not receive any part of the principal or the income till after her death, their right of enjoyment was postponed till the happening of that event. Whatever interest they may have had before, the right to the possession and enjoyment depended upon the death of the donor. We think it quite clear that the remainders were transferred to the nieces, in possession or enjoyment, by an instrument intended to take effect for that purpose, at or after the death of the donor, and so the case is brought within the terms of the statute. It matters not whether the transfer is by grant or by gift, so long as it was intended to take effect, in possession or enjoyment, at or after the death of the grantor or donor; the devolution of title is subject to the tax."

court held that the only transfers made be- | possession, of the property. Since they could fore the law went into effect, liable to the tax, were wills where death occurred after the law went into effect, and gifts or voluntary transfers made "in contemplation of death, where the death occurred after the statute became operative." This construction seems to us the only reasonable one that can be given to the statute under consideration. A gift made in contemplation of death partakes somewhat of the nature of a testamentary disposition of property, and there can no great hardship result from holding that such gifts stand upon the same footing as wills, in so far as the liability to the transfer tax is concerned. This construction, as already shown, had been given to this language by the Court of Appeals of New York before our Legislature adopted the same language in our statute.

In

We see no escape from the conclusion that the life estate of Nellie Clark is subject to the inheritance taxes imposed thereon. so far as the judgment below concerns her interests, it is affirmed. In all other respects the judgment is reversed, and the cause re

manded.

Reversed in part, and remanded.

DUNN, J., and CARTWRIGHT, C. J. (dis

[6] What has thus far been said under the authority of the Seaman Case, supra, applies to the estate in remainder of Augustus Albert Carpenter and Amie C. Newell, or those who by representation might take their respective estates, but the life estate of Nel-senting). lie Clark rests upon a different basis. Under the terms of the trust agreement she came into the enjoyment in possession of her life estate upon the death of the donor. The income from the trust estate was payable by the trustee to Augustus A. Carpenter during his natural life. At his death the trustee was required to continue to collect the income and pay the same to Nellie Clark during her life. Thus, under the terms of the trust, the death of the donor was the event upon the happening of which Nellie Clark was to come into the enjoyment of her estate. Her interest was contingent upon her surviving the donor, and did not become vested until after his death. This brings the gift to her directly within the third clause of the statute, which imposes the tax upon gifts "intended to take effect in possession or enjoyment at or after such death." The language above quoted from the statute has been construed by the Court of Appeals of New York in cases decided since the opinion in the Seaman Case was handed down. In

re Green's Estate, 153 N. Y. 223, 47 N. E. 292; In re Brandreth, 169 N. Y. 437, 62 N. E. 563, 58 L. R. A. 148; Matter of Keeney,

whether the

"It is not important trust instrument was made in contemplation of death, or whether, upon the delivery thereof, the remainders vested in the nieces in such a sense as to constitute a gift inter vivos within the meaning of the cases cited by the learned counsel for the respondent. The real question is whether the remainders which the nieces took under the deed were intended to take effect, in possession or enjoyment,' at or after the death of the donor. Until her death they had no actual possession, or right to the

The majority opinion holds that the only reasonable construction to be given to the third clause of the act of 1909 is that the only transfers made before the law went into effect, liable to the tax, were wills where death occurred after the law went into effect and gifts or voluntary transfers made in contemplation of death, where the death occurred after the statute became operative, and that the words "in contemplation of death" do not refer to a general expectation of death but an apprehension of death from some existing infirmity or impending peril. We agree with this construction, and under it none of the remainders limited in the trust agreements in this case are subject to the tax under the act of 1909. The reason given in the illustration in the majority opinion of a conveyance made years before the statute was passed is that the title vested in remainder upon the delivery of the conveyance. The opinion assumes that the remainder to the children of Augustus A. Carpenter was so vested. Whether that be so or not, the remainder to Nellie Clark was certainly vested. She had, when the agreements were made, a present fixed right of future enjoyment. That right was subject to no condition precedent to its taking effect in possession other than the determination of the par

ticular estate. A remainder is vested when the person to take is unchangeably ascertained and the event upon which the remainder depends is bound to occur. Nellie Clark, the person who was to take, was a living, ascertained person, and the death of Augustus A. Carpenter was bound to occur. The uncertainty as to whether she would live to enjoy the estate did not make the remainder contingent, or her right to the enjoy ment uncertain, though her death would put an end to the life estate which was vested in her. Before the statute of 1909 was pass

ed she was, by virtue of the trust agreements, [ with the forms of law, will not be reviewed on the owner of a vested interest for life, expectmandamus. ant upon the death of Augustus A. Carpenter, in all the property included in those There was no transfer subseagreements. quent to that act, and therefore nothing upon which any tax could accrue.

