or release of the principal of said debt or of any part thereof, or of the mortgage security therefor, shall be valid as against any subsequent debt, unless the fact of the payment or release is indorsed on said bond, save that full payment shall be sufficiently evidenced by the delivery of a satisfsction piece in proper form to discharge the record of said mortgage. This covenant shall be binding on and inure to the benefit of the parties hereto and their heirs, successors, representatives and assigns; and any assignee of the whole or any part of said debt, on taking such assignment, may rely upon the indorsements on said bond and upon the absence thereof.' This clause, while protecting a subsequent assignee, under the circumstances. stated, against the previous release of the mortgage debt or of the mortgage security, seems to recognize the right of the company to release the debt or the security after making an assignment thereof, and thus limit the protection of the assignee to the unsecured obligation or liability of the company and its guar

antor."

Substantially similar schemes have been adopted by real estate companies in other cities to enable investors to speedily obtain slices of a mortgage where they have not sufficient funds to take the whole loaf. But it would seem that, in any such form of investment, there must be so much discretionary power of control retained in the holder of the mortgage, and so little right of management and freedom of action in the different assignees of interests therein, that, under the surrogate's decision, this general field is not open to trustees.

We are not prepared to advocate statutory extension of the classes of trust investments sanctioned in New York. (See Smith v. Smith, 4 Johns. Ch. 281; King v. Talbot, 40 N. Y. 76; Mills v. Hoffman, 26 Hun, 594; Ormiston v. Olcott. 84 N. Y. 339; Judd v. Warner, 2 Den. 104; Laws of 1889, Ch. 65.) Nevertheless, the restriction to first mortgage loans and public securities makes it exceedingly difficult for trustees in this city to obtain advantageous investments for comparatively small funds.

i

give a comparatively small portion for each beneficiary. To tie up such shares in trust simply on general principles is a great mistake, which, unless there be some positive reason, should be advised against. An insignificant fixed annual income will not be as advantageous. to a beneficiary as the absolute ownership of the principal, wherewith, for instance, to acquire the equity in a home of his own. Of course, there is the chance that the beneficiary may be improvident and lose the money; but, if the objects of a testator's bounty be fairly prudent persons, it would seem better in the long run to take such risk, than to certainly debar them from substantial benefit from their portions.

Where, however, testator's are determined," either with or without special reasons, to create small trusts, the restriction of the field and the practical difficulty of investments should be brought to their minds, and it should be ascertained whether they wish to widen the field by special authority in the will.

In

The courts lean toward restricting a trustee to legal investments, and toward holding him responsible for loss if other investments are made, whenever the language of a will admits of doubt as to the scope of his power. King v. Talbot. supra, it was held that committing the investment to the "discretion" of the trustee gives no additional authority as to the class of securities; that the discretion is controlled by the rule and must be exercised within its limits. Words authorizing investment "in such manner, and upon such securities as to (the trustee) shall seem advisable," do not enlarge the usual power. Matter of Keteltas, 1 Connolly 468. The language, “in such suitable manner as may be for the best interests of my estate to be determined by my said executors," does not authorize an investment on personal security. (Matter of Cant, 5 Dem. 269; see, also, Adair v. Brimmer, 74 N. Y. 539; Matter of Petrie, 5 Dem. 352; Pray's Appeal, 34 Pa. St. R. 100.)

But when the language used is specific and unambiguous, it would seem safe to act upon its authority. In Matter of Wolfe (1 Connoly, 102), the will provided that the trustees might continue to hold the testator's estate in the form in which it was invested at his death, and they were "in view of the express language,"

exonerated from liability for losses incurred by reason of stock bought by testator selling for less than its inventoried value. In Clark v. Ry. Co., 58 How. Pr. 21, the court said: "When a deed of trust directs, in plain terms, in what particular securities funds coming into the hands of trustees shall be invested, and how, until so invested, they shall be held, the court cannot by its judgment, defeat the intentions of the creator of the trust and the beneficiaries thereunder by directing other investments." To the same effect is Burrill v. Shiel, 2 Barb. 457, where a testator directed an investment to be made in England, and the court declared it had no power to divert the investment from that country.

In order to render it safe for trustees to make investments other than those expressly sanctioned by law, authority should be given by mentioning other securities, or at least the general nature of permissible securities.

Speaking of uniformity in State laws a recent case decided by the Supreme Court of Alabama demonstrates the absolute necessity for some such scheme, and that it should be done at the

earliest possible moment. In the case of McCreery v. Davis, it appeared that a citizen of South Carolina had married in New York a citizen of that State and immediately thereafter the parties continued to reside in South Carolina, until the wife left the husband and went to live in Illinois. In that State the wife obtained a divorce entirely in accordance with the laws of Illinois, but without personal service or the appearance of the husband, and on a ground not recognized in either New York

or South Carolina as a cause for divorce. In South Carolina in the case under discussion, it was subsequently held that the Illinois judgment was void and that article 4, section 1, of the United States Constitution providing that full faith and credit shall be given in each State to the judicial proceedings of every other State, and the act of Congress providing that records and proceedings thereof, properly authenticated, shall have full faith and credit given them in every court of the United States, as they have in said State from whence they came, does not prevent an inquiry into the jurisdiction of the court which rendered the judgment. The position of Mrs. McCreery, owing to this de

cision, is somewhat peculiar. It is apparent that under the laws of Illinois she is single, and may again marry. Under the laws of South Carolina and under the laws of New York she is still Mrs. McCreery. This may at first seem to be a most ultra case showing the unfortunate result of lack of uniformity in State laws, but many similar decisions may easily be found which illustrate the necessity for some immediate and radical action.

