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SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

It all happened in less than two or three minutes. Then a couple of young men passed by, and I asked them to give me a hand. These two young men came and helped me to carry her in; took her in and laid her on my bed." The deceased was soon thereafter moved to a hospital, and died about three weeks subsequent to the injury. No testimony was given to show that the coal hole was either uncovered at the time, or that the cover was not securely fastened, and no evidence other than the declaration of the deceased that her leg had gone down or was in the hole. Mrs. Delaney testifies that she did not look at the hole at the time of the accident. The evidence tends to show that the coal hole, except when used, was kept covered.

From this narration of the evidence it appears that the sole question in the case is whether the declaration of the deceased was sufficient to justify the jury in finding that the coal hole was either open or insecurely covered at the time of the accident, for this was the only charge of negligence made against the defendant. We are of opinion that the declaration of the deceased was admissible in evidence as part of the res gesta, within even the most restrictive authorities. It was descriptive of her condition and situation at the very time she made the statement, and, therefore, contemporaneous. In this respect it is a stronger case than that of Commonwealth v. Hackett (2 Allen, 136), where the declaration was made after the fatal wound was inflicted and when the defendant was absent. The Hackett case is cited with approval in Waldele v. N. Y. C. & H. R. R. R. Co. (95 N. Y. 274). But though the declaration of the deceased was competent evidence, the question still remains whether it alone was sufficient to authorize the jury in finding the fact that the leg of the deceased had fallen through the opening of the coal hole, for I am frank to say that if the evidence was sufficient to authorize a finding of this fact, then it authorized the submission of the question of the defendant's negligence to the jury, because in such case it seems clear (or, at least, the jury might so find) that if the hole had been securely covered the plaintiff would not have fallen in it.

The admissions of declarations as part of the res gesta, and the effect of such evidence, have been the subject of much conflict among the courts and among text writers. Insurance Co. v. Mosley

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

(8 Wall. 397) would sustain a recovery for the plaintiff based on the declaration of her intestate alone. Louisville, New Albany & Chicago Ry. Co. v. Buck (116 Ind. 566) and Pennsylvania R. Co. v. Lyons (129 Penn. St. 113) are to the same effect. But these cases are not authority in this State, and the Court of Appeals in the Waldele Case (supra) has expressly repudiated the doctrine of the Mosley case. The elaborate opinion delivered by Judge EARL in the Waldele case manifests the tendency of the courts of this State to restrict the admission of declarations as part of the res gesta within narrow limits, and receive them only where their admission can be justified on principle.

Declarations admitted as part of the res gesta may be divided into three classes: The first is where they constitute a part of the transaction itself which is sought to be proved; the second is where they tend to qualify, explain or characterize the acts which they accompany; the third is where the declarations are made at the time of the transaction, but relate solely to the acts and conduct of others. The text books and decided cases justify the admission of all these declarations on the same ground as being part of the res gestæ. But it is apparent that, logically and on principle, the admission of declarations of the third class must stand on a different ground from that which supports the admission of the two other classes. If a man, being wounded, calls out, "John has stabbed me," the declaration in no way qualifies or explains the act of the person who stabbed him. In reality testimony to the declaration is pure hearsay, and is admissible in evidence only upon the great improbability that the spontaneous utterance of the instant should be false. However, such declarations being received in evidence as part of the res gestæ, they must be subject to the same rule as applies to other declarations forming part of the res gesta. In Lund v. Tyngsborough (9 Cush. 36, 42) it is said in reference to these declarations: "Such a declaration derives credit and importance as forming a part of the transaction itself, and is included in the surrounding circumstances which may always be given in evidence to the jury with the principal fact. There must be a main or principal fact or transaction; and only such declarations are admissible as grow out of the principal transaction, illustrate its character, are contemporary with it, and APP. DIV.-VOL. XXXVIII.

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SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. derive some degree of credit from it." All the text bocks and authorities (except those cases already referred to which the Court of Appeals refused to follow) assume, if they do not necessarily decide, that there must be a principal fact established by other evidence before declarations can become competent as part of the res gesta. I have not been able to find a case (with the exceptions noted) where the principal fact has not been proved by direct evidence. In the present case, in one sense it may be said that the principal fact or res was the accident to the plaintiff; but this view is erroneous. The question in the case is the liability of the defendant, and in reference to such liability the principal fact or res is whether the defendant left the coal hole open or improperly covered. We concede that if it was proved by other evidence that the coal hole at the time was open, then the declaration of the plaintiff's intestate that her leg was in it would be sufficient to carry the case to the jury, even if none of those present were able to see that the leg was actually in the hole. But the deceased herself may at the time have been mistaken as to what really caused her to fall. We think it would be dangerous to allow her declaration to prove a fact which, if it existed, would be in the observation of all other persons present, and to which no witness is called to testify.