PEOPLE ex rel. PEIXOTTO v. BOARD OF ary 3, 1913," omitting the last words in the

(Court of Appeals of New York. Sept. 29, 1914.) simply anticipated what the relator's excuse

"Neglect of duty" by a teacher, being by Greater New York Charter. $ 1093 (Laws 1901, c. 466) ground for her dismissal by the board of education, and her absence without leave for three months being such neglect, and her excuse, the bearing of a child, being for the board to pass on, its determination in dismissing her, it having proceeded in substantial compliance of the committee was adopted by a majority For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

vote of the board of education, and the relator was accordingly dismissed. She did not appeal to the commissioner of education, but brought this proceeding.

The argument of the relator's counsel is that absence from duty for the reason specified in the charge is not neglect of duty, under section 1093, and hence that the action of the board of education in dismissing her was illegal and unwarranted in law. It is true, of course, that the relator was absent from her school without leave for the period mentioned-nearly three months. That was the gravamen of the charge against her, and brought her case within the jurisdiction of the board of education.

WILLARD BARTLETT, C. J. (dissenting). The learned judge who wrote for the Appellate Division in this proceeding makes the following concession:

"Of course, if the charge preferred against the relator, upon which she was removed, was not remove her, then the action of the defendant in one on which the defendant was authorized to removing her would be a nullity, and she might be reinstated by mandamus; but that is not this case."

Whether that is this case or not depends entirely upon what is meant by the charge. I think it means the general accusation against the teacher as qualified and interpreted by the specification. Here the charge is not merely neglect of duty, but it was neglect of duty consisting of absence for the purpose of bearing a child. This is the offense for which the relator has been deprived of her position on the teaching staff of the city's school system and of her share in the teach

The Legislature could have provided that the relator might be dismissed for no cause whatever. She had no vested right in the position of teacher. Section 1093 of the city charter has made neglect of duty ground for dismissal without any qualifying words. Ab-ers' pension fund. In my opinion the board sence on account of serious illness or for any other reason, high or low, leaves the duties of the position unperformed, and therefore neglected by the absentee. The statute has lodged with the board of education the power of deciding cases that thus fall within section 1093, and the board is required to pass upon the excuses offered in any case of absence. In the proceeding under review, the board of education discharged its duties fairly, and the courts cannot by mandamus reverse the conclusion reached.

The general rule is that mandamus will not lie to review the determination of public boards or officers in matters involving the exercise of discretion or judgment, if they have proceeded within their jurisdiction, and in substantial compliance with the forms of law. People ex rel. Empire City T. Club, etc., v. State Racing Com., 190 N. Y. 31, 82 N. E. 723; Matter of Dill, 185 N. Y. 106;1 People ex rel. Dietz v. Easton, 13 Abb. Prac. (N. S.) 159; People ex rel. Kennedy v. Brady, 166 N. Y. 44, 49, 59 N. E. 701.

The relator also argues that the by-laws of the board of education contain no rule which she has violated. If a rule is necessary at all, it may be found in subdivision 4, § 44, of the by-laws, made by the board of education. That subdivision says:

may

"Teachers' absences from duty be excused without pay by the local school boards on written application indorsed by the principal and the district superintendent. Το such absences, however, shall be excused without approval of the board of superintendents." The relator might have been dismissed under that subdivision. Her dismissal can also be sustained under section 1093 of the charter. The relator made no attempt to comply with any rule of the schools. Apparently all she did was to inform the board of education that she was suffering from some affection of the ears and nose, and that she was going to Lakewood, N. J.

of education was without power or jurisdiction to remove her on this ground. Under the established rules of the board, mere absence in and of itself does not necessarily import neglect of duty. The absence of a teacher is thereby expressly declared to be excusable, without any deprivation of pay, in case of serious personal illness, and leave of absence without pay may be granted for a period not exceeding one year for the purpose of study or restoration to health. In every case of absence without leave previously granted, it is obviously necessary to ascertain the cause of absence before it can be deemed to constitute undutiful negligence warranting dismissal; and it is a question of law whether or not the cause assigned imports neglect of duty. If it does, the board of education may remove the teacher; if it does not, no power of removal exists.

