was made against the relief association, the claimant should first file a release of the railroad company from any claim for damages. When the application was made by the plaintiff to the association for benefits, it was placed, not upon the ground that he was disabled by reason of injuries resulting from the collision, but upon the ground that he was disabled by illness resulting from malaria (a word which seems to have a very wide, varied, and some times indefinite, application), from jaundice, and from constipation, and perhaps other causes. It was fortified by the certificate of the plaintiff's physician, who testifies that when he made it he knew it was not true, but made it at the urgent request of the plaintiff and his wife, who both insisted that the claim should be made in that way. The application was honored, and the benefits under the clause or provision of the by-laws of the association relating to such cases were paid to and received by the plaintiff, to the amount of about $330. Upon the trial the plaintiff claimed, and introduced testimony-including the testimony of his physician, and of other physicians as experts-in support of his claim, that the injury received by him at the collision was the cause of all the ailments and disabilities stated in the certificate upon which he received benefits as above stated from the association, and that by reason of that injury an abscess of the liver was occasioned; that he suffered from an attack of jaundice, and from stammering, the latter induced by the injury to his spine received at the time of the collision; and that all these results were likely to be permanent, disabling him from labor, and probably shortening his life. Testimony of experts and others, controverting that offered by the plaintiff, was introduced by the defendant, and testimony tending to prove that the results shown were brought upon the plaintiff by his own imprudence in disregarding the advice of his physician, and working in August and September, as herein before set forth. At the trial the jury were instructed with reference to their general verdict, and were also directed to answer in writing four questions proposed by the court. Those questions, with the answers, were as follows: 1. Were the injuries sustained by the plaintiff,-to wit, abscess of the liver, jaundice, and stammering, or any of them, caused by the collision of the freight trains of the defendant on the 18th day of August, 1883, or did he bring them upon himself by performing the work of a fireman on the defendant's road between the 18th of August and the 1st of October, 1883? If the injuries sustained were caused partly by the collision and partly by his performing work, the jury will so state. A. The injuries sustained are due partly to the collision, and partly to the work subsequently performed by the plaintiff. 2. What amount of damage did plaintiff suffer from said injuries? A. $7,000. 3. If the jury find that the injury resulted in part from the collision and in part from the plaintiff's subsequently working as fireman, how much of the damage is attributable to the -collision, and how much to the plaintiff's subsequent work as fireman? A. $3,500. 4. What amount of damages has the plaintiff sustained by reason of said collision, without taking into account jaundice, abscess of the liver, or stammering? A. $20. The general verdict was in favor of the plaintiff for $3,520. The plaintiff moves for a judg ment for $7,000 upon the special verdict in answer to the second question. The defendant moves for a new trial for the reasons (1) that the verdict and several findings by the jury are not supported by sufficient evidence and are contrary to law; (2) that the damages are excessive; and (3) that the court erred in refusing to give to the jury the several charges asked by the defendant. The defendant also moves for judgment in its favor upon the first question and answer, notwithstanding the general verdict. This motion is inconsistent with defendant's motion for a new trial, but it will be considered as an alternative motion. Upon the trial, questions were raised as to the effect of the representations made by the plaintiff in his application to the relief associa tion for benefits. The defendant's contention was that the plaintiff was estopped by these representations, and by accepting the benefits paid him in reliance upon them, from claiming damages against the defendant. The plaintiff, on the other hand, contended that the provision in the by-laws of the association requiring, as a condition precedent, the filing of a release of the defendant from any claim for damages, was void as against public policy. Upon these propositions the court instructed the jury as follows, as appears from the stenographic report of the charge: "It is urged that that was an illegal arrangement; that the law does not permit an employer to stipulate for immunity from the damages which his em ployees may sustain by reason of his negligence. That, as a general proposition, gentlemen, is well stated. That is the law. But it does not apply to this case, for this reason: There is no stipulation that the members of the relief association shall not be at liberty to sue the Baltimore & Ohio Railroad Company for damages resulting from accidents attributable to the negligence of that company. If there were, that, in my opinion, would be an illegal stipu lation. It would be against public policy. But the stipulation is, in effect, that when a member of the relief association, who is an employee of the Baltimore & Ohio Railroad Company (and no one else can be a member), sustains such injuries, he may make his election to sue the railroad company for damages, or, waiving that right, he may rely upon the benefits stipulated by the relief association. Now, that is perfectly legitimate and proper, and there can be no possible objection to it. I am unable to agree with counsel that the by-law applies only in cases of accident unaccompanied by negligence, and that a casualty resulting from negligence is not an accident. In a strict, technical sense that may be true, but it is not true, in my opinion, in the sense in which the word is used in the by-laws of the association, because there would be no occasion for the release of a claim for damages for injuries from an accident occurring without the fault or negligence of the railroad company, inasmuch as in such a case no liability would be incurred by, or could be enforced against, the company. The manifest meaning of the by-law is that it applies to cases where the employee might maintain an action for damages against the railroad company. It puts him to his election. He can sue the railroad company, or he can take the benefits from the relief association. This is quite as legitimate as it is to settle claims of this character out of court by private negotiations, which is done constantly, and, if fairly done, nobody thinks of questioning it." The question, that the subsequent ailments of the plaintiff to wit, abscess of the liver, jaundice, and stammering-resulted in part from the col lision, and in part from his own imprudence; that the damage was capable of apportionment, $3,500 of the subsequent damage being attributable to the collision, and the same amount to his working as fireman after the collision,— was, in the opinion of the court, fairly derivable from the evidence. The general rule is stated in 2 Thompson on Negligence, 1162, to With reference to the representations made be that "contributory negligence is never looked by and on behalf of the plaintiff upon his ap- to in mitigation of damages; but, whenever it plying to the relief association for benefits, the is shown to exist, it is a complete bar to the charge was as follows: "Now, it is insisted by action. To this there is obviously this excepthe defendant that, inasmuch as those represen- tion: if the injury produced by the plaintiff's tations were made by the plaintiff, and sup- negligence is capable of a distinct separation ported by the certificate of his physician, who and apportionment from that produced by the testifies that he knew that they were untrue, defendant's negligence, it should be excluded and that he made them at the urgent request by the jury in estimating the damages, and they of the plaintiff and his wife,-both insisting that may assess against the defendant those damages the claims should be made in that way, the which followed separately from his act. plaintiff ought to be estopped in this suit from rule, stated another way, is that the person inasserting that his injuries resulted from the col- jured is not entitled to recover for any enhancelision, and did not result from the causes to ment of damages produced by his own want of which he attributed them in his application to care." This statement of the law must, howthe association for relief. Gentlemen, I cannot ever, be taken with a proper understanding. give my assent to that proposition, for the rea. Where the negligence of the plaintiff contribson that the Baltimore & Ohio Railroad Com. utes to the original cause of the injury, it is fatal pany is one corporation, and the relief asso- to his claim for damages, unless it appears ciation is another corporation, and the two that the defendant, notwithstanding the plaincorporations are as separate and distinct as two tiff's negligence, might have avoided the cause individuals. The benefits received by the of the injury and failed to do so. In this cause plaintiff were paid by the association, and out the finding of the jury was, in substance, that of the funds of the association, and not by the the injury sustained by the plaintiff resulted railroad company; and there is no privity to solely from the negligence of the defendant support an estoppel against the plaintiff and in (and in this the testimony was altogether and favor of the railroad company. The railroad overwhelmingly in favor of their finding), but company was nothing but a guarantor, and it that it was subsequently, by acts of the plainis laid down that a guarantor is not in privity tiff entirely distinct and separate from the causa with his principal for the purposes of an estop-causans, aggravated. In other words, the jury pel. Bigelow, Estop. 