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ANNOTATION.

Recovery of excess of advancement over distributable share in estate. [Advancements, § 4.]

This annotation is confined strictly to the recovery from an heir of an excess of advancements over his whole distributive share in the estate, and does not consider the deduction of advancements from the share of an heir, or the bringing of advancements into hotchpot, or otherwise equalizing the advancements made to the several

heirs.

The few cases which have passed on the question have done so in a somewhat cursory manner, but are in accord in ruling that where an heir has received advancements in excess of his share in the estate, he cannot be compelled to refund that excess. Eckler v. Galbraith (1876) 12 Bush (Ky.) 71; Edwards v. Livesay (1924) 203 Ky. 53, 261 S. W. 839; Watson v. Watson (1837) 6 Watts (Pa.) 254; McCoy v. McCoy (1906) 105 Va. 829, 54 S. E. 995; Sipchen's Estate (1923) 180 Wis. 504, 193 N. W. 385. And see the reported case (McPherson v. Black, ante, 1424).

Thus, in Edwards v. Livesay (1924) 203 Ky. 53, 261 S. W. 839, supra, it was said (obiter) that an advancement to a child by a parent does not constitute a debt, and if the advancement is more than the child's portion of the estate, he cannot be required to bring the excess into hotchpot and account for it. In Watson v. Watson (1837) 6 Watts (Pa.) 254, the court said that an advancement is a gift, and though it be in excess of the child's proportion of the estate he may none the less retain it.

In McCoy v. McCoy (1906) 105 Va. 829, 54 S. E. 995, the court held that a child who receives an advancement from a parent may bring such advancement into hotchpot, and it will be considered as a part of the intestate's estate, entitling him to share in the division and distribution thereof, but if it turns out that his advancement exceeds his equal share, he cannot be

required to refund the excess, but can only be excluded from participating in the division or distribution of the estate.

In the case of Sipchen's Estate (1923) 180 Wis. 504, 193 N. W. 385, the court said: "Where a gift by a deceased during his lifetime becomes an advancement, the amount thereof can be deducted from the donee's share in the estate; but the donee incurs no obligation to pay to the estate an excess, where his distributive share is less than the amount of the gift."

In Eckler v. Galbraith (Ky.) supra, it appeared that, after a partition suit whereby the real estate was divided among the heirs, a subsequent action was brought to settle the rights in the personalty of the intestate, and it was found that one of the heirs had received advancements in excess of his distributable share. The court said that while the heirs might have compelled him to account for this excess in the action in which the real estate was partitioned, by insisting that he should receive no part of the realty until they were each made proportionately equal with him, they could not thereafter compel him to refund the excess of advancements, since it did not constitute a debt.

In Edwards v. Freeman (1727) 2 P. Wms. 435, 24 Eng. Reprint, 803, 2 Eng. Rul. Cas. 252, the court said: "The statute takes nothing away that has been given to any of the children; however unequal that may have been, how much soever that may exceed the remainder of the personal estate left by the intestate at his death, the child may, if he pleases, keep it all; if he be not contented, but would have more. then he must bring into hotchpot what he has before received; this manifestly seems to be the intention of the act, grounded upon the most just rule of equity, equality." See also Phiney v. Phiney (1708) 2 Vern. 638, 23 Eng. Reprint, 1018. W. M.

(— Iowa, 209 N. W. 454.)

HAZEL HARRIS, Admrx., etc., of Harold Harris, Deceased, Appt.,

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Highways, § 123 - failure to protect coasters- liability.

1. A municipal corporation which sets aside a street for coasting is not liable for an injury to a coaster caused by its failure to exclude traffic from the street.

[See annotation on this question beginning on page 1434.]

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C. L. Supp. 1058; 6 R. C. L. Supp. 1158.]

Municipal corporations, § 198 - what is governmental duty.

5. A governmental duty is one involving the exercise of governmental power, and is assumed for the exclusive benefit of the public.

Courts, § 56 supervision of governmental duties.

6. A sovereign act of government cannot be submitted to the judgment of the courts.

Municipal corporations, § 265 - liability for acts in enforcing police regulations.

7. A city is not liable for the acts of its officers in attempting to enforce police regulations.

[See 19 R. C. L. 1099; 4 R. C. L. Supp. 1306.]

APPEAL by plaintiff from a judgment of the District Court for Polk County (Utterback, J.) sustaining a demurrer to a petition filed to recover damages for the alleged wrongful death of plaintiff's decedent. Affirmed.

