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case of such default a court having equity powers might appoint a receiver. In Shaw v. Norfolk County R. Co., 5 Gray, 162, a railroad corporation conveyed all its property and franchises to three trustees, by deed, conditioned to be void on payment of certain bonds issued by the corporation, and stipulating that the directors might, upon any breach of conditions, take possession and apply the net proceeds to the purpose of the trust; and it was held that it was competent for a court of equity to appoint a receiver. In Shipley v. Atlantic & St. Lawrence R. Co., 55 Me. 395, a mortgage was executed by the railroad company to trustees, and it was stipulated therein if the company should at any time fail to pay the interest or principal of the bonds according to their tenor, the mortgagees might take tho mortgaged property into their actual possession, manage and control the same, and apply the net income and proceeds thereof to the payment of such interest and principal. The court held that it had jurisdiction to decree a specific performance of the stipulation in the mortgaged property for the non-payment of the bonds. In American Bridge Co. v. Heidelbach, 94 U. S. 798, a company, to secure the payment of its bonds, mortgaged its property and the rents, issues, and profits arising therefrom, with the provision that if there was default in paying the interest, the mortgagees might take possession of the property, manage the same, and receive and collect all rents and claims due and to be

come due to the company. The court said: "In this case, upon the default which occurred, the mortgagees had the option to take personal possession of the mortgaged premises, or to file a bill, have a receiver appointed, and possession delivered to him. In either case the income would thereafter have been theirs." To the same effect are the text-books: "A court of equity has jurisdiction to order a specific performance of a stipulation in a railroad mortgage authorizing the trustees to take possession of the mortgaged property for the non-payment of the bonds secured, and a bill in equity is the proper form of proceeding to compel the company and its agents to deliver possession to the trustees." Jones on Railroad Sec., § 401. Sacramento & Placerville Railroad Co. v. Superior Court of San Francisco. Opinion by Morrison, C. J.

FINANCIAL LAW.

COUPON BONDS-HOLDER NOT BOUND TO PRESENT COUPON WITHIN A REASONABLE TIME AFTER DUE.

coupon is nothing but an acknowledgment of interest due, and is but an incident of the principal. It is attached to the bond and may be detached from it for the convenience of the holder. The possession by the corporation is evidence of its payment. The bankinghouse at which it was made payable were the agents of the corporation, and the holder could not lose in any event by its insolvency. Pennsylvania Supreme Court, June 14, 1880. Williamsport Gas Co. v. Pinkerton. Opinion per curiam.

USURY COMPOUND INTEREST CONDITION FOR ATTORNEY'S FEE. (1) In the absence of evidence to the contrary, the law will not presume that a contract is usurious. Mills v. Johnson, 23 Tex. 329. (2) Compound interest is not, of itself, usurious. Mills v. Johnson, 23 Tex. 329; Louis v. Paschal, 37 id. 318; Miller v. Boles, 11 Conn. 495; Turner v. Miller, 1 Eng. (Ark.) 468; Wilcox v. Hawland, 3 Pick. 169; Brown v. Brent, 1 Hen. & M. (Va.) 4. It is the usual practice with us to render judgment for the principal and interest then due, and this new principal to bear interest; this has been expressly decided not to be unlawful. Frazier v. Campbell, 5 Tex. 275; Coles v. Kelsey, 13 id. 78. (3) If a contract is lawful in other respects a conditional stipulation to pay the usual attorneys fees, in the event suit has to be instituted to enforce it, would be legal and founded upon a valuable consideration. Such fees, though not an element of damages in an ordinary suit for the collection of money, can be made such by express contract. Roberts v. Palmore, 41 Tex. 617. Texas Supreme Court, September, 1880. Miner v. Paris Exchange Bank. Opinion by Bonner, J.

INSURANCE LAW.

LIFE POLICY-VESTED INTEREST OF BENEFICIARY IN.-S. took a life policy upon his life, by the terms of which the amount of insurance was made payable upon the death of S. to his wife F., and in case of her death before his decease, the same was to be paid to his children. The wife E. died intestate, during the life of S., leaving two children, the fruit of her marriage. Before her death, S. had paid and performed all that was stipulated to be done on his part in the contract of insurance. S. remarried as a second wife L., by whom he had one child. He, after such marriage, surren dered the policy and took in its place a policy made payable to L. to her sole and separate use and benefit. This was done without consent of the children of S.