75, and cases cited. It is found that the damages resulting from the coltrue that there was a possibility that the rail- lision were, immediately, $20, and subsequentroad company, as guarantor, might be affected ly, by development of the injuries then received, by the payment of the benefits received by the $3,500 additional; and further, that the plainplaintiff, amounting to about $330. It was pos- tiff, by his own acts subsequent to and entirely sible, because all things are possible in financial disconnected from the collision, aggravated affairs, that claims against the association those injuries to his damage in the additional should exhaust its own funds, and compel it to sum of $3,500. And the jury, by their general draw upon the guaranty fund: but no such verdict, said that the defendant was liable for contingency arose, and the association, when it the damages sustained by the plaintiff at the paid those benefits, had in its treasury, as is time of the collision and caused thereby, and disclosed by the evidence, over half a million those resulting subsequently therefrom, but not dollars, made up by the contributions and as- for any aggravation by his own acts of those sessments paid by its members. The railroad injuries and the damages resulting from such company was not, therefore, directly involved, aggravation. and the possibility that it might be ultimately involved was and is so remote that you need not consider it. The court holds that there is no estoppel in this case." The jury were also charged that they ought to take into account the statements made by plaintiff and by his physician in support of his application for benefits, in weighing their evidence as witnesses in this cause; and, taking into account their explanations, also determine what credit to give to their evidence. The court reaffirms these rulings, and they dispose of the points made on the motion, excepting those relating to the findings by the jury that the plaintiff aggravated his injuries by his own acts subsequent to the collision. The finding by the jury, in answer to the third Now, turning to § 19 of Beach on Contributory Negligence, we find a statement of the law exactly in point: "When the subsequent negligence of the plaintiff contributes, not to cause, but to aggravate, the injury, it will not, as has been hitherto suggested, avail the defendant as a defense, for the obvious reason that howsoever much it may have increased the damage, it did not cause the injury, and the defendant's negligence did cause it, which is the ground of his chargeability." In support of this statement of the law, see Gould v. McKenna, 86 Pa. 297; Secord v. St. Paul, M. & M. R. Co. 5 McCrary, 515; Sills v. Brown, 9 Car. & P. 601; and Greenland v. Chaplin, 5 Exch. 243, 247. In Greenland v. Chaplin, Pollock, C. B., said: "The man who is guilty of a wrong, who thereby produces mischief to another, has no right to say: Part of that mischief would not have arisen if you had not yourself aggravated the injury which my negligence caused;' and whenever the injury produced by the plaintiff's negligence is capable of a distinct separation, an apportionment must be made, and the defendant held liable only for such part of the total damage as his negligence produced." So, again, in Shearman & Redfield on Negligence, 35: "Where the plaintiff, by his own fault, aggravates his injury and increases the extent of his damage, but has not actually contributed to the whole injury which he has suffered, he is entitled to recover to the extent of the damage which he has suffered without his fault, but not for that portion of the damage to which he has thus contributed." To same point, Sherman v. Fall River Iron Works Co. 2 Allen, 524; Wright v. Mississippi & I. Teleg. Co. 20 Iowa, 195. ble,"-citing Plummer v. Penobscot L. Asso. 67 Me. 363; Willmot v. Howard, 39 Vt. 447; and Hathorn v. Richmond, 48 Vt. 557. In Saunders v. London & N. W. R. 98 E. C. L. 887, the person injured had disregarded the advice of his physicians to abstain from business for two years, and had, because of such disobedience, become permanently