Statement by De Graff, J.:

Action in tort to recover damages for the alleged wrongful death of plaintiff's decedent from injuries sustained while coasting on one of the streets of the defendant city. A demurrer to the petition was sustained. Plaintiff appeals.

Messrs. G. F. Brooks and George Mitchell Faul, for appellant:

A city is bound to keep its streets open and in repair and free from nui

sance.

Soper v. Henry County, 26 Iowa, 264; Rowell v. Williams, 29 Iowa, 210; Bliven v. Sioux City, 85 Iowa, 346, 52 N. W. 246; Wheeler v. Ft. Dodge, 131

Iowa, 566, 9 L.R.A. (N.S.) 146, 108 N. W. 1057; Bohen v. Waseca, 32 Minn. 176, 50 Am. Rep. 564, 19 N. W. 730; Van Cleef v. Chicago, 240 Ill. 318, 23 L.R.A. (N.S.) 636, 130 Am. St. Rep. 275, 88 N. E. 815; Capp v. St. Louis, 251 Mo. 345, 46 L.R.A. (N.S.) 731, 158 S. W. 616, Ann. Cas. 1915C, 245.

The care and maintenance of the safety of the streets fall within the ministerial or administrative functions of the city government, and do not come under the police duties, and for failure in such duties the city is liable.

Wheeler v. Ft. Dodge, 131 Iowa, 566, 9 L.R.A. (N.S.) 146, 108 N. W. 1057; Fitzgerald v. Sharon, 143 Iowa, 730, 121 N. W. 523.

A city is liable for resulting damage caused by permitting the use of its streets in a manner which endangers any person rightfully thereon.

Stanley v. Davenport, 54 Iowa, 463, 37 Am. Rep. 216, 2 N. W. 1064, 6 N. W. 706; Wheeler v. Ft. Dodge, supra; Speir v. Brooklyn, 138 N. Y. 6, 21 L.R.A. 641, 36 Am. St. Rep. 664, 34 N. E. 727; Capp v. St. Louis, supra; Moore v. Bloomington, 51 Ind. App. 145, 95 N. E. 374; Bliven v. Sioux City, 85 Iowa, 346, 52 N. W. 246.

The question whether an existing condition or a use of a street constitutes a nuisance is one of fact for a jury to determine, and is not determinable upon demurrer.

Wheeler v. Ft. Dodge, supra; Moore v. Bloomington, 51 Ind. App. 145, 95 N. E. 374; Bliven v. Sioux City, supra; Johnson v. New York, 186 N. Y. 139, 116 Am. St. Rep. 545, 78 N. E. 715, 9 Ann. Cas. 824, 20 Am. Neg. Rep. 694; Shipley v. Proctor, 177 Mass. 498, 59 N. E. 119, 9 Am. Neg. Rep. 304; Baxter v. Cedar Rapids, 103 Iowa, 599, 72 N. W. 790.

The question of whether a city is negligent in failing to abate a nuisance is also a question for a jury to determine, and not determinable upon demurrer.

28 Cyc. 1502, (d), 1504, (e); Shumway v. Burlington, 108 Iowa, 424, 79 N. W. 123; Templin v. Boone, 127 Iowa, 91, 102 N. W. 789; Achey v. Marion, 126 Iowa, 47, 101 N. W. 435; Howard v. Lamoni, 124 Iowa, 348, 100 N. W. 62; Fink v. Des Moines, 115 Iowa, 641, 89 N. W. 28; Ford v. Des Moines, 106 Iowa, 94, 75 N. W. 630, 4 Am. Neg. Rep. 379.

What would constitute the necessity of, or the sufficiency of, precaution on the part of the city to prevent an injury from a dangerous condition in a street, is also a question of fact for a jury, and is not determinable upon demurrer.

28 Cyc. 1506, (e) (2); Goucher v. Sioux City, 115 Iowa, 639, 89 N. W. 24; Sutherland v. Council Bluffs, Iowa,

99 N. W. 572; Lichtenberger v. Meriden, 91 Iowa, 45, 58 N. W. 1058; Mathews v. Cedar Rapids, 80 Iowa, 459, 20 Am. St. Rep. 436, 45 N. W. 894. Messrs. Reson S. Jones, Eskil C. Carlson, Chauncey A. Weaver, and Don G. Allen, for appellee:

Coasting upon a public street is not an illegal act, so as to constitute a public nuisance.

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Jackson v. Castle, 80 Me. 119, 13 Atl. 49.

No action will lie against the city by reason of an accident resulting from the use of the streets for coasting under municipal sanction.