Plaintiff below held a coupon bond issued by defend-Held, that the surrender by S. was without authority ant below, the Williamsport Gas Co. One of the coupons read thus: "The Williamsport Gas Company will pay the bearer, at the banking-house of Kirk, MacVeagh & Co., West Chester, Penn., on the first day of December, 1875, twenty dollars, being six months' interest on bond No. 18. $20. T. Coryell, Treasurer." The firm of Kirk, MacVeagh & Co. was dissolved and succeeded by the Brandywine Bank, which occupied the same place of business as the firm and retained many of its accounts, among others that of the interest on the bond of plaintiff. On the 29th of November, 1875, the defendant remitted to the bank sufficient to pay all of the coupons on its bonds, due on December 1, 1875. The bank paid all the coupons presented up to December 22, 1875, when it became insolvent. Plaintiff did not present his coupon above mentioned anywhere for payment until March 3, 1877, when ho presented it to defendant. Held, that defendant was liable for the amount of the coupon. The corporation which issues a coupon bond is in the position of the maker of a promissory note, not of the drawer of a check or bill of exchange. There is no obligation on the holder to present and demand it within a reasonable time. The same rule applies to the coupons just as long as he can hold on to the bond without requiring payment. The

and the children were not thereby deprived of their rights under the original policy. Held, also, that his children included the issue by both marriages. The general rule upon the subject, is this: "That a policy of life insurance, and the money to become due under it, belong, the moment it is issued, to the person named in it as beneficiary, and that there is no power in the person procuring the insurance, by any act of his, by deed or by will, to transfer to any other person. Tho person designated in the policy is the proper person to receipt for and to sue for the money. The principle is that the rights under the policy become vested immediately upon its being issued, so that no person other than those designated in it can assign or surrender it, and that in such assignment or surrender all the persons must concur, or the interest of those not concurring is not affected." Bliss on Life Ins. (2d ed.), SS 317, 337. This is held to be the rule in Succession of Kegler, 23 Lon. 550. The transaction on the part of S. was in the nature of an irrevocable and executed voluntary settlement upon his wife and children of the sum secured to be paid by the policy at his death, conditioned that the same should be to her for her benefit should she survive him; but if not, then the same should be paid to his children, or, if minors, to their

guardian, for their sole use and benefit. Nothing remained to be done on his part to make the intended gift of the policy to the beneficiaries therein named complete and effectual as against himself and all mere volunteers claiming under him. In paying for the insurance and procuring the policy to be issued, payable, in express terms, upon his death, to his wife E., if then living, and if not, to his children, for their sole use and benefit, without any condition or stipulation reserving a right to change or alter any of the terms of the agreement, he did all that could well be done, under the circumstances, in the execution of an intention to vest in his said appointees the entire interest in the policy, and all rights thereunder. Adams v. Brackett's Ex'r, 5 Metc. 280; Landrum v. Knowles, 22 N. J. Eq. 594. What he did was a clear and distinct act, wholly divesting himself of all ownership or control over the money paid for the insurance, disclaiming any interest in the policy, or intention to take or hold it for himself or his legal representatives, at the same time putting it beyond his power so to do by the stipulation obligating the company to pay the sum insured, whenever it should become due, to such of the persons named in the policy as might then be entitled thereto by its terms. Taking the delivery of the policy from the company, under these circumstances, can only be construed as an act of acceptance for the designated beneficiaries, and his subsequent holding of the same as that of a naked depositary, without any interest, for those entitled thereto. Minnesota Supreme Court, September 24, 1880. Ricker v. Charter Oak Life Insurance Co. Opinion by Cornell, J.

FOR BENEFIT OF CHILD-CONSTRUED TO INCLUDE GRANDCHILD — STIPULATION IN POLICY CONTRAVENING CHARTER OF COMPANY LIFE POLICY

CONSTRUED LIKE A WILL.—(1) The charter of a Masonic life insurance company provided for the raising of a fund which should be paid for the benefit of the widow and children" of deceased members, and that "the fund created for the benefit of the widow and children of deceased members shall be paid to them by said company as soon as it can be collected, or to their trustee, in the discretion of the company; subject, however, to be appropriated for their benefit, equally, according to the will of the deceased member; or if he should leave no widow or child, then to be appropriated according to his will; or if he makes no will, or leaves no widow or child, it shall rest and remain in the company, and be added to its capital stock, or be appropriated as they may deem expedient." C., at the time of his death, held a certificate of membership in the company. When he procured it he was a widower and had only two children. Both died during his life; one without issue and the other leaving one child. C. left a will devising his residuary estate to his executor in trust, to be invested during the life of one of his children for her benefit, and after her death to be disposed of as directed in the will. No mention was made of the insurance fund. Held, that D., the grandchild of C., was entitled to the fund, and not the executor. To the general rule that the word "child" does not embrace a grandchild, there are two exceptions. First, where a will or writing would otherwise be inoperative, or the manifest intention would be defeated; or second, when a will or writing shows by other words, that the word was not used in its ordinary and proper sense, but in a more extended This case falls within the first exception. If it was held that it did not, then, when a member dies intestate, and without wife or child, the proceeds of his membership are forfeited to the company, even though he may leave lineal descendants surviving. No construction should be adopted which would lead to such consequences. A life policy for the benefit of the family of the person procuring it. though not a

