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On the 20th day of April, 1818, the legislature passed year, and the police justices each receive $8,000 a year. an act authorizing the judges of the Supreme Court in The judges of the Supreme Court in New York receive the city of New York to receive fees for chamber $17,500 a year each. business in said court, and for other services apper The salaries of our judicial officers seem to be distaining to their office, in the same mamer as any other proportionate to the salaries of the English judges, officer might do for the like services. The Constitu but when we take into consideration the greater numtion of 1821 forbade the judges to receive any fees or ber of judges that we have to do the same amount perquisites, or to hold any other office. Edward Pat of work done by the English judges, the disproportion erson, Esq., in an interesting “Sketch of the Law is no longer so great. There are in England, includInstitute of the City of New York," prefixed to the ing the Lords of Appeal in ordinary, the ordinary Catalogue of the New York Law Institute Library, members of the Court of Appeal and the judges of the tells the following story of Chief Justice Jones and High Court of Justice, the Chief Judge in Bankthis fee system: “There was a standing rule in the ruptcy, and the Judge of the Court of Arches, thirtySuperior Court,” says Mr. Paterson, “that notes of two judges. In addition, there are fifty-eight judges issue must be filed by a certain day before the next of county courts. These, with the aid of the Comterm, and if an attorney neglected to do this within missioners of Assize and nisi prius, do all of the law the required time, he could only get his cause on the business, except criminal, in England. In this State calendar by a special chamber order, for granting we have thirty-three Supreme Court judges, six judges which the judge was entitled to one dollar. Mr. L of the Superior Court of the city of New York, six had forgotten to file twelve notes of issue within the judges of the Common Pleas, six judges of the Marine time required, and embracing all the twelve causes in Court, seven judges of the Court of Appeals, three one order he applied to Chief Justice Jones to grant judges of the Superior Court of the city of Buffalo, it, which was promptly done. Mr. L— tendered a twenty-five surrogates, nine special surrogates, fiftydollar as the proper fee, which the Judge contemptu- | nine county judges, thirteen special county judges and ously spurned. Twelve dollars, if you please, sir,' three United States District judges. There are in the said the Judge. It is but one order,' said the attor State and in England certain justices of the peace of ney. There are twelve causes, sir, and that makes a limited local jurisdiction, and other judges that have twelve dollars,' said the Judge; and so on for a long a criminal jurisdiction, but, as the number of these in time, until finally a compromise was agreed on and a each country is about equal, I have not taken them settlement had at fifty cents on a dollar."

into consideration. In England, then, there are ninety Under the Constitution of 1816 the salary was $2,500; | judges, while in this State there are one hundred and in 1857 it was increased to $3,500. In 1869 an act was seventy-five judicial officers. One would suppose that passed giving the judges of the Court of Appeals $6,000 | in a commercial country like England, containing, as per annum, and the Supreme Court justices each $5,000 it does, about three times as many inhabitants as the per annum, and each received five dollars a day for State of New York, there would necessarily be more his expenses when actually engaged in holding court.

lawsuits than in this State. I have made a rough calIn 1870 the salary of the chief justice of the Court of

culation of the number of counsel, solicitors, etc., in Appeals was raised to $7,500; that of the other judges the “ Law List” for 1877, and I find there are in Eugto $7,000. In 1871 this was modified so as to give each