DECREE OF SURROGATE'S COURT ADMITTING WILL TO PROBATE BINDING ONLY AS TO PERSONALTY.

ACTION FOR PARTITION OF REAL ESTATE MAINTAINABLE BY HEIR IN WHICH QUESTION OF VALIDITY OF WILL MAY BE LITIGATED DE NOVO.

Supreme Court - General Term, First Department. October, 1895. Present: Hons. Charles H. Vau Brunt, P.J.; David L. Follett and Alton B. Parker, JJ.

Michael Bowen, respondent, v. Michael Sweeney and Catharine Gallagher, appellants, impleaded with others.

Appeal from an order denying a motion to set aside the verdict, from the interlocutory judgment entered on said verdict and on a decision of the Special Term, and from the final judgment entered on the report of a referee to sell in an action of partition.

August 27, 1885, Mary T. Hatton died seized in fee simple of a piece of land situate at the northwest corner of First avenue and Thirteenth street, which is 43 feet and 3 inches wide on the avenue, and 80 feet long on the street. She left a last will, executed April 17, 1880, by which she devised and bequeathed all of her estate to Michael Sweeney and Catharine Gallagher, to be divided equally between them. The will was admitted to probate October 18, 1886, by the Surrogate's Court of the city and county of New York (3 N. Y. St. Rep. 213). August 20, 1887, the decree of the Surrogate's Court was reversed by the General Term of the Supreme Court (10 N. Y. St. Rep. 19), which ordered the following issues to be tried before a jury in the Court of Common Pleas :

First. Whether the decedent ever saw the paper propounded for probate as her last will and testament until it was presented to her for execution.

Second. Whether the paper propounded for probate, as the last will and testament of Mary Teresa Hatten, was read by her or anyone aloud in her hearing previous to the signing thereof.

Third. Whether the decedent at the time of sign

on that assumption, without considering its validity.

All of the litigants in this action were parties to the proceedings in the Surrogate's Court to probate the will, to the appeal to the General Term and to the trial before the Common Pleas. The first question presented is whether the decree of the Surrogate's Court, affirming the original probate, entered on the verdict rendered in the Court of Common Pleas, is a bar to this action. At common law the probate of a will in an ecclesiastical court was not conclusive against the heir, and a judgment in an action at law, at the suit of the heir, that the testator was incapable of making a will, was not conclusive against the executor as to the personalty, who, notwithstanding the judgment at law respecting the realty, might, if he could, establish the will as to the personalty in an ecclesiastical court. (Montgomery v. Clark, 2 Atk., 378; Hume v. Burton, 1 Ridg. P. C., 277; Bogardus v. Clarke, 1 Edw. Ch., 266; 4 Paige, 623.) Lord Hardwicke said, in Montgomery's case: "I have often thought it a very great absurdity that a will which consists both of real and personal estate, notwithstanding it has been set aside at law for the insanity of the testator, shall still be litigated upon paper depositions only in the ecclesiastical court, because they have a jurisdiction on account of the personal estate disposed of by it." By chapters 77, 20 and 21 Victoria (1857), the rule of the common law has been changed in England, and a decree of a probate court admitting a will to probate, which relates to realty and personalty, is binding on the heir in case he had notice. (Sec. 62, chap. 77, 97 Pick. Stat. at Large, 420-437.) The rule of the common law arose from its tenderness to heirs and from the idea that none should be deprived of land, except by a judgment of a court of law after trial of the issues of fact before a jury. Under the first Constitution of this State, wills relating to realty might be proved in the Court of Commom Pleas (1 R. L., 1801, 178), and after 1813 in the Supreme Court or in the Court of Common Pleas (1 R. L., 1813, 364), and surrogates had the power to admit to probate wills relating to personalty and to real estate so far as it was necessary to authorize the issuing of letters testamentary. (1 R. L., 1801, 317; id., 1813, 444.) Persons aggrieved by any decree of a surrogate were authorized to appeal to the Court of Probates (1 R. L., 1801, 325; id., 1813, 454).

a court of equity to be tried by a jury in a court of law to determine the validity of a will. (Rogers v. Rogers, 3 Wend. 505.) Vanderheyden v. Reid (1 Hopk. 408) was an appeal from a surrogate's decree admitting a will to probate, which related to real and personal property, and turned upon the question of the sanity of the testator. The question arose as to whether this issue could be sent by the Court of Chancery to a court of law to be determined by a jury. In discussing this question the learned chancellor said: Thus, a will of personal and real estate may be there adjudged both valid and void by different tribunals. This result of an artificial division of jurisdictions can never be proper where it may be avoided. That a will should be adjudged valid, because the testator who made it was of sound mind, and that the same will should be adjudged void, because the same testator was insane, is a result which should never take place under one system of laws. But still more singular would be the anomaly, if the same court were, in the case of a contested will of real and personal estate, bound to send the disputed question to a jury, in respect to the land, and also bound to decide the same disputed question, without a jury, in reference to another species of property.

"Such an incongruity is avoided by taking one course of investigation, whether the bill is of real or of personal estate, or of both comprised in one instrument. This court now having jurisdiction of wills of personal goods, and also of wills of land, it may most fitly apply the same method of investi gating facts to both cases.

This language seems to indicate that the chancellor was of the opinion that a decree entered upon the verdict would be conclusive upon the heirs. This judgment was, however, reversed (5 Cow., 719); but not upon the point discussed in the foregoing quotation.

In Brick's Estate (15 Abb. Pr., 12) and in 1 E. D. Smith's Rep. XVII, will be found a learned and instructive history of the Probate Courts of this State, prior to the Revised Statutes, by Charles P. Daly, the accomplished chief judge of the Court of Common Pleas.

Under the Revised Statutes wills of real and