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The judgment appealed from should be affirmed, with costs.

Judgment unanimously affirmed, with costs.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

38 403

WILLIAM AUGUSTUS SPENCER, CHARLES G. SPENCER and WOLCOTT
G. LANE, Individually and as Trustees, etc., of LORILLARD
SPENCER, Deceased, and the Said WILLIAM AUGUSTUS SPENCER and
CHARLES G. SPENCER, as Surviving Executors, etc., of LORILLARD
SPENCER, Deceased, Respondents, v. SARAH GRISWOLD SPENCER,
and J. FREDERIC KERNOCHAN, as Administrator, etc., of JAMES
P. KERNOCHAN, Deceased, Appellants, Impleaded with ELEANORA
L. S. CENCI and Others, Respondents.

Will-$25,000 of net income payable to a widow is not a demonstrative legacy surplus income cannot be accumulated to meet a future deficiency of income such deficiency may be made good from future surplus - -a neglect to deduct commissions from income paid over is a waiver of the right thereto commissions on money spent to improve real property.

The will of a testator provided: Second, if my beloved wife, Sarah Griswold Spencer, survives me, I direct and empower my said executors forthwith, upon my decease, to set apart a certain portion of my real estate which shall be amply sufficient, in their judgment, to yield at all times a yearly net income of twenty-five thousand ($25,000) dollars in gold, which said portion I hereby give and deviso to my said executors, in trust, however, to let, lease, manage and improve and receive the rents, issues and profits thereof, and to pay the net income thereof up to twenty-five thousand dollars ($25,000) per annum in gold, or its equivalent, to my said beloved wife during her life in equal quarterly payments against her receipt in duplicate, and the balance, if any, of said net income to the persons, share and share alike, per stirpes and not per capita, who shall, during her life, be presumptively entitled to take the portion so held in trust on expiration of said trust, as hereinafter in this section provided. And I declare that the provision in this section made for my beloved wife is intended to be in lieu and bar of all dower and thirds, and all other claims on her part against my estate."

Held, that the provision in favor of the widow was not capable of a construction which would make it a demonstrative legacy of $25,000 a year;

That the testator's intention was that the widow should receive in the aggregate $25,600 multiplied by the number of years which she might live, so far as the rents and profits of the trust estate should produce that sum; and that, hence, in case the net income of the rents and profits did not amount to $25,000 in any one year, such deficiency should be made good out of the surplus, if any, of succeeding years;

That the trustees had no power, however, to retain the surplus in any year as security against a possible deficiency in succeeding years, as such a course would amount to an accumulation of the rents and profits of real property in violation of the statute upon that subject;

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38 403

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38 403

d57 504

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60 445

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. That the provision contained in the will directing the trustees to divide the surplus income among the persons presumptively entitled to the corpus of the trust estate, did not evince an intent on the part of the testator to make such persons the special objects of his bounty, as the statute, in the absence of any disposition thereof by the will, would have disposed of the surplus in the same manner that it was directed to be disposed of by the will, and as such pro vision was doubtless inserted to avoid the appearance of intestacy;

That where the trustees for a period of nine successive years had paid over the entire annual income of the trust estate to the beneficiaries, and during that period had rendered accounts to the latter in which the trustees made no claim for commissions, their right to such commissions was waived, as the income was the sole fund from which the commissions were payable, and they could not, by paying over to the beneficiaries the amount of the commissions in one year, create a charge or lien there for on the income of the beneficiaries in future years.

Semble, that an unintentional error, resulting in an overpayment to the beneficiaries in one year, might be corrected in the next;

That the trustees were not entitled to commissions upon moneys expended in improving the real estate held in trust upon the ground that, the remaindermen being entitled to the corpus of the trust estate at the expiration of the trust term, the trustees would not receive commissions on such investment; as, under the will, the trustees were empowered to sell the realty, and should they do so they would receive full commissions on the sum realized on the sale, which would include the amount of any improvements made thereon from the personalty.

Quare, whether, at the expiration of the trust term, the trustees might not have a lien on the real estate for their commissions on the moneys expended in improving such real estate.

APPEAL by the defendant, Sarah Griswold Spencer, from so much of a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of New York on the 14th day of July, 1898, upon the report of a referee, as provides : "And it is further adjudged that the question of construction of the will of said Lorillard Spencer, deceased, presented by the complaint herein, as to whether it is right and proper for the plaintiffs to retain any portion, and if so, what portion of the net income of the trust estate held by them under the second article of the said will for the benefit of Sarah Griswold Spencer and others, and remaindermen, in excess of the annual sum of twenty-five thousand dollars, in order to provide for a possible future deficiency in said net income, and also whether, if the net income of said trust estate in any year, together with such

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