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power,” said Judge Peckham in People v. Budd, 117 N. Y. 1, 38, 22 N. E. 670, 682, 5 L. R. A. 559, 15 Am. St. Rep. 460, “it is acknowledged, may be rightfully exercised, among others, in cases involving the public health or the public morals. No one questions it in regard to either of those two important branches of government.' No court in this state, so far as I have been able to learn, has ever declared an act unconstitutional which was simply designed to protect the public health. It is only in cases where, under the guise of health regulations, enactments have been passed having other ulterior objects in view, that the courts have declared the acts unconstitutional. These cases in no degree weaken the broad doctrine that the state, in the exercise of its sovereign power may control and restrain the individual citizen by fair and reasonable laws designed to promote the public health, and by which all are treated alike. They only establish, said the court in People v. Ewer, 141 N. Y. 129, 135, 36 N. E. 4, 25 L. R. A. 794, 38 Am. St. Rep. 788, that "the Legislature has no right, under the guise of protecting health or morals, to enact laws which, bearing but remotely, if at all, upon these matters of public concern, deprive the citizen of the right to pursue a lawful occupation.” The provision of the act in question in reference to vaccination has no object beyond the maintenance and preservation of the public health, and invades no rights of the citizen. It relates solely to the children attending the public schools, and aims to protect the great mass of the people who have adopted a generally recognized preventive of the spread of smallpox from dangerous and enforced association with the few who refuse to join in the protection. It has long been on our statute books. As originally passed in 1860 (chapter 438, p. 761), it directed boards of education to exclude from the benefits of the common schools therein any child or any person who has not been vaccinated”; and, as re-enacted by chapter 661, p. 1556, of the Laws of 1893, it expressly provides that “no child or person not vaccinated shall be admitted or received into any of the public schools of the state." Assuming that the state has a right to determine whether or not the practice of vaccination tends to prevent disease, and assuming that the state has a right to determine that the general and intimate association for long periods of unvaccinated persons, and especially of unvaccinated, susceptible children, is a menace to the public health, no reasonable doubt can exist as to the propriety and legality of this exercise of its sovereign power. The legitimacy of its exercise is recognized by text-writers. See Prentice on Police Powers, p. 132; Tiedeman on Limitations of Police Power, S 15, P. 31; and Parker and Worthington on Public Health & Safety, š 123. It is not in conflict with the assumed duty of the state to furnish education. Cooley, in his work on Torts, says (section 287):

"To furnish to its citizens the means of an education is a duty which the state, at its option, will assume or decline; and, when the duty is assumed, the state, in the provision it makes, will go so far as its lawmakers sball think proper, and no further."

This principle was recognized by the Court of Appeals in the case of the People ex rel. King v. Gallagher, 93 N. Y. 438, 45 Am. Rep.

and 118 New York State Reporter 232, and Chief Judge Ruger, referring to a well-known case then recently decided by the federal court, said (page 447):

"It would seem to be a plain deduction from the rule in that case that the privilege of receiving an education at the expense of the state, being created and conferred solely by the laws of the state, and always subject to its discre. tionary regulation, might be granted or refused to any individual or class at the pleasure of the state. This view of the question is also taken in State ex rel. Garnes v. McCann, 21 Ohio St. 210, and Cory v. Carter, 48 Ind. 337, 17 Am. Rep. 738.”

It is unnecessary to go as far as Judge Ruger did. It is sufficient that on principle and authority the duty to educate is not so far absolute as to exclude the right to enforce reasonable prohibitory regulations.

In many of the states vaccination laws in relation to school children have been held to be constitutional, and within the legitimate exercise of the police power, provided they are enforced only when an epidemic of smallpox threatens the community; but in many other states besides our own it has been expressly held that, independently of any specific menace of disease, a regulation excluding unvaccinated children from the public schools is reasonable, valid, and constitutional. Among the latter cases may be cited Abeei v. Clark, 84 Cal. 226, 24 Pac. 383; Duffield v. Williamsport School District, 162 Pa. 476, 29 Atl. 742, 25 L. R. A. 152; Field v. Robinson, 198 Pa. 638, 48 Atl. 873; Bissell v. Davison, 65 Conn. 183, 32 Atl. 348, 29 L. R. A. 251 ; Blue v. Beach, 155 Ind. 121, 56 N. E. 89, 50 L. R. A. 64, 80 Am. St. Rep. 195; and Matter of Rebenack, 62 Mo. App. 8. In some of these jurisdictions there existed at the time of the respective decisions à constitutional guaranty of education similar in character to that embraced in our present fundamental law. Thus, in Indiana, by article 8, § 1, the Constitution provided in substance that tuition should be free, and the schools open to all; in California, by article 9, § 5, of the Constitution, it is provided that "the Legislature shall provide for a system of common schools, by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established"; and by article 1o, § 1, of the Constitution of Pennsylvania, the Legislature is required to maintain a “system of public schools, wherein all the children of this commonwealth, above the age of six years, may be educated.” Nevertheless the vaccination law was upheld by the court of last resort in each of the three states referred to in the cases supra, respectively, of Blue v. Beach, Abeel v. Clark, and Duffield v. Williamsport School District.