Burford v. Grand Rapids, 53 Mich. 98, 51 Am. Rep. 105, 18 N. W. 571.

An ordinance of the city in force, forbidding coasting on any of the streets and highways of the city, does not impose upon the city the duty of preventing the nuisance of coasting on its streets, so that it can be held liable for any injury resulting from a negligent omission of such duty.

Hutchinson v. Concord, 41 Vt. 271, 98 Am. Dec. 584.

A municipality is not liable for injuries resulting from not preventing coasting upon a public street, and this is equally true in those states where the liability for defective streets is imposed by statute.

6 McQuillin, Mun. Corp. § 2771; Pierce v. New Bedford, 129 Mass. 534, 37 Am. Rep. 387.

The doctrine of the exemption of a municipal corporation from liability for injuries resulting from the unlawful or improper use of its streets and sidewalks, and not from any defect in their state or condition, has been applied where persons have been injured by coasting.

28 Cyc. 1357; Shepherd v. Chelsea, 4 Allen, 113; Toomey v. Albany, 14 N. Y. Supp. 572.

The suppression of coasting in a public highway is a police duty, and for the nonperformance of such duty by its officers and agents the corporation is not liable.

Altvater v. Baltimore, 31 Md. 462. Although sliding in public streets may be a misuse of them, it is not an obstruction of the streets, and a town cannot be held liable for damages resulting to a traveler from such misconduct.

Ray v. Manchester, 46 N. H. 59, 88 Am. Dec. 192.

A municipal corporation is not liable for failing to prevent coasting in the street, to one who is injured by a collision with a sled used for that purpose.

Dudley v. Flemingsburg, 115 Ky. 5,

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The government does not guarantee its citizens against all casualties incident to humanity, and cannot be called to compensate by way of damages its inability to protect against such accidents and misfortunes.

Jones v. Williamsburg, 97 Va. 722, 47 L.R.A. 294, 34 S. E. 883.

A city cannot be held liable for an injury to a third person which might have been prevented by the ordinary diligence of its police, nor where the

negligence of the police in enforcing

an ordinance contributed to the injury.

Ogg v. Lansing, 35 Iowa, 495, 14 Am. Rep. 499; Calwell v. Boone, 51 Iowa, 687, 33 Am. Rep. 154, 2 N. W. 614; Easterly v. Irwin, 99 Iowa, 694, 68 N. W. 919; McFadden v. Jewell, 119 Iowa, 321, 60 L.R.A. 401, 97 Am. St. Rep. 321, 93 N. W. 302; Lahner v. Williams, 112 Iowa, 428, 84 N. W. 507; Joyce, Nuisances, 354; Arnold v. Stanford, 113 Ky. 852, 69 S. W. 726; Anderson v. East, 117 Ind. 126, 2 L.R.A. 712, 10 Am. St. Rep. 35, 19 N. E. 726; Edson v. Olathe, 81 Kan. 332, 36 L.R.A. (N.S.) 861, 105 Pac. 521.

De Graff, Ch. J., delivered the opinion of the court:

The defendant city challenged, by demurrer, the plaintiff's cause of action on the primary ground that the patrolling or guarding of a public street, temporarily set aside by the superintendent of public safety for coasting purposes, is a matter involving the exercise of a governmental or police power, and for any injury arising therefrom the city is not liable. The trial court sustained the demurrer. It is to this ruling that the appeal is directed.

This is a suit by the administratrix to recover damages for the death of Harold Harris, a boy about eight years of age, who was killed February 17, 1923, by colliding with an automobile while he was coasting on Twenty-fifth street in the defendant city.

It is alleged by plaintiff in her petition that prior to the accident in question, John MacVicar, a duly elected and qualified councilman of

209 N. W. 454.)

the city of Des Moines, and acting in the official capacity of superintendent of public safety of said city, temporarily set aside and appropriated Twenty-fifth street between Chester and Pleasant streets for use by the children in that neighborhood for coasting, and at said time issued orders to the officers in his department to set aside and appropriate said street between said intersections for coasting purposes, and, pursuant to said orders, there was caused to be placed at the intersecting streets along Twenty-fifth street, between Chester and Pleasant streets, placards announcing that said street was reserved for coasting, and also caused notices to be published in certain papers of general circulation in Des Moines, apprising the public that said street had been reserved for such purpose, and that, pursuant to the said orders of the superintendent of public safety, guards were stationed at the intersecting streets on said Twentyfifth street, presumably to divert traffic, and more especially automobiles, from the use of said street during the time it was used for coasting.