land and Wales about 11,000. There are about 7,000 judge in addition $2,000 annually in lieu of the amount lawyers doing business in this State. This would inallowed for expenses, and the salary of the justices of dicate that there is fifty per cent more business to do the Supreme Court was raised to $6,000 per annum. in England than in this State. In 1872 this was amended by giving each judge $1,200 Are the people of New York more litigious than the a year in lieu of the amount allowed for expenses. people of England, or do we require more judges to By the Laws of 1872, chap. 8:28, the judges of the Su do the same amount of work? Or is the work of our perior Court of the city of Buffalo receive $6,000 a judges increased by the great number of chamber year. By another statute the county judge of Kings motions made here? county receives $10,000 a year; those of Albany and Many of the judges in this city are very hard workWestchester each $4.500 a year; those of Erie and ers, and earn all the money they receive. But too Rensselaer each $5.000 a year. The county judge of much of their time is taken up in hearing motions and Hamilton county receives but $800 a year; the judges settling questions that have nothing to do with the of the other counties receive salaries varying from real merits of the cases. I am not far out of the way $1,500 to $4,000. The Surrogate of New York county when I say that one-quarter of the judicial force of receives $12,000 a year, and the Surrogate of Kings the superior courts of this city is employed in hearing county $10,000 a year; the Surrogates of Albany, and determining such motions. In the Supreme Rensselaer, Monroe and Westchester each $4,000; those Court, in this district, a “motion calendar" is made of Oneida and Onondaga each $3,500. The Surrogate up for the first and third Mondays in each month. of Erie county receives $4,500 a year, while the Surro. These calendars throughout the year will average, at gates of the other counties receive salaries varying from least, 275 motions. $3,000 to $1,500. Each of the judges of the Marine But probably the hardest-worked judicial officer in Court of the city of New York receives a salary of the State is the Surrogate of the city and county of $10,000 a year, and the Recorder, City Judge and the New York. This city, in population, is about oneJudge of the General Sessions of the city of New fifth of the State. In the amount of business done York each receive $12,000 a year. The judges of the here the proportion is smaller, yet, while one man Superior Court of the city of New York and of the | does at least one-fifth of the work for a salary of Court of Common Pleas for the county of New York $12,000 a year, it requires sixty-nine men to do the each receive a salary of $15,000 a year. The judges of other four-fifths, for which they receive in the aggrethe District Court in New York receive each $6,000 al gate about $170,000.


CONSTITUTIONAL LAW - RAILWAYS IN and avenues designated for that purpose. Authority STREETS.

was also conferred to condemn lands under the power

of eminent domain. The city authorities were proNEW YORK COURT OF APPEALS - SEPTEMBER 18, 1877. hibited from giving permission to any other person

or corporation to do any of the acts which were auMATTER OF GILBERT ELEVATED RAILROAD COMPANY. thorized by the act to be done by this corporation, and

were expressly enjoined to aid the corporation in carThe constitutional provisions which went into effect Jan

uary 1, 1875, forbidding the legislature to pass a private rying out the purposes of the laws. Thus it will be or local bill granting to a corporation, etc., the right to

seen that at the time of the passage of the Rapid Tranlay a railroad track, or granting any exclusive privilege, etc., or to authorize the construction, etc., of a street sit Act in 1875, the corporation was the grantee of the railroad without the consent of property owners, held

right to lay down tracks upon the elevated plan denot to be violated by section 36 of Laws 1875, chap. 606, authorizing the construction of an elevated street rail scribed in the charter, and had all the incidental powway in New York city.

'ers necessary for that purpose. The charter had not Where at the time the constitutional provisions went into

effect, a corporation had the right under its charter to been forfeited, nor had there been a failure to comply lay a railroad track in the streets of a city, such right

with the conditions imposed in respect to the time of was not affected by the provisions mencioned, nor were legislative enactments passed in 1875, and accepted by building the road. the corporation, changing the method of constructing

The Rapid Transit Act authorized a comprehensive such track, obnoxious to such provisions.

and independerit system of rapid transit by elevated APPEALS from orders appointing commissioners to

railroads through the city. It authorized the appointA appraise damages. Sufficient facts appear in the

ment of commissioners by the mayor to determine the opinion.

necessity for such railways, to locate routes, fix upon CHURCH, C. J. These appeals are from orders ap the plan of construction, organize and put in operapointing commissioners to appraise damages in pro tion a corporation with powers defined by the act, and ceedings to condemn lands for the purpose of the

then, by the first clause of the 36th section, which is in respondent's road. The proposed route lies through

controversy here, it provided that “whenever the South Fifth avenue in the city of New York. The

route or routes determined upon by said commissionfee of the street opposite their premises is in the ap ers coincide with the route or routes covered by the pellants, and not in the city. Several points are pre

charter of an existing corporation formed for the pursented, and have been exhaustively argued with great