incapacitated from doing business, whereas, if he had rested, he would probably have regained his health. The court refused to disturb a verdict in his favor for compensatory damages. These authorities are clear and to the point. They correctly state the law applicable to this case. The defendant's objection that the general. verdict of the jury is not sustained by the evidence is not well founded. The evidence was conflicting, as it generally is when experts are called to testify, and the case was peculiarly one to be left to the jury to decide. Upon the eviAnd in Cooley on Torts, 683, we find the fol- dence the court would not be warranted in setlowing: "It is no answer to an action that the in- ting aside the verdict apportioning the damage. jured party subsequent to the injury was guilty The plaintiff's motion for judgment for $7,000, of negligence which aggravated it. The neg- and the defendant's motion for a new trial, and ligence that will constitute a defense must have for judgment notwithstanding the verdict, are concurred in producing the injury. It is never-overruled. Judgment will be entered upon the theless the duty of the party injured to take general verdict for the plaintiff for $3,520, with care that the damage shall be as light as possi- | interest from the first day of the trial term. NEW JERSEY COURT OF ERRORS AND APPEALS. LINDLEY, Piff. in Err., D. O'REILLY. 1. In cases of contract, trust, or fraud, the equity courts of one State or country, *Headnotes by DEPUE, J. having jurisdiction of the parties, are competent to entertain a suit for specific performance or to establish a trust or for a conveyance, although the contract, trust, or fraudulent title pertains to lands in another State or country. But a decree in such a suit imposes a mere personal obligation, enforceable by injunction, attachment, or like 591; Shattuck v. Cassidy, 3 Edw. Ch. 152. The fact that land which may be affected by the decree lies NOTE.-Specific performance; action transitory. in another country is no valid objection to the juActions upon contract have always been regarded as risdiction. Wilcocks v. Wilcocks, 2 Vern. 558; Penn transitory, and are equally so whether they relate v. Baltimore, 1 Ves. Sr. 444. So a trustee residing in to real or personal property. Mott v. Coddington, 1 one State may be compelled to make a conveyance Abb. Pr. N. S. 296, 1 Robt. 273. The court of equity of real estate situated in another. Vaughan v. Barbas jurisdiction whenever the parties or the sub-clay, 6 Whart. 392: Massie v. Watts, 10 U. S. 6 Cranch, ject, or a portion of the subject is within the jurisdiction. Mussina v. Belden, 6 Abb. Pr. 174. In cases of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree. French v. Maguire, 55 How. Pr. 474. See Bailey v. Ryder, 10 N. Y. 363; Newton v. Bronson, 13 N. Y. 587; Gardner v. Ogden, 22 N. Y. 327; Story, Eq. § 899. 148 (3 L. ed. 181). And although the courts cannot bind the land itself by the decree, yet they can bind the conscience of the party in regard to the land,and compel him to perform his agreement according to conscience and good faith. Moore v. Jaeger, 2 McArth. 471; Port Arlington v. Soulby, 3 Myl. & K. 104; Toller v. Carteret, 2 Vern. 495. It may be enforced by process in personam. Baldwin v. Talmadge, 7 Jones & S. 407. Contract for sale of lands situated in another State. Decree, how enforced. The decree rendered in anA court of equity may decree the specific per- other State, so far as it relates to the real property formance of a contract for the sale of lands in a in question, could have no extraterritorial effect; foreign State, and may compel a conveyance of the but, if valid, it binds personally those who were land, where the person of the defendant is within parties in the case, and could have been enforced the reach of its process. Sutphen v. Fowler, 9 in the situs rei, by the proper proceedings conductPaige, 280; Cleveland v. Burrill, 25 Barb. 533; Gard-ed there for that purpose. Cheever v. Wilson, 76 U. Der v. Ogden, 22 N. Y. 339. See Mead v. Merritt, 2 S. 9 Wall. 108 (19 L. ed. 604). See Swann v. FonnePaige, 402; Hawley v. James, 7 Paige, 213; Port Ar- reau, 3 Ves. Jr. 44; Monroe v. Douglas, 4 Sandf. Ch. lington v. Soulby, 3 Myl. & K. 104; Brown v. Des- 185; Shattuck v. Cassidy, 3 Edw. Ch. 152; 1 Story, Eq. mond, 100 Mass. 267; Davis v. Parker, 14 Allen, 94; 88 743, 744. 