Married women have been 'employed as teachers in our public schools for so many years that their employment in this capacity must be deemed to have the approval of the Legislature. Certainly if it had been disapproved, we should have found some evidence to that effect on the statute book. Maternity, requiring occasional absences at periods of childbirth, is a natural consequence of the employment of potential mothers as teachers. If the Legislature had regarded this consequence as detrimental to the welfare of the schools, it would certainly have guarded against it by a prohibitory enactment. We find no such prohibition in the law or in any duly authorized rule or regulation of the board of education adopted pursuant to law. It is true that the board has virtually endeavored to establish such a rule by its action in the present case, but I think it had no authority so to do. The reasons for and against the employment of young mothers as public school teachers, set out in this record in the majority and minority reports of the committee on ele

The order appealed from should be affirm- mentary schools of the board of education, ed, with costs.

are appropriate for the consideration of the

lawmaking power, but do not concern the courts. The question which we are called upon to decide in this proceeding is whether the specific accusation upon which the relator has been dismissed from her position, to wit, "absence for the purpose of bearing a child," constitutes neglect of duty, within the meaning of section 1093 of the Greater New York charter. I agree with the learned judge who heard the case at Special Term (Mr. Justice Seabury) that it does not. I therefore dissent from the proposed affirmance of the order of the Appellate Division, which reversed his decision.

HOGAN, J. (dissenting). I concur with the opinion of Chief Judge BARTLETT, but, in addition to the views expressed by him, I dissent from the prevailing opinion herein upon further grounds, and in order that the same may be explicitly stated I desire to refer to certain facts in the case.

For a period upward of 18 years, prior to the 22d day of April, 1913, relator was a teacher in the public schools of the city of New York, and as such teacher, since the institution of the pension fund, contributed her pro rata share to that fund. During the year 1913, and prior thereto, she was a teacher in charge of one of the schools. By reason of her dismissal, she has been deprived of her position as a teacher, together with her right to the salary attached to the same and to the property right which she had or might have in the pension fund. Asserting her removal was unlawful, she secured a peremptory writ of mandamus requiring her reinstate ment, and from the order of the Appellate Division, reversing the order of the Special Term, she has appealed to this court.

In view of her property rights and the general principles that prevail, in my opinion, no question can be raised as to the power of this court to dispose of the question presented.

er. The specifications attached to the notice of suspension read as follows:

"The reason for this action is the continuance of the absence of Mrs. Peixotto from duty since February 3, 1913, for the purpose of bearing a child."

A hearing upon the charges preferred against the relator occurred before the committee upon elementary schools. A majority and minority report was made by the committee. The majority report of the committee found relator guilty of the charge of "neglect of duty" and recommended her dismissal. The report having been approved by the board of education, relator was dismissed from her position.

The report of the committee, so approved by the board of education, referred to the testimony taken upon the hearing before the committee, but the same was not made a part of the return by the defendant. In the absence of such evidence, we are not advised whether or not such illness of relator or enforced absence by reason thereof continued down to the time of her removal, or whether or not the same was merely temporary. We cannot indulge in presumptions on this subject. If her illness was merely acute and her enforced absence of short duration, the defendant should have returned the evidence taken before the committee. Likewise, if the alleged affection of the relator was merely a pretense for her absence, evidence disclosing that fact should have been returned. truthfulness of the statement made by relator and her physician as to her illness and absence commencing February 3d stands unchallenged and must, on the record before us, be considered as true, and yet relator has been convicted of "neglect of duty" by reason of her absence since February 3, 1913, caused, as stated by herself and physician, by an affection of the nose and ears, which illness was a legitimate cause for such absence. Notwithstanding this fact, and the absence of evidence to contradict it in the record, she has been removed upon the charge of "neglect of duty" by reason of absence "for the purpose of bearing a child."

The

As stated by Chief Judge BARTLETT, the board of education was without power or jurisdiction to remove relator. People ex rel. Murphy v. Maxwell, 177 N. Y. 494, 69 N. E. 1092.

I therefore vote for reversal.

The relator was a married woman. On February 3, 1913, she absented herself from school and immediately, pursuant to the bylaws of the board of education, sent a communication to the proper authorities, stating that the cause of her absence was an affection of her ears and nose, and accompanied such communication with a physician's certificate. This fact appears in the report of the committee, which was approved by the board of education, as well as the further fact that, by advice of her physician, she went to Lakewood, N. J., occasionally return- WERNER, CHASE and COLLIN, JJ., coning to New York to consult him. On April 7, cur with CUDDEBACK, J. HISCOCK, J., 1913, she gave birth to a child; thereafter, concurs in result on the ground that the re and on April 22, 1913, while she was still in lator's right to relief, if any, was through an the hospital and in the ordinary course of appeal in the first instance at least to the events had not recovered from the illness in- president of the university and commissioner cident to childbirth, the district superintend- of education. WILLARD BARTLETT, C. J., ent, by instructions of the city superintendent and HOGAN, J., read dissenting opinions. of schools, preferred charges of "neglect of duty" against her, and suspended her as a teach

Order affirmed.

MARCONI WIRELESS TELEGRAPH CO. | 7. COMMERCE (§ 16*)—INTERSTATE COMMERCE
OF AMERICA v. COMMONWEALTH.
-WHAT CONSTITUTES.
(Supreme Judicial Court of Massachusetts.
Suffolk. Oct. 8, 1914.)