sense.

testament, is in the nature of a testament; and in construing it, the courts should treat it, so far as possible, as a will; as, in so doing, they will more nearly approximate the intention of the person, the destination of whose bounty is involved in such cases. It is manifest, from the charter, a member of the company has no personal interest in his membership, and that his personal representative, as such, can never take any interest in it after his death. This is shown by the provision that if the member has no widow or child surviving, and no will, the fund shall vest in the company; and the further provision that the proceeds of the membership shall not be liable for the debts of the member. The charter gives a mere power of appointment in case he has neither wife nor child, and he has no interest whatever in the fund, and it did not, therefore, pass under a will merely disposing of all estate, but in which no mention is made of the fund to arise from his membership. 4 Kent, 327. (2) A stipulation in the certificate of membership was, 'to pay

to said Crofoot's daughters, Anna and Lou. Crofoot, or his assigns, or as he may direct by will," etc. Held invalid. It is not in the power of the company, or of the member, or of both, to alter the rights of those who by the charter are declared to be the beneficiaries, except in the mode and to the extent therein indicated. Masonic Insurance Company v. Miller's Adm'r, 13 Bush, 494. Kentucky Court of Appeals, October 4, 1880. Duvall v. Goodson. Opinion by Cofer, C. J.

'CORRESPONDENCE.

BANKS' REVISED STATUTES.

Editor of the Albany Law Journal:

Messrs. Banks & Brothers have published a sixth edition of the Revised Statutes of the State of New

York, edited by George W. Cothran, for which I, along with other members of the profession, pay twenty dollars. The first volume is prefaced with the Constitution of the United States. What purports to be the thirteenth amendment to that instrument may be found at page 32 of Vol. I, and it is given in the following words:

"ARTICLE XIII.

"SECTION 1. Slavery, being incompatible with a free government, is forever prohibited in the United States, and involuntary servitude shall be permitted only as a punishment for crime.

"SEC. 2. Congress shall have power to enforce the foregoing section of this article by appropriate legislation."

The real thirteenth amendment to the Constitution of the United States reads as follows: (R. S. U. S., 2d ed., p. 30.)

except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

"SEC. 1. Neither slavery nor involuntary servitude,

"SEC. 2. Congress shall have power to enforce this article by appropriate legislation.'

Is it possible that Mr. Cothran, or the publishers, or whoever else may be responsible, have taken the same liberties with the statute laws of New York as he or they have taken with the Constitution of the United States? or have they confined their attentions of this character to the former instrument? Respectfully,

NEW YORK CITY, Dec. 1, 1880.

Wм. L. ROYALL.

SHADE TREES IN VILLAGE STREETS. Editor of the Albany Law Journal:

The charter of an incorporated village gives the directors (trustees) power to lay out, alter, repair and improve the streets, highways, lanes and alleys within the bounds of said village, and to cause the same to be guttered and curbed. A street in the village with the

paved way for teams and sidewalks for footmen, guttered and curbed between the two, has shade trees of twenty years' growth, or more or less, standing in the sidewalk near the gutter. Have the adjoining proprietors any right to the shade trees standing on the sidewalks, which the village authorities are bound to respect? Can the village directors, under the power given them by statute, cut the shade trees down, for the sake of widening the wagon track, and contracting the sidewalk, or to straighten a bend in the gutter? Will you, or some of your keen thinkers, who are more familiar with village rights, answer?

EGBERT WHITAKER.

SAUGERTIES, N. Y., Dec. 1, 1880.

JUSTICES' COSTS.

Editor of the Albany Law Journal:

The specific fees of justices of the peace for issuing summonses, granting adjournments, entering judgments, etc., are reasonable and should not be changed; but the law of costs, as applicable to these officers, need amendment in two respects:

First. The limitation of costs should be removed.