pose provided by this act, provided that said corporaability and ingevuity, and some of them are not free tion has not forfeited its charter or failed to comply from difficulty. After as full an examination as I with the provisions thereof, requiring the construohave been able to make, I have arrived at a conclusion tion of a road or roads within the time prescribed by upon the respective points made, which I shall proceed its charter, such corporation shall have the like power to state, with the reasons therefor, briefly, without to construct and operate such railway or railways attempting to elaborate the arguments in their sup upon fulfillment of the requirements and conditions port. Among the most material of these points is the imposed by said commissioners as a corporation speproposition that the thirty-sixth section of the Rapid cially formed under this act." The commissioners apTransit Act, 80-called, chapter 606 of the Laws of 1875, pointed for that purpose adopted the routes of the the first clause of which it is alleged was intended for Gilbert Elevated Company, but required since changes the benefit of the respondent's corporation, is a viola in the form of the structure in a portion of the streets tion of some of the provisions of the last series of from an arch covering the streets, supported by posts amendments to the State Constitution, which took located at the curbs, as provided in the charter, to a effect on the 1st day of January, 1875, before the pas structure supported by upright posts in the center of sage of the act. These provisions are as follows: the streets, and required a reduction of fare and the

The legislature shall not pass a private or local bill running of extra trains at half fare for the benefit of in any of the following cases : Granting to any corpora the laboring population, all of which has been astion, association or individual the right to lay down sented to by the company. A point was also made railroad tracks; granting to any corporation, associa that the commissioners made more radical changes of tion or individual any exclusive privilege, immunity the structure from a tubular railway, to be operated or franchise whatever. The legislature is required to in whole or in part by pneumatic power, to an open pass general laws in these cases, and prohibited from steam railway, but in one of these cases (the case of the passing any law authorizing the construction or oper Sixth Avenue Railroad Company against the Gilbert ation of a street railroad without the consent of one Company, the evidence and findings in which are inhalf, in value, of the property owners or the certifi corporated into the papers,) it is found that the charter cate of the commissioners appointed by the Supreme contemplated an open railway to be operated by steam Court.

power, and such is, I think, the proper inference from It is important to understand the status of the the act itself, and the facts proved, so that this point, Gilbert company at the time of the passage of the whether important or not, may be regarded as out of Rapid Transit Act, as it has bearing upon the proper | the case. construction to be given to the act in its application | It is pertinent, also, to refer to the rule of constructo this company. Prior to the passage of this act, and tion to be applied. Every presumption is in favor before the amendments of 1875 took effect, under the of the constitutionality of acts of the legislature. successive acts of 1872, 1873 and 1874, the Gilbert Com An adverse doubtful construction is not sufficient to pany became incorporated for the purpose of the con- condemn an act; it is only in cases of a clear and substruction and the operation of an elevated steam rail stantial departure from the provisions of the fundaroad. Two sets of commissioners had, in pursuance of mental law that courts will declare acts of the legissaid acts, designated the routes over which the road lature invalid. 55 N. Y. 54; 50 id. 553; 14 Mass. 340; was to be constructed, and the corporation was au- 17 N. Y. 235; 23 Wend. 166. There is a distinction in thorized, in the fullest mauver, to oocupy the streets | this respect between the State and Federal constitutions. The former grants to the senate and assembly commissioners must be obtained has no application to all legislative power not prohibited by the latter, or this corporation, nor does the Rapid Transit Act reexcepted by the instrument itself. The latter grants to quire such consent or certificate. Congress specific powers only, hence the exercise of a Objection was made that the act of the commislegislative power by the State legislature will be pre sioners in designating the routes is void, because the sumed constitutional under the general grant of route designated crossed Broadway below Ffty-ninth power, and will be sustained unless brought clearly street, which is forbidden by the Rapid Transit Act, within some of the exceptions; while a similar exer and on this point the court says: “I do not think that cise of power by Congress can only be justified by an such exclusion would invalidate all the routes designaaffirmative grant embracing the specific power exer ted. The commissioners are authorized to designate cised. Assuming that “the corporation having coin the route or routes for such railways, and it is not neccident route or routes," specified in the 36th section essary that all the routes should coincide. The authorof the Rapid Transit Act, was descriptive of and was ity is co-extensive with the coincidence of the route. intended to apply only to the Gilbert Company, the | We think that this objection is not fatal to the rights first question is, in view of the facts and rule of con- of the respondents to an order to appraise appellants' struction referred to, whether the legislature did by damages to property in South Fifth avenue. The obthat act grant to the Gilbert Company the right to jection that the Rapid Transit Act improperly delelay down railroad tracks within the meaning of this gates legislative power to the commissioners is not clause. The right existed prior to the passage of the tenable. The legislature bad the power to determine act, and that right the legislature intended to protect. all the questions delegated to the local authorities, but The act recognized in terms that the corporation was there was no rule which forbids the legislature referformed for the purpose provided by the act, which ring such questions to a subordinate tribunal. purpose was to build and operate an elevated steam The question of damages is not involved in these railway in and through the streets of the city. The cases. To determine what particular occupation of legislature granted that right to the new corporation the streets is to be deemed a legitimate public use inauthorized to be created, but the company already volves important and delicate questions. Whether the possessing that right, whose route or routes were sat structure contemplated to be built and operated will isfactory to the commissioners, was intended to be be an invasion of the property of the building owners recognized and its powers confirmed. The changes in any of the streets entitling them to some reinedy required were restricted in character. By the charter for damages, or whether it will be regarded as a legitithe whole street was to be covered by the structure. mate use of the streets for the benefit of the public, By the conditions imposed only a portion of some the inconveniences and annoyance of which private streets could be occupied. The reduction of fares abutting ownership is subject to, cannot with propriety and the requirement for extra trains at half fare were