For the reasons herein expressed, and those contained in the opinion of WOODWARD, J., I vote for an affirmance of the order.

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In re STEWART et al. (Supreme Court, Appellate Division, Second Department. November 20, 1903.) 1. WILLS-PARTICULAR FUNDS-EXPENDITURE

Where testator directed his executors to maintain his homestead from his general estate, and the surrogate, for the protection of the trustees and to secure the family occupation of the homestead, set apart a fund to provide an income to meet the expenses directed to be defrayed, such decree, until vacated, was final on the executors, so far as to require that they use the income only, and not the principal, of that particular

fund for the purpose for which it was set apart. 2. SAME-ACTIVE TRUST-HOMESTEAD-MAINTENANCE.

Where testator devises to his executors his dwelling house, lands, outbuildings, and appurtenances to maintain as a homestead and permanent residence for his family, with power to lease or sell the premises when it appears to them to be for the interest of the estate, except that it is not to be sold in the wife's lifetime without her consent, and directs them to pay out of his general estate all sums necessary, in their judgment, for keeping the premises in repair, the trust is an active valid trust, and all expenditures made by the executors for maintaining the property as a homestead in the manner it was maintained by the testator are to be paid out of the general estate. Appeal from Surrogate's Court, Westchester County.

In the matter of the judicial settlement of the account of proceedings of John A. Stewart and others as trustees under the will of John B. Trevor, deceased. From a decree of the surrogate entered on an intermediate accounting of trustees, they, with certain other parties, appeal. Modified.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.

John Notman, for appellant trustees.
Edward E. Sprague, for appellants Emily N. Trevor and others.
Ernest A. Bigelow, special guardian, for Trevor infants.
J. Mayhew Wainwright, Special Guardian, for Winthrop infants.

GOODRICH, P. J. Appeal comes to this court from a decree of the Surrogate's Court of Westchester county, entered upon an intermediate accounting of trustees under the last will of John B. Trevor, deceased, adjudging that the trustees must be surcharged with certain items expended by them over and above the income yielded by a certain trust fund known as the “Glenview Maintenance Fund," set apart by the surrogate of Westchester county in 1892, upon the first judicial accounting of the executors of the will, "as a fund to provide an income to meet the expenses directed to be defrayed out of the general estate of the testator by the second article of his will, and to be held by said trustees for the purposes aforesaid, and subject to a future accounting thereof."

The testator, John B. Trevor, died in 1890, leaving a will, which was probated before the surrogate of Westchester county in 1891. He was a man of great wealth, his personal estate alone exceeding $9,000,000. He occupied, as his family residence, Glenview, which consisted of a plot of 30 acres of land on the Hudson river, at Yonkers, upon which was a large dwelling house, with stables, gardens, and 118 New York State Reporter greenhouses, and other buildings. His will contained the following clauses, which are involved in our discussion of the questions arising upon this appeal:

"Second. I give, devise and bequeath to my executors hereinafter named my dwelling house at Yonkers and the lands, outbuildings and improvements adjacent thereto and in the neighborhood thereof, and the appurtenances as the same shall be in my use and occupation at the time of my decease to have and to hold the same and every part and parcel thereof to them and their survivors or successors in trust to maintain the same as a homestead and permanent residence for my wife and my children during the life of my wife and also after the death of my wife so long as it shall appear to my executors, in view of the interests of my children and of my estate, practicable and desirable so to maintain the same, and I hereby empower my said executors to pay out of my general estate all sums necessary, in their judgment, for keeping said dwelling house, lands, buildings and premises insured and in repair and good order, and also all sums required for the taxes and assessments thereon, and no part of any such sums shall be charged against the income of my wife, or of any child, or against the principal of the share of any child, but I empower my said executors, in their discretion, to sell and convert into money all or any part of the lands which are the subject of the devise hereinbefore made, either in parcels or as a whole, and at such time or times and on such terms as they shall think best; it being my intention and my will in respect to the said homestead and all the said lands and premises that whenever, in the judgment of my executors, it shall appear to be for the interest of my estate and of my wife and children, or of my children after my wife's death, to sell the same, they shall have full power and authority to make such sale and the like power and authority to sell any part or parcel of the said lands and premises, from time to time, except that the dwelling house and the furniture and effects therein shall not be sold during the life of my said wife without her consent in writing expressed by her uniting in any deed of conveyance and bill of sale thereof. I also empower my said executors in their discretion to lease the said homestead or dwelling. house with part of the land for such term and at such rent as they may think best. It is further my will, and all the provisions hereinbefore contained are subject to this direction, that the power of alienation of said lands and premises shall not be suspended beyond the term of the life of my said wife and of the youngest of my children who shall be living at the time of my death and on the termination of said two lives, or of the life of my wife, if I shall leave no child surviving me, I direct that all of said lands and premises be sold by my said executors and the proceeds of sale disposed of according to the provisions hereinafter contained in respect to my residuary estate."