As Mr. Throop rightly says in his Justices Manual (P. 96): "The justice of the limitations of the amount of the costs is questionable. As costs in a justice's court consists of actual and necessary expenses only, there seems to be no sound reason why the successful party should not always recover the full amount thereof."

Second. A reasonable per diem trial compensation should be established. The fee of 75 cents for the trial of an issue of fact is grossly inadequate; nor does the fee for swearing witnesses compensate for this inadequacy. The latter fee in one day may amount to but 20 cents; it often does not exceed 50. For trying an issue of fact where the defendant appears, the justice should receive $2 a day-the same compensation as that which town clerks, assessors, commissioners of highways, and overseers of the poor receive for their services. In the trial of a case, justices work as hard as these officers, and frequently more hours in a day; and there is no good reason why they should not be as well paid. The specific fees are generally for services rendered on days other than that on which the trial takes place and therefore do not pay for the trial services. Nor would this proposed change greatly increase the cost of litigation in justices' courts. Most contested cases are finished in one day. To the cost of these it would add but $1.25; and in those cases that should continue more than one day litigants would not object to allowing the justice $2 for each day's extra service. When sitting as a court of special sessions the justice receives $1 for each day necessarily spent in the performance of his duty, and in civil cases, when trying an issue of fact where the defendant appears, he should likewise be allowed a reasonable per diem compensation.

I hope that our lawyers who are honored with seats in the Legislature will bring about the needed changes herein indicated. JUSTICE.

SHERBURNE, N. Y., Nov. 26, 1880.

NEW YORK COURT OF APPEALS DECISIONS.

THE

HE following decisions were handed down Tuesday, Dec. 7, 1880:

Judgment affirmed with costs-Woodruffs v. Imperial Fire Insurance Company of London; Lockwood v. Quackenbush; Long v. Bussell; Hand v. Kennedy; Burt v. Smith.- -Judgment reversed and new trial granted, costs to abide event- - Palmer v. Brady.Order affirmed with costs - Bedford v. Fields.Orders of General Term and Special Term reversed and motion granted with costs of appeal to General Term and this court-Veeder v. Baker.-Motion to set aside judgment denied with $10 costs- Veeder v. Baker.

The following order was made in the Court of Appeals December 8, 1880:

It is Ordered, That this court adjourn on Thursday, Dec. 23, instant, at 1:30 P. M; that it convene on Monday, the 17th day of January, 1881, at 10 o'clock, A. M., at the court room in the oid Capitol, at Albany; that a new calendar be made for that term, upon which the clerk will place only causes in which notices of argument, with proof of service for that term, are filed with him on or before the 3d day of January, 1881; that on and after Monday, the 20th day of December, instant, for the rest of the term now running, no day calendar will be made up, but causes will be called, beginning on that day with the first one in order of general calendar number, not before that disposed of, and the last paragraph of Rule XXI will be applied and enforced.

The paragraph referred to reads as follows: "When any cause shall be regularly called for argument, and no other disposition shall be made thereof, the appeal shall be dismissed without costs, and an order shall be entered accordingly,” etc.

NOTES.

THE current number of the Law Magazine and Review is exceedingly interesting. It has leading articles on Jurisprudence and the Amendment of the Law, by Lord Advocate McLaren; Private Bill Legislation; Professor Holland's "Jurisprudence" and Codification -a very acute review by Arthur Tilley; Foreign judgments - assumed jurisdiction over nonresident aliens, by F. T. Piggott. Our countrymen fare very well in this number; there is a very compli mentary review of Mr. Thompson's Liability of Stockholders in Corporations, and the editor, in speaking of the prima facie right of a fugitive to undisturbed and protected asylum, says, "the true doctrine, we hold, is that laid down by Dr. Spear in his able and lucid work on Extradition." The Criminal Law Magazine and the Southern Law Journal and Reporter are commended, and the editor also has a good word for ourselves.