It is further alleged that the authority of the superintendent of public safety is found in § 1200 of the ordinances of said city, to wit: "The department of public safety shall have and exercise all powers and duties in relation to the management of street traffic in the city of Des Moines.”

The negligence, as pleaded, is to the effect that the defendant city permitted a dangerous condition to arise on said street and failed to guard and to barricade or rope off said street at the time of the accident so as to prevent automobiles or other vehicles entering upon said street while it was being used for coasting purposes.

On the threshold of this case it is well to observe that we are not dealing with a liability resulting from a defect in the condition of a street. The condition of a street is one thing, and the manner of its use by

the public is quite another thing. A municipality does not guarantee its citizens against all casualties incident to humanity, and cannot be called upon to com

Highways-mu

nicipal liability pensate, by way of for accident on. damages, its inability to protect against all accidents and misfortunes. See Jones v. Williamsburg, 97 Va. 722, 47 L.R.A. 294, 34 S. E. 883; 6 McQuillin, Mun. Corp. § 2771.

It may be further observed that the doctrine of nuisance is not involved in the instant case, and the decisions bottomed on this theory are not applicable. See Wheeler v. Ft. Dodge, 131 Iowa, 566, 9 L.R.A. (N.S.) 146, 108 N. W. 1057; Stokes v. Sac City, 162 Iowa, 514, 144 N. W. 639. We recognize that the creation and maintenance of a nuisance is not a governmental function. Fitzgerald v. Sharon, 143 Iowa, 730, 121 N. W. 523. The pleaded damage is predicated on the defendant's negligence, for which the plaintiff is entitled to recover, if at all.

It is said in Lafayette v. Timberlake, 88 Ind. 330: "The manner in which a highway of a city is used is a different thing from its quality and condition as a street. The construction and maintenance of a street in a safe condition for travel is a corporate duty, and for a breach of such duty an action will lie; but making and enforcing ordinances regulating the use of streets brings into exercise governmental, and not corporate, powers, and the authorities are well agreed that for a failure to exercise legislative, judicial, or executive powers of government, there is no liability."

This is the declared rule in this state. Ball v. Woodbine, 61 Iowa, 83, 47 Am. Rep. 805, 15 N. W. 846; Heller v. Portsmouth, 196 Iowa, 104, 194 N. W. 271.

The democracy of a public highway or a street is judicially set forth in Roennau v. Whitson, 188 Iowa,

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such an act as to constitute a public nuisance. This thought is expressed in the courts of last resort in many of our sister states.

"It could not be seriously contended that for the municipal authorities to permit coasting upon such a street would be to license a public nuisance." Burford v. Grand Rapids, 53 Mich. 98, 51 Am. Rep. 105, 18 N. W. 571.

See also Jackson v. Castle, 80 Me. 119, 13 Atl. 49; Hutchinson v. Concord, 41 Vt. 271, 98 Am. Dec. 584; Pierce v. New Bedford, 129 Mass. 534, 37 Am. Rep. 387; Ray v. Manchester, 46 N. H. 59, 88 Am. Dec. 192; Dudley v. Flemingsburg, 115 Ky. 5, 60 L.R.A. 575, 103 Am. St. Rep. 253, 72 S. W. 327, 1 Ann. Cas. 958; Wilmington v. Vandegrift, 1 Marv. (Del.) 5, 25 L.R.A. 538, 65 Am. Rep. 256, 29 Atl. 1047; Barber v. Roxbury, 11 Allen, 318; Faulkner v. Aurora, 85 Ind. 130, 44 Am. Rep. 1.

The doctrine of respondeat superior, as applied to the acts of agents of a municipal corporation, is subject to well-defined limitations. Field v. Des Moines, 39 Iowa, 575, 18 Am. Rep. 46; Bradley v. Oskaloosa, 193 Iowa, 1072, 188 N. W. 896; Hilgers v. Woodbury County, 200 Iowa, 1318, 206 N. W. 660; Norman v. Chariton, Iowa, 207 N. W. 134.

In Pettengill v. Yonkers, 116 N. Y. 558, 15 Am. St. Rep. 442, 22 N. E. 1095 (quoting from an earlier decision), it is said: "To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or nonfeasance is complained of is a part of the machinery for carrying on municipal government, and whether it was at the time engaged in the discharge of a duty or charged with a duty primarily resting upon the municipality."

We deem it unnecessary to differentiate further between governmental and corporate powers of a municipality. Both species of power are exercised by a municipal corporation, and as a general rule there

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