1 Pom. Eq. Jur. 119. It will, where the proper par- Full faith and credit to be given to State records and ties are within the territorial sovereignty, or within judicial proceedings. The records and judicial prothe reach of the territorial process, administer full ceedings to which full faith and credit are to be relief, although the property in controversy is ac-given are only such as are duly rendered by a comtually situated in a foreign country, unless, indeed, petent court having full jurisdiction, without refthe relief which is asked is of a nature which the erence to whether they are superior courts of court is incapable of administering. House v. Lock-record or inferior tribunals. Aldrich v. Kinney, 4 wood, 40 Hun, 534; Baldwin v. Talmadge, 7 Jones & Conn. 30; Bissell v. Briggs, 9 Mass. 462; Taylor v. 8. 407; Mitchell v. Bunch, 2 Paige, 606; Ainsley v. Barron, 30 N. H. 78; Silver Lake Bank v. Harding, 5 Mead, 3 Lans. 128. It has the same jurisdiction in Ohio, 545: Pelton v. Platner, 13 Ohio, 209. Under this class of cases as that possessed by the former this clause of the Constitution, if a decree is encourt of chancery. Newton v. Bronson, 13 N. Y. forceable in the State where rendered, it is enforce See also 7 L. R. A. 87; 28 L. R. A. 116. process against the person, and cannot operate | 2. This rule rests upon the principle that trusts, or perform the duties, devolved upon him. 4. F, by his will, disposed of all of his estate, real, personal, and mixed, upon certain trusts for the benefit of his wife during her life, and after her death for the establishment of a charitable institution; and constituted the Right Reverend J. F. W., Roman Catholic Bishop of Philadelphia, and his successors in office, executors. He provided that his widow should, during her lifetime, have the interest of all his estate, real, personal, and ertheless be good at law,-the relief being in equity and at the instance only of the cestuis que trust whose interests were prejudiced thereby. 5. The Act of March 17, 1882 (Pub. Laws 1882, p. 112), which provides for recording foreign wills for the purpose of making title to Tands in this State, and making the transcripts of such record legal evidence of title, applies only to foreign wills that have been admitted to probate in the State from which the copy of the will has been exemplified. Probate in the foreign jurisdiction, as evidence of the factum of the will, is a condition precedent to its being made a record in this State; and that jurisdictional fact must appear by the certificate transmitted with the copy of the will An affidavit that the will has been admitted to probate in the State from which the copy was exemplified is not competent to establish that fact. Where the object of making such 6. will a record in this State is for the purpose of making title to lands, the record exemplified from another State must contain the proofs taken on the probate, that it may appear that the will was made and executed in the manner and with the formalities prescribed by the statutes of this State for devises of lands. mixed; and that if the interest arising annually ER should not be sufficient to maintain her, his executor or his successors should give her annually a sufficient amount of the principal to maintain her according to her station in life. For the establishment of the charitable institution, the testator directed his executor or successors in office to purchase a suitable farm for that purpose; and that the balance of the money arising out of his estate (if any), after the death of his wife and the purchase of the farm, should be appropriated to the erection of suitable buildings for the institution; and any surplus remaining should be put out at interest and applied for improvements. The will contained no devise to the executor in express words, nor any express grant of power to sell lands. Held: (a) That the executor took by implication a fee in the testator's lands, or at least a power of sale, and that in either event his deed would convey the legal title. (b) That if conveyance by the executor was prematurely made, or for an inadequate consideration, in breach of trust, the title would nevable in any State (Caldwell v. Carrington, 34 U. S. 9 Pet. 86, 9 L. ed. 60); but it does not give validity to a void decrce (Ogden v. Saunders, 25 U. S. 12 Wheat. 213 (6 L. ed. 606); Vanuxem v. Hazlehursts, 4 N. J. L. 192). Its object was to preclude judgments from being disregarded in other States when a proper tribunal having jurisdiction had rendered them. People v. Dawell, 25 Mich. 247. Executor entrusted with power to sell. Where executors are named in a will with power to sell real estate, they are trustees as well as executors. Greenough v. Welles, 10 Cush. 571; Treadwell v. Cordis, 5 Gray, 341; Wills v. Cowper, 2 Ohio, 124; Vardeman v. Ross, 36 Tex. 111; Smith v. McConnell, 17 Ill. 135; Knight v. Loomis, 30 Me. 204; Evans v. Chew, 71 Pa. 47; Conklin v. Egerton, 21 Wend. 430. If the testator directs the estate to be disposed of for certain purposes, or to be invested, the power to sell is implied. Rankin v. Rankin, 38 Ill. 293; Cherry v. Greene, 2 West. Rep. 818, 115 Ill. 591; Going v. Emery, 16 