"Eighth. I hereby authorize and empower my executors and trustees hereinafter named to sell and convey any real or personal estate of which I may die seized or possessed at public or private sale and on such terms as they may think best and to execute sufficient deeds of conveyance and bills of sale thereof, also to lease any such real estate from year to year or for any term of years, or for any shorter time, and until a sale thereof, to receive the rents, issues and profits thereof, also with any money belonging to my estate or with the moneys recovered or received on any policy of insurance to build or rebuild any buildings on my estate in the place of any which may become destroyed by fire or which it may otherwise become necessary or advisable to rebuild, and also to improve any of my real property by building thereon. Also, in their discretion, to purchase and hold as a portion of my estate any part of any real estate in which I may at the time of my death hold any interest in common with James B. Colgate, or any other person. In the power of sale hereby given I include the dwelling house and lands mentioned in the second article of this will, but I request that such power be not exercised unless my executors shall think that for any reason it is undesirable for my wife and family to reside there."

"Fourteenth (in part). Whenever I have given a discretion to my executors or trustees it is my intention that it shall be exercised by them as fully and

absoʻutely as I could exercise discretion myself if living in respect to the matter to which such discretion is to be exercised."

The evident intention of the testator, derivable from these paragraphs, was that the executors should maintain Glenview out of the general funds of the estate as a “homestead and permanent residence" for his family during their discretion, and upon the general lines of its maintenance during his lifetime, with power in their absolute discretion at any time to sell the property, or any part of it, except that it was not to be sold during the life of his wife without her consent. But the executors could lease the homestead, with part of the land, for such rents as they deemed best. They were empowered to sell and convey or to lease all or any part of the estate, including by specific mention the homestead.

In 1892, on their first judicial accounting, and in consequence of certain objections by one of the beneficiaries under the will, the trustees set aside securities aggregating $124,000, which, pursuant to a decree of the Surrogate's Court, were reserved "as a fund to provide an income to meet the expenses directed to be defrayed out of the general estate of the testator by the second article of his will." By reason of increased taxes and additional repairs, the trustees were unable to meet the expenses of keeping Glenview "in repair and good order," as they construed those terms, out of the income of the fund, and asked the opinion of Mr. Stephen P. Nash, an eminent lawyer, and were advised by him that it was their duty to maintain the property out of the general estate in a condition similar to that in which they had found it, in order to prevent its deterioration and preserve its salability. This course has been pursued, and the account before us shows that their expenditures during the period of six years since the last accounting have exceeded the income by $28,151.02, of which $18,000 has been taken from the principal of the Glenview maintenance fund and $12,500 from the general funds in their hands as executors.

The special guardians allege that while, up to 1895, the trustees had only expended the income of the fund, thereafter they "made a radical departure from their former practice of charging to the fund only taxes, insurance, and repairs, and had, for the period covered by the present accounting, charged to the fund gardeners' wages, amounting to over $23,000, and large sums for water taxes and coal," thus causing the deficit shown by the account. Their first contention is that this accounting is not that of executors qua executors for the general estate of the testator, but as trustees accounting for a special fund called the "Glenview Maintenance Fund," set apart to them by the decree of 1892, and that by the express terms of that decree they are bound to preserve intact the principal of the fund. It may be conceded that the accounting is of that nature, but none the less does it involve the question of the power of the executors to use the principal of that fund, or any other portion of the general estate, to carry out the intention of the testator as expressed in the will.

There is no appeal from the decree of 1892, and it must be considered as final upon the trustees, so far as to justify a requirement

84 N.Y.S.-46

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