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[Vol. 107. and if it be true that the motorman's duties were such that he was required at all times to look in front of the car, then the appellant should have required the conductor or some one on the rear to observe that, and if a collision were about to occur, signal to the motorman to stop," and although that case was determined by a divided court, yet the two dissenting judges concurred in this view as to the extent of the defendant's obligation. It is to be observed, however, that the plaintiff in the Suse case was a passenger and the court was discussing the duty of a street railroad company toward a passenger and not toward a traveler upon the street. In my own opinion, in view of the well-known fact that the rear of a street car in rounding a curve necessarily swings out some little distance from the track on the outer edge, it is extending the obligation of street railroad companies too far to impose upon the conductors of their cars the duty of warning persons upon the street against the danger of collision with the rear end after the body of a car has passed in safety.

Even if we assume, however, that a more stringent rule is asserted in Suse v. Metropolitan Street R. Co. (supra), I think that the complaint in the present case ought to have been dismissed by reason of the plaintiff's failure to prove the absence of contributory negligence on his part. In Garvey v. Rhode Island Co. (58 Atl. Rep. 456) the plaintiff, according to her complaint, had taken a position on the street where the swing or overhang of the car came in contact with her person; and the Supreme Court of Rhode Island held as follows: "Every person who is of sufficient intelligence to be capable of being left alone in the streets must be presumed to take notice of the obvious fact that the body of a street car, in rounding a curve, must necessarily swing out some little distance from the track on the outside of the curve. And for one to place himself within reach of the swing or overhang of a car while it is in motion is as much a bar to his recovery in an action against the company as though he had negligently placed himself in front of a moving car and been injured thereby." In Widmer v. West End Street Railway (158 Mass. 49) the plaintiff, while standing near a street car track waiting for a car to go by, was struck on the right temple by the handle on the rear dasher of the car as it went around a corner; and the Supreme Judicial Court of Massachusetts held that there was no reason why the driver should not drive past the plain

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SECOND DEPARTMENT, JULY, 1905.

tiff and around the corner, for he had no reason to suppose that she would come so near the rear of the car as to be struck when it went by. In Riddle v. Forty-second St., etc., R. Co. (173 N. Y. 327) the Court of Appeals held the plaintiff's intestate to have been guilty of contributory negligence, because while working in a trench at a point where there was a curve in the tracks he neglected to lean back at a safe distance, as he might have done, but raised himself and brought his face so near to the car as to come in contact with the step. "This was his own act," says Judge HAIGHT, writing for the court, and we think it was contributory negligence on his part. He appears to have been an intelligent man, and, as we have seen, was the foreman in charge of the work. He knew that the trench was at the point where there was a curve in the tracks around which the cars ran into Tenth avenue, and that in rounding the curve the rear of a car would be thrown a greater distance from the track than the side of the car when running upon a straight line."

I do not see how the plaintiff in the case at bar can be acquitted of contributory negligence unless we disregard the principle applied in these decisions. The learned trial judge, in denying the defendant's motion for a new trial, expressed the opinion that if the plaintiff had been so familiar with the situation at Madison avenue and Forty-second street as to fully appreciate the risk he was taking, he ought to have been nonsuited for his contributory negligence; but he thought the case was properly left to the jury inasmuch as they might imply from the evidence that he was not thus familiar with the locality. I cannot concur in this view. The plaintiff's own testimony shows that he was as fully acquainted with all the circumstances and the situation as he would have been if he had visited the place a hundred times. The accident occurred at six o'clock on the evening of November 27, 1901. The plaintiff testified that there were lights just as were usual every night; and, although he stated that he had never been at that place at night before, the inference from his testimony is inevitable, from the position of the car when he first saw it and the manner of its approach, that the existence of the curve must have been plainly visible to him, and that the accident was due chiefly, if not solely, to his own imprudence in failing to observe the simple and obvious precaution of stepping back

SECOND DEPARTMENT, JULY, 1905.

[Vol. 107. so as to avoid the rear end of the approaching car as it swung into Forty-second street. He does not say or suggest in his testimony that he was not aware of the fact that the rear of the car was likely thus to swing out in rounding the curve, and I agree with the Supreme Court of Rhode Island that an adult wayfarer upon the streets, apparently in the full possession of his faculties, is chargeable with knowledge of the danger which he incurs under such circumstances.

For these reasons I am in favor of a reversal of this judgment. HIRSCHBERG, P. J., RICH and MILLER, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

In the Matter of the Judicial Settlement of the Account of JAMES KEENAN and Others, as Executors, etc., of OWEN NOLAN, Deceased, Respondents.

Reverend JAMES S. DUFFY, Appellant; NELLIE NOLAN, Respondent.

