such an injury as is ground for suit, and where | brakes, and employ every possible means to stop it has no relation to the act causing the injury, the train and prevent an accident, were not violation of it will not be contributory negli- intended to be applied for the protection of an gence. In addition, the violation of a statute unregistered female dog running at large, deor ordinance must be the proximate cause of the clared a public nuisance by section 2853a2. injury." 29 Cyc. 525. Obviously chapter 23 of the Acts of 1899 was not passed for the benefit of the street railway companies operating in Hamilton county. This law was not designed for their protection, and had no relation to the act causing this injury. The caption of the statute indicates that it was passed to "prevent the necessity of fencing lands" in the counties to be affected thereby. It was therefore enacted primarily for the benefit of landowners and those cultivating crops likely to be injured by straying cattle. The relief of street car companies was not within the purview of this legislation. Many courts have held that the existence of stock laws afforded no excuse for the negligent injury of animals by railroad companies. Roberts v. R. & D. R. Co., 88 N. C. 560; Owens v. Hannibal, etc., R. Co., 58 Mo. 387; Schwarz v. Hannibal, etc., R. Co., 58 Mo. 207; Roberds v. M. & O. R. Co., 74 Miss. 334, 21 South. 10; Orcutt v. Pacific Coast R. Co., 85 Cal. 291, 24 Pac, 661; Gulf, etc., R. Co. v. Washington, 49 Fed. 347, 1 C. C. A. 286, and other cases might be cited. In reaching a like result, we prefer to place our decision on the ground that the act of 1899 was not passed for the protection of the plaintiff in error, and that the plaintiff in error cannot predicate a defense of contributory negligence barring recovery upon a violation of said statute. Appeal from Circuit Court, Hamilton Coun ty; Nathan L. Bachman, Judge. Suit by Roy Ford against the Cincinnati, New Orleans & Texas Pacific Railroad Comwhich was affirmed by the Court of Civil pany, resulting in judgment for plaintiff, Appeals, and defendant appeals. Judgments reversed, and suit dismissed. GREEN, J. This suit was brought to recover the value of a female dog killed by a train of the plaintiff in error. There was a judgment below for $25, which was affirmed by the Court of Civil Appeals. The dog was at large, and had not been registered and was killed while on the track of the railroad company. There is no evidence indicating a malicious or wanton killing., [1] Under these circumstances, we think the lower courts were in error, and that there can be no recovery in this case. The provisions of chapter 50 of the Acts of 1901 and chapter 419 of the Acts of 1903 are brought forward into Thompson's Shannon's Code as follows: "It shall be unlawful for any person to allow a dog belonging to him, or under his control, or that may be habitually found on premises occupied by him, or immediately under his control, For the reasons stated, the judgment of the to go upon the premises of another, or upon a Court of Civil Appeals is affirmed. CINCINNATI, N. O. & T. P. R. CO. v. FORD. (Supreme Court of Tennessee. Feb. 27, 1918.) 1. RAILROADS 424- KILLING DOG-CONTRIBUTORY NEGLIGENCE-STATUTE “HIGHWAY." Under Thomp. Shan. Code, § 2853a, providing that it shall be unlawful for any person to allow a dog belonging to him to go upon a highway, etc., the owner of a female dog who allowed her to go upon the track of a railroad where she was killed was guilty of contributory negligence, and could not recover her value; the railroad being a "highway." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Highway.] 2. ANIMALS 2-DOGS AS PROPERTY-COMMON LAW. At common law, dogs were not considered property, the reason given being that they were base in their nature, and kept merely for whim and pleasure. 3. RAILROADS 419(1) KILLING DOG ON TRACK-LIABILITY-STATUTE. Thomp. Shan. Code, §§ 1574-1576, requiring railroads to keep the engineer, fireman, or other person on their locomotives always on the lookout ahead and, when any animal appears on the tracks, to sound the alarm whistle, put down the highway, or upon a public road or street; provided, however, that this act shall not apply to a dog, on a hunt or chase, or on the way to or from a hunt or chase, nor to a dog guarding or driving stock or on the way for that purpose, nor to a dog being moved from one place to another by a person owning or controlling a dog, but the foregoing exemptions shall not apply unless all damages done by dogs therein exempted, to the person or property of another, shall be paid or tendered to the person so damaged, or to his agent within thirty (30) days after the damage is done." Thompson's Shannon's Code, § 2853a. This statute was passed for the protection of persons and property upon highways, roads, and streets of the state, as well as upon the private property of others. It is well settled that railroads are highways. 