be adjudicated upon these appeals. The criticism clearly restrictions of existing rights. I cannot ac upon the terms of the order is not tenable. The order cede to the proposition that any change in the struc is to be construed in connection with the constitution ture and in the manuer of occupying the streets, how and the statutes, and the appellants will be at liberty ever restrictive upon the company or beneficial to the to claim any damages to which they are constitupublic in the use of the streets, constitute a fresh tionally and lawfully entitled. The order must be grant of the right to lay down railroad tracks. It is affirmed. a misnomer to call such restrictions grants of any right whatever. In my judgment an act restricting MORTGAGE OF CROP TO BE PLANTED. and regulating an existing right to lay down railroad tracks is not a grant of that right within the meaning SUPREME COURT OF TENNESSEE, APRIL TERM, 1877. of this clause. It is not within the letter of the olause, nor within the evils at which the provision was


A mortgage by the owner of land upon a crop yet to be

planted is valid against an execution creditor. The next question is whether the Rapid Transit Act, " especially the thirty-sixth section,” violates the

ACTION to determine the right to cotton levied other provision quoted prohibiting the Legislature, by

A upon under an execution upon a judgment in a private or local bill, from “granting to any corpora

favor of defendant and claimed by plaintiff by virtue tion, association or individual any exclu-ive privilege,

of a mortgage. The opinion states the case. immunity or franchise whatever." It is not easy to

SNEED, J. The agreed case shows that the plaintiff understand precisely what was intended by this clause.

agreed to furnish one Houston McCain with supplies, It is difficult to construe this clause as meaning any

on condition that McCain, who was a farmer, should thing less than an absolute monopoly, but it is not

execute to the plaintiff a mortgage of his cotton crop, deemed necessary to define its precise significance. It

for the then current year (1875), as a security for the is sufficient to say that it has not been made clear that

supplies so furnished. A deed of trust to that effect the clause was violated by the Rapid Trausit Act. No

was accordingly executed in February, 1875, "upon a exclusive right or franchise was granted to the respond

crop of cotton to be planted and grown upon the laud ent corporation upon any construction of the clause.

of the said McCain in the year 1875, to secure said Every substantial right existed before the passage of

