. For other cases, see Master and the value of her stock interest.

Servant, Cent. Dig. 88 574-600; Dec. Dig. 8 It was thus a contract in fact for her own 217.*] benefit, and for the benefit of her separate estate. It was as much for her benefit as an

Appeal from Superior Court, New Haven addition to her personal chattels, and it can County; William L. Bennett, Judge. make no difference that in the one case there

Action by Eugene F. Farley, administrator, is a direct increase in the quantum of her against the New York, New Haven & Hartproperty and in the other an increase in its ford Railroad Company for personal injuries value.

resulting in the instantaneous death of plainOur statute should not receive a construc- tiff's intestate. From judgment for defendtion which would permit a woman, married ant, plaintiff appeals. No error. before 1877, to buy stock in, become a di- This case was formerly before this court rector of, a corporation, enter upon contracts as reported in 87 Conn. 328, 87 Atl. 990. The intended to increase the value of her invest- undisputed evidence established the following ments in the corporation, and then retain the facts : benefit and repudiate the obligation of her September 28, 1911, the plaintiff's intestate, contract.

John H. Bottomley, met his death while enThis case is one where the wife's contract gaged in his employment as a locomotive enbenefits her and her estate, and was made gineer, and while in charge of a locomotive upon her personal credit. G. S. 1902, § 591. engine hauling an interstate freight train beIt does not fall within the decisions relied tween Stamford, in this state, and New York upon by the defendants.

City. The train was proceeding westward It is not a contract for the benefit of an- at the time, and approaching an overhead other as in Freeman's Appeal, 68 Conn. 533, ) highway bridge in Larchmont, N. Y., known

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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