33 Cyc. 37. In addition to the use of such highways by trains, section men, trackwalkers, and persons intending to become passengers frequently pass along railroad tracks in such a way as to be exposed to dogs that may go The statute was designed to thereupon. keep loose dogs away from such places, and was for the protection of such premises. We have recently suggested in the case of Chattanooga Railway & Light Co. v. Bettis, 202 S. W. 70, that a planitiff, who violated Tenn.) a statute intended for the protection of the defendant he was suing, was guilty of contributory negligence. We think that such is the law; and, inasmuch as the statute above quoted was intended for the protection of railroads as highways of the state to keep dogs off the right of way, the plaintiff, who allowed his dog to go upon such highway unlawfully, must be held to be guilty of contributory negligence barring his recovery, if this suit be treated as one under the common law. If the action be considered as one brought for a violation of the statutory precautions (Thompson's Shannon's Code, §§ 1574-1576), requiring railroad companies to keep the engineer, fireman, or some other person upon their locomotives always upon the lookout ahead, and, when any person, animals, or other obstruction appears upon the road, to sound the alarm whistle, put down the brakes, and employ every possible means to stop the train and prevent an accident, if the suit be treated as one for breach of this statute, recovery must be denied by reason of the provisions of chapter 32 of the Acts of 1907 as follows: "The running at large of female dogs, not registered as hereinafter provided, is hereby declared to be a public nuisance, and that all persons owning or keeping any female dog three months old or over in this state, are hereby required to report same for registration to the circuit court clerk of the county in which the female dog is kept." Thompson's Shannon's Code, § 2853a2. The object of our statutes heretofore referred to were to prevent injuries to persons, animals, or other property on the tracks of railroad companies, and also to prevent injuries to passengers on the railroad trains by reason of collisions with such obstructions. A collision with an ordinary dog would not menace the safety of the passengers on a train, and there is no reason to observe the On statutory precautions for this reason. a like ground it has been held unnecessary to take statutory precautions to avoid a collision with a goose. Nashville, etc., R. Co. V. Davis (Tenn.) 78 S. W. 1050. In Citizens' Rapid Transit Co. v. Dew, 100 Tenn. 317, 45 S. W. 790, 40 L. R. A. 518, 66 Am. St. Rep. 754, this court held that a dog was property, and there might be a recovery for its negligent killing by a street railway company. In Fink v. Evans, 95 Tenn. 413, 32 S. W. 307, the court held that the statutory precautions must be observed with reference to dogs on railroad tracks. Both the cases just referred to, however, were decided prior to the act of 1907. [2] At common law dogs were not considered property, the reason given being that they were base in their nature, and kept merely for whim and pleasure. Citizens' Rapid Transit Co. v. Dew, supra. dogs are property, yet in terms it declares that an unregistered female dog, when at large, is a public nuisance. [3] We cannot think that it was ever intended that the rigid requirements of sections 1574-1576 of Thompson's Shannon's Code with reference to the duties of railroad companies as to obstructions on their tracks were intended to be applied for the protection of a public nuisance. This court has in repeated decisions declined to extend these statutory provisions for the protection of employés of the railroad companies. Certainly these outlawed dogs cannot be included as beneficiaries of such statutes. The judgments of the lower courts will be reversed, and this suit dismissed. WINTERS et al. v. MARCH et al. (Supreme Court of Tennessee. March 23, 1918.) 1. TRUSTS 60-DURATION. The duration of a trust depends upon the and when such purposes purposes thereof; have been accomplished, the trust ceases. 2. PERPETUITIES ~4(15) — TRUSTS — TERMI NATION. A will leaving the residuary estate in trust to the firm to which a testator belonged as trustee "for my said wife and three children, share and share alike, the income derived therefrom by said trustees to be paid over to my said wife and children as their necessities demand," and providing that if it should be unnecessary to encroach upon the income, then such income was to be invested, but not providing for any devise over, created a trust which would cease as to each beneficiary at death; each devisee being entitled to receive a portion of the income from his share as his necessities might demand, and after the death of the beneficiaries the share of each would go to his or her devisee, distributee, or heir, and therefore the bequest was not void, creating a perpetuity. 