Wyatt for supplies furnished and to be furnished to the act. The legislature evidently felt embarrassed

said McCain, to enable him to make said crop.This by these provisions, and attempted to avoid all ques deed of trust was duly registered. When the crop tions in respect to them by passing a general act. The matured and became subject to levy, the defendant, act is general in form at least, and probably as much Watkins, having recovered a judgment against Moso as the objects sought to be accomplished would per Cain for the sum of $42.95 before the execution of the mit. The objection that the consent of a majority of deed, caused an execution to be levied on enough of the owners or the certificate of the Supreme Court | the cotton to discharge his debt; and this actiou was brought to determine who has the better right. The title within the next six months. Benj. on Sales, & question presented is, whether a crop of cotton yet to | 78. The precise point now in judgment, however, has be planted is the subject of a valid mortgage; and the been adjudged against the proposition, that a thing adjudged cases seem to be very much in conflict on not in esse is the subject of a valid sale or mortgage. the subject. A humane policy would seem to favor Thus, it was held in Hutchinson v. Ford, 9 Bush, 318, the affirmative of the proposition; as, if such is the where this exact question was involved, that " a mortlaw, the indigent farmer may obtain credit upon his gage of a crop to be raised on a farm during a certain prospects, and be enabled to subsist his family pend term, but which is not yet sown, passes no title, and ing the cultivation of his crop. The case of Grantham the mortgagee has no claim against a purchaser of the v. Hawley, reported by Sir Henry Hobart in the reign | crop for it, or its value." Everman v. Robb, 3 Cent. L. of James I, is one of the earliest upon the subject, and | J. 735; Ofin v. Sill, 8 Wend. 111; Lunn v. Thornton, 1 has been frequently cited in support of the doctrine Man., Gran. & Scott, 379; Barnard v. Eaton, 2 Cush. that a thing not in esse may be the subject of a valid 295; Bank of Lansingburgh v. Cary, 1 Barb. 542; Comchattel mortgage. That case, as cited, was as follows: | stock v. Scales, 7 Wis. 159; Redd & Co. v. Burris & WilA man seized of land let the same by indenture for liams, Mss., Ga. 1877. twenty-one years, and covenanted that it should be Many other authorities might be cited to the same eflawful for the lessee, his executors and assigns, to carry fect, and quite as many that look in the other direction. away to his own use such corn as should be growing Andrew v. Newcomb, 32 N. Y. 417; 3 Law Reg. 19-33; upon the ground at the end of the term; and after 17 Conn. 144; Holroyıl v. Marshall, 10 H. L. Cas. 189; ward the lessor released his reversion; and one ques 18 Pick. 168; 14 id. 497; 10 Metc. 481; 12 Cush. 376; tion was, whether the lessee was entitled to corn so Brett v. Carter, Cent. L. J., May 5, 1876; 32 N. H. 484; growing; and it was argued, on the part of the assignee 18 Ver. 465; 1 McCaslin's Ch. Rep. 408; 24 Wis. 551; of the reversion, that it was merely contingent whether | 26 III. 121; 48 Ala. 109; Butt v. Ellett, 19 Wall. 544; 42 there should be corn growing upon the ground at the N. Y. 620. end of the term or not, and that the lessor never had In one of these cases it is said: “In the case of property in the corn; and, therefore, could not give crops to be sown, it vests potentially from the time of nor grant it, for the right to the corn standing at the the executory bargain, and actually as soon as the subend of the term, being certain, accrued with the land ject arises." Andreus v. Newcomb, 32 N. Y. 417. Mr. to the lessor. But judgment was given against the re Story says, that rights in remainder and reversion, version, because it was said that the property, and possibilities coupled with an interest, rents, franchises very right of the corn when it came into being, was and choses in action, are capable of being mortgaged. passed away, for this was both a covenant and a grant; Eq. Jurisp., § 1021. A court of equity, he says, will and, therefore, if it had been of natural fruits, as of grass support assiguments, not only of choses in action, or hay, which run merely with the land, the like grant and of contingent interests and expectancies, but also would have carried them in property after the term. of things which have no present, actual or potential Then, though corn were fructus industrialis, so that existence, but rest in mere possibility; not, indeed, as he that sowed it might seem to have a kind of prop a preseut positive transfer operative in presenti (for erty ipso facto in it, divided from the land, and, there that can only be of a thing in esse), but as a present confore, it would go to the executor, and not to the heir; tract, to take effect and attach as soon as the thing yet, in this case, all the color the reversioner had to it comes in esse. Id., § 1040. Among the examples he was by the land which he claimed from the lessor who cites, is that of the assigoment of the head-matter gave the corn; and though the lessor had not the corn and whale-oil to be caught in a whaling voyage now actually in him, nor certain, yet he had it potentially, in progress. The right will attach to the head-matter for the land was the mother and root of the fruits. and whale-oil when attained. Id. So strongly are Therefore, he that had that might grant all fruits that courts of equity inclined to uphold assignments when might arise upon it afterward, and the property would bona fide made, that even the assignments of freight, pass as soon as the fruits were extant." Hob. 132; 1 to be earned in the future, is good in equity, and will Pow. Cont. 157, 158, 2 Walp. ed.