Pick. 107; Kauffman v. Breckenridge, 5 West. Rep. 148, 117 II. 306; Wms. Exrs. 655; 1 Jarm. Wills, 528. The power to sell includes the grant of everything necessary to carry the power into effect, as fully in every respect as if exercised by the grantor himself. White v. Miller, 71 N. Y. 118: Nel3on v. Cowing, 6 Hili, 336; Sandford v. Handy, 23 Wend. 260. Where it is stated in the will: "It is my will that my executor hereinafter to be appointed shall have full power to convey and release all (August 9, 1888.) RROR to the Supreme Court to review a judgment upon a verdict directed for plaintiff in ejectment. Reversed. of ejectment brought by Catherine O'Reilly Messrs. Thomas B. Harned and D. J. Depue, J., delivered the opinion of the court: Patrick O'Reilly died in 1881. In his lifetime he was seised of a tract of land in the county of Atlantic, in this State, the subject property conveyed to him by this will," such executor has express power to convey and to maintain a bill for the specific performance of a sale which he contracts. Bates v. Woodruff, 11 West. Rep. 567, 123 Ill. 205. So where executors empowered by will to sell real estate enter into an executory contract for such sale, its performance may be enforced in equity at suit of the purchaser. Bostwick v. Beach, 5 Cent. Rep. 3-8, 103 N. Y. 414; Bowen v. Irish Presb. Cong. 6 Bosw. 245; Demarest v. Ray, 29 Barb. 563. A power to sell, given in a will, gives no power to mortgage the estate. Kinney v. Mathews, 69 Mo. 520; Turner v. Timberlake, 53 Mo. 371; Hoyt v. Jaques, 129 Mass. 286; Downey v. Bissell, 4 Fed. Rep. 55; Albany F. Ins. Co. v. Bay, 4 N. Y. 19; Cumming v. Williamson, 1 Sandf. Ch. 17; Waldron v. McComb, 1 Hill, 111; Bolton v. Jacks, 6 Robt. 166; Sohier v. Williams, 1 Curt. 479; Devaynes v. Robinson, 24 Beav. 86. Executors as trustees.-Where executors are authorized to divide the estate into parts and sell the same, and invest the proceeds for the benefit of the children, it is a valid power in trust. Craig v. Craig, 3 Barb. Ch. 76. A trustee created by will is not such a trustee as an executor is. He is also different from one whom the law converts into a trustee by his own inequitable conduct. An executor proper is he to whom the execution of a last will and testament of personal estate is by the testator's appointment confided. Fulton v. Whitney, 5 Hun, 21 filed a bill in equity in the Court of Common Pleas of the County of Berks, against the Right Reverend James F. Wood, executor of the last will and testament of Henry F. Felix, Alicia Kate Felix, widow of said Henry F. Felix, and the religious order of the Sisters of the Immaculate Heart of Mary. of controversy in this suit. By his will, dated | nia. On the 4th of December, 1867, O'Reilly December 5, 1877,-proved before the surrogate of Atlantic County, July 5, 1881, and letters testamentary granted thereon, he devised his entire estate to the plaintiff, his wife, for life. Exception was taken to the admission of a certified copy of this will, but the printed case does not contain a full copy of the will, nor does any assignment of error touch the competency of this evidence. It must be assumed that this will was duly executed to devise lands under the laws of this State, and that the same was duly probated to make a certified copy competent evidence. On this presentation of title the plaintiff would have been entitled to a verdict. The obstacle in the way of the plaintiff's recovering in virtue of her title under her husband's will arose from a deed made by O'Reilly and wife to one Henry Francis Felix on the 14th of January, 1861. This deed purported to be an absolute conveyance in fee simple for the consideration of $18,000. To sustain title under her husband's will, it was necessary for the plaintiff to overcome or extinguish the legal title thus conveyed. The plaintiff contended at the trial that the deed to Felix was in fact a mortgage, and that the debt or liability for which it was given was paid and satisfied; and that, on the discharge of the obligation for which the conveyance was made, the estate of the mortgagee was extinguished. In a trial at law it is not competent to show by oral testimony that an absolute deed was in reality a mortgage. In our judicial system the jurisdiction to convert an absolute deed into a mortgage by parol evidence is exclusively in the equity courts. The competency and effect of the evidence produced by the plaintiff for this purpose are the issues raised by the bill of exceptions and assignments of error. The bill set out that the Right Reverend James F. Wood was a resident of Philadelphia, that Alicia Kate Felix resided in Reading, and that the religious order of the Sisters of the Immaculate Heart of Mary was a society established in Reading. It charged that the