The New York Tribune's London correspondent, speaking of the late Chief Justice Cockburn, says: "Nobody disputes the brilliancy and variety of Cockburn's talents, but the bar never recognized him as a great lawyer, and a powerful sect of society always denied him admission. Right Hon. Sir George Jessel, Master of the Rolls, perhaps the ablest lawyer of this generation, in pronouncing the formal panegyric in court, conspicuously omitted to praise his judicial qualifications. Several judges during the week complained severely of the indiscriminate laudation of the press, criticising Cockburn's absence of sound learning, his excessive love of display and eagerness to preside at sensational cases. Society remembers against Cockburn some early scandals and the life-long irregu larity of his domestic relations; nevertheless, it is true that he was exceedingly welcome in many influential circles, and will be long remembered for his shining conversational gifts."- -The English trial calendars must be in a bad way. The Daily Telegraph says they "abnormally conjested." The Telegraph must have a medical student reporting for it.

are

Supreme Court rules will be held in this city on the A convention of the judges for the revision of the 15th inst. It is important to have a thorough revision of the rules, and the judges would be glad to receive suggestions for amendments, which may be sent to Hon. Wm. L. Learned, of this city, any time before the 15th inst. In this way defects in the present rules might be pointed out which otherwise might escape attention, and thus the judges may be materially aided in their labor.

The Albany

Albany Law
Law Journal.

ALBANY, DECEMBER 18, 1880.

CURRENT TOPICS.

UR highly-esteemed contemporary, the Kentucky

says:

tem, which has at least the merit of originality. It "We would suggest that twelve jurors be appointed by the governor for each Circuit, and paid a reasonable salary for a fixed and definite term. This jury would travel about the Circuit in the same manner as the Circuit judge; they would generally be totally disinterested, and holding office by appointment would never decide for political purposes. By experience such a jury could learn to sift the true from the false testimony in almost every instance; by practice they would become expert in weighing testimony and judging of the credibility of witnesses. Their verdicts would be sooner rendered, and more often in the right, for their judgments would be the result of the deliberations of twelve men, whose every day business and study was such as to make their judgment peculiarly quick and accurate in such matters.” This seems to us the most impolitic change ever suggested. It seems to demand unanimity, and yet relies upon expertnes. This being so, one man would do just as well as twelve, and better, because he would never disagree; therefore, the judge would be the better arbiter of fact than the standing jury. Deliver us from all professional jurymen, and all professional arbiters of fact! Give us the system of verdicts in civil cases pronounced by nine of twelve jurors, and a selection of jurors like that obtained by a struck jury, and we will ask nothing better. We simply need greater intelligence in jurors, and a less arbitrary demand for unanimity.

It is to be hoped that the mental likeness of the late Lord Chief Justice Cockburn drawn by the London Truth is not a faithful portraiture. According to this representation he had not a profound knowledge of the law; but "he possessed a universality of genius;" "" he never hesitated to bring home to a jury his opinion;" "he let no one forget he was chief justice of England;" "he talked often of the cases he was trying or likely to try;" he defended duelling. In short, he was a man of the world, "equally at home on the deck of a yacht, at the dinner table of artists, in the drawing-room of fashionable beauties." An opinionated, garrulous, fighting, sailing, flirting, dilettanti chief justice is hardly to our taste. A "universal genius" on the bench is generally extremely objectionable. His physical portraiture by the same journal is more engaging: "At about half-past four or five o'clock on most afternoons when the courts were sitting in Westminster, a little old man, shabbily dressed, and - except for the bright piercing glance with Vor.. 22. No. 25.

which he now and then eyed a passer-by-singularly insignificant in appearance, might have been met wending his way along Waterloo-place and Piccadilly. Those who, an hour before, had seen the lord chief justice of England in his court, arrayed in wig and ermine, and listened to him, as, in a soft musical voice, he rendered some knotty point of law as clear as crystal, would hardly have recognized him as the same man." We can scarcely accept Truth's estimate that in him "the bench has lost its brightest ornament," and it is evident that the bar and the bench do not think so.

The late lord chief justice was unquestionably a man of great versatility of talents, acuteness, eloquence, and social charms. But these very accomplishments unfitted him for his high office, and he had not the profound knowledge of law which his post demanded. We need seek no further than our last English legal exchanges for proof that he was that very dangerous character, an advocate on the bench. The Law Journal says: "His charges to juries were masterpieces of popular oratory; and there was little chance for the most skillful counsel if the lord chief justice became convinced of the duty to sum up against him." And the Law Times says: "It is equally certain that, whilst he carried on to the bench this high code of honor, the very loftiest sentiments which could animate a judge, the deepest regard for his office, and the keenest sense of its responsibilities, he never thoroughly shook off the passion of the advocate. If there is one fault which can be laid to his charge as a judge, it is that with too rapid a judgment he formed his opinion, basing it frequently upon the evidence and bearing of particular witnesses. The opinion formed, it was put forward in the summing up with the art of the advocate, repressed more or less, but still perceptible, and occasioning sometimes the impression that the scales of justice had not been held with that absolute impartiality which is essential to the strict administration of the law. No one who has attempted the perusal of the summing up in the Tichborne case an effort which the lord chief justice subsequently published separately, and which in itself forms a volume - can fail to perceive with what dexterous skill the case for the defense was broken down. And again, no one who followed the course of that trial, with its frequent conflicts between the bench and the bar, could honestly say that the outrageous conduct of the prisoner's counsel was altogether unprovoked. If any doubt had ever existed in the minds of the jury, the demeanor and the summing up of the chief justice told them very plainly that they must convict." This same. passion for advocacy led him into unseemly pamphlet or newspaper controversies with Mr. Taylor on the law of the res gestæ, arising upon his lordship's ruling in the Bedingfield case, and with Lord Penzance, on the law of the jurisdiction of the courts in respect to ecclesiastical questions, in which the ultimate court overthrew the judgment which his lordship had delivered and defended.