be enforced against the party from whom it becomes When stripped of all quaintness of verbiage, the due. Id., $ 1055. In Story on Sales, it is said: “While plain doctrine of this old case is, that he who owns a person cannot make a present sale of all the wool the soil may sell or assign the crops to be grown upon there may grow on a sheep, which he may hereafter it. It is said in Benjamin on Sales, that in relation to buy, nor any other thing in which his interest is things not yet in existen ce, or not yet belonging to wholly prospective and doubtful, there may be made the vendor, the law considers them as divided into a valid sale of the wine a vineyard is expected to protwo classes, one of which may be sold, while the other duce, or the grain a field is expected to grow, the milk can only be the subject of an agreement to sell - of of a cow for the next year, or the future young of an executory contract. Things not yet existing which animals.” Story on Sales, $ 183; McCarty v. Blivens, may be sold, are those which are said to have a poten- 5 Reg. 196. Whatever is the subject of a valid sale is, tial existence, that is, things which are the natural of course, the subject of a valid mortgage. A mau product, or expected increase, of something already may sell or mortgage every thing that is his property; belonging to the vendor. A man may sell the crop of and such a sale, if bona fide, will be upheld in law and hay to be grown on his field, the wool to be clipped equity. Property is the right and interest a man has from his sheep at a future time, the milk his cow will in lands and chattels to the exclusion of others. 17 yield in the coming month, and the sale is valid. But Johus. 283; 11 East, 290; 4 Pet. 511. All property, he can only make a valid agreement to sell — not an real or personal, corporeal or incorporeal, movable or actual sale - where the subject of the contract is to | immovable, may be the subject of mortgage. i Hill, be something to be afterward acquired; as the wool of Mort. 6. Things are said to have a potential existence any sheep or the milk of any cows that he may buy when they are the natural product, or expected inwithin the year, or any goods to which he may obtain I crease, of something already belonging to the vendor. Low v. Pew, 11 Am. Rep. 357. The term "incorporeal | charity, as if there had been no trust to repair the property” includes all legal rights. The right in the tombs. Ch. Div., June 2, 1877. Re Williams' Trusts, proprietor of the soil to plant, cultivate and gather 36 L. T. Rep. (N. S.) 939. his crops, to the exclusion of all others, is an absolute Construction : death coupled with contingency: period legal right, and an incorporeal property; and incor of contingency.- By will, made before 1838, a testator poreal property is as well the subject of valid sale and devised unto his seven children "and their heirs formortgage as any other kind of property. The mort ever, the fee simple" of certain real estate; and if gagor, in this case, was the proprietor of the land on either of his children should die, leaving children, the which he proposed to raise the crop in controversy. share of him or her so dying to go to such children; The crop had a potential existence because it was to | but if any of his children should die, and leave no be the natural product and expected increase of the child, the share of him or her so dying to go to his land then owned and occupied by him. Why may he (the testator's) surviving children and their heirs fornot obtain the credit necessary to make the crop by ex ever. All the seven children survived the testator. ecuting a mortgage upon it? We see no sound reason Held, that the word “die" must be construed to mean why. Who is to be injured by it if the transaction is die in the life-time of the testator; and, therefore, that bona fide, and there be no superior lien for rent or | the seven children took as tenants in common in fee. otherwise ? Who is to be misled by it if the transac