3. WILLS 601(5)-MERGER OF ESTATES. As the will created an estate in fee in the widow and children, there was no remainder in which the life estate could merge. FENTRESS, J. This cause involves a contest over the validity of a trust created by the sixth item of the will of G. W. Winters, deceased. The bill was filed by the widow and children of the testator against While the act of 1907 does not deny that his grandchildren, who are all minors, and W. F. Hardison, one of the trustees named the event that their condition is such that it is in the will. The chancellor adjudged the trust void, and the Court of Civil Appeals sustained his decree. This court granted the writ of certiorari to that court, and the cause has been argued here. The case is presented upon an agreed statement of facts, in which it appears that the deceased was survived by his widow, two sons, and one daughter. It is shown that by successful trading and frugality he had accumulated real and personal property of the value of approximately $250,000, and had effected upon his life policies of insurance, payable to his estate, for more than $50,000. The testator also left life insurance payable to his widow for $10,000, and to each child for $5,000, which amounts have been paid to them. unnecessary to encroach upon the income there- The pertinent portions of the remainder of the will are as follows: * "7th. I give and grant unto my executor, sell any and all of the real estate conveyed to Jesse T. Winters full power and authority to me for the firm of Winters & Hardison, and I also authorize and empower and direct my executor to sell any real estate belonging direct that W. F. Hardison act as general manto me individually as my residuary estate but ager and adviser of my said executor in disposing of said real estate held by me for said firm of Winters & Hardison, and also the property owned by me individually." "8th. It is my will and I direct that the firm of Winters & Hardison continue as under the contract of copartnership existing between W. F. Hardison be general manager of said busiF. Hardison and myself, and that the said W. ness. "Last: I nominate and appoint my son, Jesse testament, and nominate and appoint W. F. Hardison general manager of the firm of Winters & Hardison, and also general manager of the trust fund left to the firm of Winters & Hardison, trustees, under item 6 of this my will, and also appoint him as advisory trustee and general manager of my residuary estate.' It is contended that the sixth provision of criticism appears in the brief of counsel for the will creates a perpetuity. The following complainants: At the time of his death the testator was a member of the partnership of Winters &T. Winters executor of this my last will and Hardison, dealers in securities and real estate in Nashville; the junior member of the firm being W. F. Hardison. The written articles of partnership provided that the firm should not be dissolved by the death of either party, but that the representatives of the partner dying should designate some one to take the place of the deceased partner, and that the partnership should continue under the firm name until the expiration of the period of five years provided in the articles of partnership. After the death of the testator, his son Jesse T. Winters, who had theretofore been employed by the firm, by the consent of all of the parties interested, was designated to the place of the testator, and the partnership has since continued under the firm name. By item 1 of the will the testator provided for the payment of his debts and funeral expenses, which are shown to have been small. By item 2 he devised his residence to his wife for life, and at her death to his son Jesse T. Winters for life, and at his death to his children. By items 3 and 4 he devised to his other son and daughter each a house and lot for life, and provided that at their death their children should have the lots, respectively. By the fifth item of his will the testator repeats that the above-mentioned properties, devised to his children, are for their lives, and at their death are to go to their children, and in the event any child shall die without issue the property so devised to such child shall go to the survivors, and at their death to their children. The sixth item is as follows: "All the rest and residue of my estate of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, real, personal or mixed, I leave in trust to the firm of Winters & Hardison as trustee for my said wife and three children, share and share alike, the income derived therefrom by said trustees to be paid over to my said wife and chil "There is no provision in this item under which the grandchildren would come into the estate on the death of the children. There is no time fixed for the termination of the trust, but all time, the corpus of the estate, and if the it is made the duty of the trustees to hold, for widow and children do not need the income, then this income is to be invested, becoming a part of the corpus. There is no provision that it shall cease