deed of conveyance made by O'Reilly to Felix was in legal effect a mortgage; that the same was made as security to indemnify Felix against his liability on certain promissory notes made by O'Reilly and indorsed by Felix, and discounted by the Farmers Bank of Reading, and under protest, and that subsequently the said notes were fully paid and satisfied by the said O'Reilly; that the said Felix sustained no loss or damage in consequence of the said indorsements; and prayed a reconveyance of the legal title. The defendants named in the bill appeared and filed an answer. By consent of parties an examiner was appointed January 27, 1868, who filed his report November 1, 1869; and in September, 1880, the case was brought on for hearing by consent on the bill, answer, and report of the examiner; and on the 20th of September, 1880, a decree was signed, in which, after reciting that the court being satisfied that the allegations that the plaintiff's bill were correct and true, and that all the notes indorsed by Felix, and liabilities incurred by him for O'Reilly, had been by O'Reilly fully paid, discharged, and satisfied, it was ordered and decreed that the Right Reverend James F. Wood, executor of the last will and testament of deceased, should execute and deliver to Patrick O'Reilly a deed of reconveyance of the premises in fee simple. Felix died in 1866. By his will he gave all his property for the benefit of his wife, Alicia Kate, and a charitable society known as "the Sisters of the Immaculate Heart of Mary," and All the parties to the suit resided in Pennsylmade the Right Reverend James F. Wood, Rom- vania. The Pennsylvania court had jurisdican Catholic Bishop of Philadelphia, executor. tion of the parties and also of the subject matFelix, at the time of his death, resided atter of the suit. The contested problem is the Reading, in the county of Berks, Pennsylva- effect of its decree upon the title to lands in Where possession with general power of control and management is given to the executors, power to lease, collect rents, and receive profits is of course included. Clark v. Horntball, 47 Miss. 500. A trust will be implied in executors, when the duties imposed are active, and render the possession of the legal estate in the executors convenient and reasonably necessary, although it may not be absolutely essential to accomplish the purposes of the will, and when such implication would not defeat, but would sustain, the dispositions of the will. Robert v. Corning, 89 N. Y. 237. See Bradley v.Amidon, 10 Paige, 235; Tobias v. Ketchum, 32 N. Y. 329; Vernon v. Vernon, 53 N. Y. 351; Morse v. Morse, 85 N. Y. 53: Brewster v. Striker, 2 N. Y. 19. A devise of the rents and profits of testator's land to his sister for life, to be paid by his executors into her own hands, is not a devise of the lands to her, but to his executors in trust to receive the rents and profits for her use during life. Bowen v. Payton, 14 R. I. 259. Record of foreign probate. In New Jersey the supreme court bas decided in Nelson v. Potter, 21 Vroom, 324 (cited in the principal case above) that, (1) The probate of a will in one State, though conclusive as to personalty, if the probate be made at the testator's domicile, is of no force in establishing the sufficiency or validity of a devise of lands in another State; it can obtain such force only in virtue of some law of the State in which the land lies. (2) The Act of 1882 (Pub. Laws 112), amended and reenacted May 11, 1886 (Rev. Sup. 775), which authorizes the recording of wills probated in another State for the purpose of making title to lands in this State, simply makes such record or a transcript thereof competent evidence, dispensing with proof by the subscribing witnesses, leaving the legal effect of the will as a devise of lands to be determined as it would be if the original will was produced and proved. (3) A will recorded under the last-mentioned statute, though executed in a manner sufficient to devise lands at the testator's domicile, will not operate to devise lands in this State unless executed in the manner required for a devise of lands under the laws of this State. Under the provisions of New York Code Civ. Proc. § 2703, on this subject, the following has been decided: To justify recording, in the surrogate's office, of the exemplified copy of the foreign probate of a will of real property, pursuant to Code Civ. Proc. § 2703, the proofs taken on the foreign probate must show that the will was executed according to the laws of this State. Re Langbein, 1 Dem. 448. See Code, § 2694. Such record is made presumptive evidence of the will, and of the execution thereof, in any action or special proceeding relating to the real property. Bromley v. Miller, 2 Thomp. & C. 575. See also Code Civ. Proc. § 2694. |