Ch. Div., June 5, 1877. Apsey v. Apsey, 36 L. T. Rep. tion is at once published to the world by registration, (N. S.) 941. as was done here? If the merchant is willing to fur Construction: next of kin under statute of distribution: nish him with supplies, and enable him to make the time when class to be ascertained: then.''-Testator crop, and take the risk of the crop itself for security, bequeathed certain property among his daughters for who has a right to complain, and where is the mala fides

life and for their issue after them, with bequests, on of the transaction? Is there any doubt that a court

the death or failure of issue of any one daughter, to of equity would sustain the mortgage, and protect the

the surviving daughters for life and their issue after mortgagee, in such a transaction? Then, wherefore them, and from and after the decease of his last surmust he fail in a court of law, into which forum the viving daughter to and among the children of such parties have brought the case, and where our liberal daughter, “and if there shall be no such children, that statute requires that, in such a case, their rights shall the same shall be paid to such person or persons as will be adjusted upon equitable principles. In the case of then be entitled to receive the same as my next of kin Andrews v. Newcomb, above cited, it is said that, as under the statute for the distribution of intestates' long as the time of Ch. J. Hobart, it was held that estate.” The same clause also applied to the testator's one proposing to plant crops might convey them in residuary estate. Held, that the date of the death of advance, and that the fruits which should arise after the last surviving daughter, and not the date of the ward, would pass as soon as they were extant; citing testator's death, was the period at which the testator's Hob. 132; 3 Johns. 216, and Hare v. Celay, Cro. Eliz. statutory next of kin were to be ascertained. Ch. 143. Crops to be raised, say the court, are an excep Div., May 29, 1877. Mortimore v. Slater, 36 L. T. Rep. tion to the general rule, that title to property not in 917. existence cannot be affected so as to vest the title Devise of freeholds : conversion into personalty: rewhen it comes into being. In the case of crops to be conversion into realty: election by conduct. - A testator sowi), it vests potentially from the time of the execu devised all the residue of his real estate to trustees tory bargain and actually as soon as the subject arises. upon trust for sale; and declared that his trustees 32 N. Y. 421. The judgment, in this case, certainly should stand possessed of the money arising therefrom created no lien upon the crop, which the statute pro upon trust, during the widowhood of his wife A., to tected from levy until after maturity. The judgment pay her a certain annuity, and to pay the residue of debtor had failed with his title, and the judgment the income to his son G., until bankruptcy; and, after creditor could stand on no higher ground than his the death of his wife, upon trust, as to one moiety of debtor. We hold the assignment to be lawful and the trust premises for his son G. absolutely; and, as valid, and that the plaintiff below has the better right to the other moiety, in case his son G. should not have to the fund in controversy.

become bankrupt, for him absolutely, and, in case of Affirm the judgment. Judgment affirmed. his bankruptcy, upon certain trusts in favor of his

wife and children. A. never married again, G. never

became bankrupt. During his life he resided at his RECENT ENGLISH DECISIONS.

father's house in Sussex, and, by his will, devised the CASES RELATING TO WILLS.

same in strict settlement. Held, that G. had power to Charity: direction to accumulate : gift of surplus elect; and had, by his conduct in his life-time, elected income after void bequest. — Testator bequeathed a sum to take the house as reconverted into real estate. Semof £200 to trustees upon trust to invest and apply the ble where a person absolutely entitled, iu a contingent income thereof in keeping in repair certain tombs. event, to the proceeds of sale of real estate directed He also directed that if, in any year, the whole of the by will to be sold, gives notice to the trustees (before income should not be required for the purpose for the event happens) that he elects to take the property which it was given, the surplus income should be in in specie; such notice is just as binding on the trusvested; and that, when the value of such accumula tees, when the event happens, as if it was given aftertions sbould amount to £25, his trustees should pay ward. Ch. Div., June 12, 1877. Meek v. Devenish, over to the incumbent of A., for division amongst the 36 L. T. Rep. (N. S.) 911. poor of his parish, such sum of money as would reduce Equitable estutes: construction: devise to trustees in fee: the value of such accumulations to the sum of £20. | equitable interest co-extensive with legal interest: gift Held, that the gift to the poor did not fail by reason over. - A testator, by will made prior to 1838, devised of its being a gift of surplus income after a void be- real estate to trustees in fee in trust for the sole benequest; and that there was a good gift of the whole to fit of his two daughters A. and B.; but “in case either

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