on the death of the trustee, and if the trust is valid it will be the duty of a court of equity to appoint a trustee in the place of the dead one so that he could continue the trust. We would thus have certainly the corpus of this estate, if not the income, tied up indefinitely." [1] The duration of a trust depends upon the purposes of the trust. When the purposes have been accomplished the trust ceases. In the leading case of Ellis v. Fisher, 35 Tenn. (3 Sneed) 231, 65 Am. Dec. 52, this court in an opinion by Judge McKinney, in treating of the duration of trusts, said: "The established doctrine is, that trustees take exactly that quantity of interest which the purposes of the trust require. The question is not, whether the testator has used words of limitaof inheritance; but whether the exigencies of tion, or expressions adequate to carry an estate the trust demand the fee simple or can be satisfied by any, and what less estate. And, therefore, a devise to trustees may be either restricted or extended, as the nature and purposes of the trust require." Walt v. Walt, 113 Tenn. 189, 81 S. W. 228; Dunham v. Harvey, 111 Tenn. 620, 69 S. W. 772; Temple v. Ferguson, 110 Tenn. 84, 72 S. W. 455, 100 Am. St. Rep. 791; Henson v. Wright, 88 Tenn. 501, 12 S. W. 1035; Jourolmon v. Massengill, 86 Tenn. 81, 5 S. W. 719; Davis v. Williams, 85 Tenn. 646, 4 S. W. 8; Hooberry v. Harding, 78 Tenn. (10 Lea) 397; Henderson v. Hill, 77 Tenn. (9 [2] We think this item of the will, consid-| 455, 100 Am. St. Rep. 791; Ellis v. Fisher, ered in connection with the preceding and fol- supra; Smith v. Metcalf, 38 Tenn. (1 Head) lowing provisions, shows the testator pur- 64; Rogers v. White, 33 Tenn. (1 Sneed) 68. posed three things: First, the conservation of his estate; second, provision for the necessities of his family; and, third, the preservation and investment of the income of the estate beyond the amount necessary to meet the necessities of his wife and children. Evidently he had the idea that these purposes could better be accomplished by leaving his estate to trustees than by giving it directly to his widow and children. Hardison was his partner and doubtless familiar with his partnership and individual realty, so the testator directs that he shall manage the disposition of it. His confidence in the ability of his partner is further proven by making him a trustee and “general manager" of his residuary estate. It is true, the testator devised his property to the partnership of Winters & Hardison; however, it is manifest that although the firm was to hold the property in trust, as stated, the management of it was imposed upon Hardison. The trust will cease as to each cestui que trust at death. Each devisee is entitled to receive the portion of the income from his share as his necessities may demand and, of course, the necessities of each end at death. The will does not provide for any devise over of the residuum of the estate after the death of the beneficiaries, hence the share of each beneficiary will go at death to his or her devisee, distributee, or heir, as the case may be. Temple v. Ferguson, 110 Tenn. 84, 72 S. W. [3] It is insisted, however, that if the will does not create a perpetuity, the testator died intestate as to the remainder, after vesting a life estate in trustees for complainants, and having both the life estate and remainder, the former became merged in the latter, and therefore the trust fails. The will does not create a life estate in the beneficiaries. The testator devised his property to them, without qualification, except that it is left in equal shares and in trust. Counsel, however, rely upon Davis v. Williams, 85 Tenn. 646, 4 S. W. 8, as authority for their insistence. In that case there was a life estate and remainder. However, there can be no merger where an active trust interposes. In the later case of Henson v. Wright, 88 Tenn. 501, 12 S. W. 1035, Mr. Justice Lurton, who delivered the opinion of this court in Davis v. Williams, said: "If any trust or duty is imposed on the trustee, either expressly or by implication, the trust merger of the legal and equitable estates"is an active one, and in such case there is no citing Henderson v. Hill, 77 Tenn. (9 Lea) 25, and Jeurolmon v. Massengill, 86 Tenn. 93, S. W. 719. The doctrine of merger will not apply where it defeats the intention of the grantor or testator. Perry on Trusts, § 347; 10 R. C. L. 667; 40 Cyc. 1813. The judgment of the Court of Civil Appeals is reversed, and a decree will be entered in this court sustaining the trust. GALOWAY v. STATE. (Supreme Court of Tennessee. March 23, 1918.) 1. CONSTITUTIONAL LAW CESS OF LAW. 321-DUE PRO Priv. Acts 1915, c. 564, § 20, requiring the owner to furnish a wagon and team for road work, and feed therefor, does not violate Const. art. 1, § 8, providing that no man shall be deprived of his property, but by the judgment of his peers and the law of the land. 2. EMINENT DOMAIN 2(6) — TAKING PROPERTY FOR ROAD WORK. Neither does it, as to the wagon and team, violate Const. art. 1, § 21, forbidding the taking of property for public use without compensation; but as to the feed it does. 3. STATUTES EFFECT. 