It is apparent that this extraordinary man must be ranked with Erskine and Brougham rather than with Holt and Mansfield. And yet he sinks below the level of the first-named great men, because his life was never perfumed and dignified by devotion to reform in his chosen profession. His name is not imperishably connected with the championship of a broader liberty and the advocacy of a humaner justice. He even was strenuously opposed to the reforms in procedure which have recently taken place in England. The Solicitors' Journal remarks: "We may be permitted to regret that the failings incident to such a temperament and genius as his, to the long possession of a great and dignified office, and to advancing age, did not suffer him to unite his name with the promotion of a reform the principles of which he had long advocated."

In short, while we recognize in this brilliant man many of the attributes of genius, and do not regard him as altogether out of place on the bench, yet it must be confessed that he was not of the material out of which chief justices ought to be made. The Law Times justly observes: "A vast deal of firstrate work is done in our courts of first instance without much recourse to profound legal knowledge. The complicated interests of modern society constantly call for the exercise of such talents as those of the late lord chief justice, and a judge who possesses such talents, whilst he cannot justly be called great in the recognized acceptation of that term, attains to a position upon the bench unique and brilliant." And we unhesitatingly subscribe to the same journal's opinion that although the late lord chief justice emulated the great men who had occupied his seat, he never attained to the standard of Holt and Mansfield.

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were only 418 during the four years above referred to above £500; whilst the number involving £500 and under was 4,366; and, of this last number, 3,764 were cases in which no more than £200 was recovered. These statistics will assist in forming a conclusion as to the comparative amount of law business in England and New York.

Mr. Banks, the late publisher of our Court of Appeals Reports, has been executing a swan song upon the expiration of his contract. His contract expired at noon of the 14th inst., and anticipating a loud call for volumes at the contract price of 48 cents, he cleverly shut up his store for a day and a half beforehand, and thus laughed at the crowds of applicants. But as his contract obliged him to keep the reports always on sale at a book-store in this city, under a penalty of $100 for every failure, recoverable by the persons aggrieved, and as about fifty persons vainly called for the books, it is apparent that the laugh will soon be on the other side of his mouth. This conduct is of a piece with the defiant, disobliging, and lawless manner in which Mr. Banks has always carried himself in respect to this contract, and shows the wisdom of the State officers in awarding the new contract to other persons. would hardly seem that Mr. Banks can have his general business interests much at heart, or can have any desire to retain the respect of his legal customers and the public.

IN

NOTES OF CASES.

It

N Foose v. Whitmore, ante, 475, our Court of Appeals construed the following provision in a will: "I do give and bequeath all my property, both real and personal, to my beloved wife, Mary, only requesting her at the close of her life to make such disposition of the same among my children and grandchildren as shall seem to her good." They held that the wife took the testator's estate in fee and that the qualifying sentence would not be construed to create a trust. A similar question was passed upon in Williams v. Worthington, 49 Md. 572. The testator provided as follows: "It is my will and desire, and I hereby devise and bequeath all my property, real, personal, and mixed, to my dear wife, E. A., and her heirs and assigns forever, and it is my request and desire that my said wife, E. A., should by last will and testament devise and bequeath all of said property at her death, remaining in her possession, to my friend, B. W., and to E. W., their heirs and assigns forever, share and share alike." Held, that this did not create any trust, but that E. A.'s estate was absolute. This was put on the ground that the subject of the supposed trust was uncertain, as it was only of property "remaining" at the wife's death. The court said: "If the precatory words had related to the whole of the property devised to her, there are many decided cases which hold that the words indicating the ultimate disposition which the testator desired her to make would charge the property with a trust in

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