Will-one legacy "to be expended by him (the legatee) as I have instructed him” and another, to the same legatee, "for his personal use the former is invalid as a trust and cannot be sustained as an individual bequest.

The 10th and 17th clauses of the will of a testator provided as follows:

66

Tenth. I give and bequeath to my friend Rev. James S. Duffy, the sum of Five thousand ($5,000.00) dollars, to be expended by him, as I have instructed him during my lifetime.

"

* * *

Seventeenth. I give and bequeath to my friend Rev. James S. Duffy, for his personal use the sum of One thousand ($1,000.00) dollars."

Held, that the 10th clause of the will was invalid;

That it could not be sustained as a trust;

That it could not be sustained as an individual bequest to the person named therein, because the 17th clause of the will, in which the testator gave the same person $1,000 "for his personal use" negatived the idea that the testator intended that the previous bequest of $5,000 should, under any circumstances, be applied to the personal use of the same individual.

APPEAL by Reverend James S. Duffy, one of the legatees under the last will and testament of Owen Nolan, deceased, from so much of a decree of the Surrogate's Court of the county of Kings, entered

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SECOND DEPARTMENT, JULY, 1905.

in said Surrogate's Court on the 6th day of May, 1904, as adjudges the bequest to the appellant in the 10th paragraph of the will to be illegal and void.

Herbert T. Ketcham [Joseph E. Owens with him on the brief], for the appellant.

William H. Stryker, for the executors, respondents.

William F. Hagarty, special guardian for Nellie Nolan, respondent.

WILLARD BARTLETT, J.:

This appeal calls for the construction of the 10th and 17th paragraphs of the will of Owen Nolan, deceased. Those paragraphs read as follows:

"Tenth. I give and bequeath to my friend Rev. James S. Duffy, the sum of Five thousand ($5,000.00) dollars, to be expended by him, as I have instructed him during my lifetime.

* * *

"Seventeenth. I give and bequeath to my friend Rev. James S. Duffy, for his personal use the sum of One thousand ($1,000.00) dollars."

The learned surrogate has held that the 10th paragraph is invalid because, while the bequest partakes of the general nature of a trust, the necessary requirements of a trust are not stated. He has also declined to sustain it as an individual bequest because the 17th clause, giving the same legatee $1,000 "for his personal use," indicates that the bequest of $5,000 in the 10th paragraph could not have been intended to go to the appellant individually. The case of Gross v Moore (68 Hun, 412) is cited in support of these

conclusions.

That case is distinguishable, I think, in two essential particulars. The gift there under consideration was not to any legatee or devisee by name, but to the executor of the testator, and concluded with the words, "to be distributed by him, according to instructions given to him by me." This direction amounted to a plain negation of any idea that the executor was to retain for himself the substance of the gift. A distribution was wholly inconsistent with a retention of the property by the executor. No such manifest inconsistency is presented by the language of the 10th paragraph of the will in the

SECOND DEPARTMENT, JULY, 1905.

[Vol. 107. case at bar. If that paragraph stood alone it would not be difficult to hold that an expenditure for the benefit of the legatee himself was contemplated by the testator when he required the $5,000 "to be expended by him, as I have instructed him during my lifetime." It becomes much less easy to adopt this view, however, when the 10th paragraph is read in connection with the 17th, wherein $1,000 is bequeathed to the appellant "for his personal use." These words imply that the $5,000 bequeathed by the previous 10th paragraph was not designed to be applied to the personal use of the legatee, but was intended rather to be received and disbursed by him for the benefit of some other person or persons. Looking at both paragraphs together, it would seem as though the testator had unsuccessfully endeavored to create a trust by the 10th paragraph, and having failed in that purpose, that the bequest has properly been adjudged to be invalid. Indeed, counsel for the appellant do not seek to sustain this bequest as a trust, but they argue that it should be upheld as a gift to the appellant individually.

The substance of their argument on this subject is well summed up by the following extract from their brief: "The two provisions may well have been in effect as follows: 'I give the first gift accompanied by instructions, which are purely precatory, because I would like to have it devoted to a certain purpose, but the gift is not conditioned upon the fulfilment of my request. In the second gift I describe it as for the legatee's personal use because it is not incumbered even by my wish or desire.'" The difficulty which I find in assenting to this construction arises out of the force and effect which it seems to me must be given to the declaration accompanying the bequest of $1,000, which expressly provides that it is designed for the personal use of the legatee. Would it be either natural or appropriate for the testator to insert such a direction if he had intended that the previous bequest of $5,000 should under any circumstances be applied to the personal use of the same individual? I hardly think so. Although the intent of the testator is by no means perfectly clear, and I appreciate that different minds might fairly reach different conclusions upon this question, I am impressed with the idea that the testator intended that the beneficial enjoyment of the larger bequest should go to some one or more persons other than the appellant, or be devoted to some other object than his personal use,