64(5)-PARTIAL INVALIDITY— The statute is not entirely invalid because of the invalidity of the requirement as to feed. 4. HIGHWAYS 151(1) WORK ON ROAD IMPRESSMENT OF WAGONS AND TEAMS. The impressment of the wagon and team under the statute does not depend on the owner's liability to perform personal service. Error to Circuit Court, Marshall County; W. B. Turner, Judge. Rollie Galoway was convicted for failure and refusal to furnish a wagon and team for work on a public road, and he brings error. Affirmed. R. E. Haynes, of Lewisburg, for plaintiff in error. The Attorney General and Armstrong, Armstrong & Marshall, of Lewisburg, for the State. WILLIAMS, J. The plaintiff in error was convicted on an indictment which charged that he willfully failed and refused to furnish a wagon and team for work on a public road, after having been legally notified and warned to do so. The road law for Marshall county is Private Acts 1915, c. 564. Section 20 of the act provides that any person owning a wagon and team shall be required to furnish same the full number of days required to work a district road; and it is further stipulated that the owner of said wagon and teams shall furnish the necessary feed for each team. A fine is provided to be imposed for a violation. It is said in argument that similar provisions are to be found in statutes applying to other populous counties, such as Maury, Giles, Sumner, Lincoln, and Madi son. [1] In behalf of Galoway it is assigned for error that the above statutory requirements are violative of article 1, section 8, of the Constitution of 1870, and also of article 1, section 21, of the fundamental law. the taking or applying to public use of private property without just compensation. This appears to be the only reported case that rules the point. We are not satisfied with the reasoning of, or the result reached by, the Alabama court, so far as its decision relates to wagons and teams sought to be made temporarily subject to road service. between the labor of an individual and the Service of his animals and implements in that regard, thus: The court in that case draws a distinction "The books have been examined in vain for an authority which will authorize the exaction from a citizen of the contribution of his property for public service, under the theory that it is his duty as a citizen to so contribute. The state may exact the performance of this personal obligation, or provide a reasonable commutation for same by way of an assessment; but it cannot confiscate his property by devoting it to public use." We are of opinion that the distinction was not well made. There was left out of view the legal history of the road duties imposed upon landowners, in the light of which histo ry the constitutional provision should be read. 1. As to the conscription of wagons and teams of appellant: "Trinoda necessitis," meaning the threefold necessary public duties, viz. repairing bridges, maintaining castles or garrisons, and going on expeditions to repel invasions, phrased the burden to which all owners of lands were held liable by the Saxon law. Black, L. Dict. and 38 Cyc. 1994. Recently the Supreme Court of the United States had under review a statute of Florida which required every able-bodied male person over the age of 21 years, and under the age of 45 years, to work on the roads and bridges of the county, and that court made this reference to the rule of the ancient law of the Saxons in England: "In view of ancient usage and the unanimity of judicial opinion, it must be taken as settled that, unless restrained by some constitutional limitation, a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near is a part of the duty which he owes to the pubhis residence without direct compensation. This lic. The law of England is thus declared in Blackstone's Commentaries, bk. 1, page 357: keep the highroads that go through it in good 'Every parish is bound of common right to and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our ancient laws, whatever other immunities he might enjoy: this being part of the trinoda necessitas, to which every man's estate was subject, viz. expeditio contra hostem, arcium constructio, et of bridges only is expressed, yet that of roads pontium reparatio. For, though the reparation also must be understood; as in the Roman law, with respect to the construction and repairing of ways and bridges no class of men of whatever rank or dignity should be exempted." Butler v. Perry, 240 U. S. 328, 36 Sup. Ct. 258, 60 L The case chiefly relied upon by plaintiff in error is Toone v. Alabama, 178 Ala. 70, 59 South. 665, 42 L. R. A. (N. S.) 1045, which holds that subjecting animals and implements suitable for road work in the county to that duty a certain num er of days each year violates a constitutional provision forbidding | Ed. 672. |