In Lavin v. Bank, supra, which was a case where the original letters of administration were issued by the court of probate of Cranston, in this State, under the statute in question, and where afterwards ancillary letters of administration were taken out in New York, the court, after holding that the payment by the defendant bank to said administrator there was no defense to the suit, said: "It is also claimed that, if the New York letters are void, the payment to the administrator may be justified under the Rhode Is land letters, on the principle that, though a foreign administrator cannot sue here without obtaining ancillary letters, yet a payment to him is a good payment, and discharges the debt. Parsons v. Lyman, 20 N. Y. 103. But it is clear that the Rhode Island letters have no greater validity than the New York letters. The Rhode Island statute undertakes to do di. rectly what the New York statute aims to accomplish by the more indirect method of declaring a judicial decision conclusive against a person not a party to it. In Rhode Island the court does not go through the form of deciding that the person is dead, but, conceding that he is only absent, distributes his estate 'as if he were dead,' without the service of any notice or process upon him whatever. I do not see how any respectable argument can be made that this is not depriving him of his property without due process of law, or how it can be necessary, or reasonably proper, for the proper government of the persons and the property within the jurisdiction of the State." This decision is cited with approval by the Supreme Court of the United States in Scott v. McNeal, 154 U. S. 49, 14 Sup. Ct. Rep. 1108.

The general question as to whether any court has, or can have, jurisdiction to grant letters of administration on the estate of a living person has been much discussed, and, while the authorities are not entirely harmonious, yet the great weight thereof is clearly against the existence of any such jurisdiction. The ground upon which most of the decisions rest is that, in order to confer jurisdiction upon a court to grant letters of administration upon a person's estate, that person must be in fact dead; and that, if he is not dead, there is no estate to administer upon, and hence no jurisdiction. Mr. Freeman, in discussing this question in his work on Judgments, says: "The question occasionally arises whether the grant of letters testamentary or of administration on the estate of a person in fact living, but supposed to be dead, is an act beyond the jurisdiction of the court, and therefore so utterly void that no person is protected in dealing with the executor or administrator while his letters remain unrevoked. The weight of authority is very decidedly to the effect that the decease of the supposed decedent is a prerequisite to the jurisdic tion of the court, and that he is wholly unaffected by the proceedings for the settlement of his estate." In line with the doctrine here announced, it is said in Mella v. Simmons, 45 Wis. 334: "The proceedings of administration, settlement, and assignment of the estate of the respondent, represented to have been dead, when he was and still is alive, are absolutely null and void, for all purposes whatsoever. The county court of Dodge county, or any other court, has no jurisdiction in this particular case, or in such a class of cases. There is no class of cases which embraces the administration of the estates of living persons as if they were dead. The proceedings are void ab initio and throughout. If this case falls within any class of cases, it is a class in which no court has any right to deliberate or render any judgment, and in which every conceivable act is an absolute nullity. The only

jurisdiction the county court has in respect to the administration of estates is over the estates of dead persons. It would seem that the bare statement of such a proposition is enough, without citing authorities." In Thomas v. People, 107 Ill. 521, the Supreme Court of Illinois, in an able opinion by Mr. Justice Mulkey, takes the same view. The same doctrine has been either adjudged or recognized in Massachusetts in Jochumsen v. Bank, 3 Allen, 87; Waters v. Stickney, 12 Allen, 1, 13; Day v. Floyd, 130 Mass. 488; in Penn. sylvania, in a series of cases beginning in 1824 (see Devlin v. Com., 101 Pa. St. 273); in Texas, in Withers v. Patterson, 27 Tex. 499; in Kentucky, in French v. Frazier, 7 J. J. Marsh. 425; in Tennessee, in D'Arusment v. Jones, 4 Lea, 251; in New Hampshire, in Morgan v. Dodge, 44 N. H. 255; in North Carolina, in State v. White, 7 Ired. 116; in Alabama, in Duncan v. Stewart, 25 Ala. 408; in California, in Stevenson v. Superior Court, 62 Cal. 60; in Missouri, in Johnson v. Beazley, 65 Mo. 264; and in many other States. See, also, 1 Woerner, Adm'n, § 208 et seq., where the same view is taken and our statute commented on; and note to Bolton v. Schriever (N. Y. App.), 18 Lawy. Rep. Ann. 242, 31 N. E. Rep. 1001. To this array of authorities there are to be added the decisions of the Supreme Court of the United States in Griffith v. Frazier, 8 Cranch, 9, and the recent case of Scott v. McNeal, supra, in which last-named case Gray, J., in an exhaustive and learned opinion, after discussing the entire subject, and reviewing all the cases, comes to the conclusion that administration cannot legally be granted on the estate of a living person, and that to deprive one of his property in a proceeding of this sort is unconstitutional. The reasoning in that case is so cogent, and the result so authoritative, especially as to the constitutional question involved in the case at bar, that further citations would seem to be unnecessary.

Opposed to all this there is practically, so far as we are aware, but the single case of Roderigas v. Institution, 63 N. Y. 460, where the court, by a bare majority, held that, under the provisions of the statutes of that State conferring upon surrogates jurisdiction over the subject of granting letters of administration, the inquiry of the surrogate as to the death of the person upon whose estate administration is applied for is judicial in its nature, and that the surrogate has jurisdiction to determine it upon sufficient evidence; and also that letters issued by him upon due proofs are conclusive evidence of the authority of the administrator to act until the order granting them is reversed on appeal, or the letters are revoked or vacated, so far, at least, as to protect innocent persons acting upon the faith thereof. The decision in that case has been much criticized (see articles in 21 Alb. Law J. pp. 65, 84; D'Arusment v. Jones, supra; 15 Am. Law Reg. 212; 1 Woerner, Adm'n, § 210), and, so far as we are aware, has never been followed outside of said State except in the case of Scott v. McNeal, in Washington territory, which, as we have already seen, bas since been expressly overruled by the Supreme Court of the United States, although it was cited with approval in Plume v. Institution, 46 N. J. Law, 230. In that case, however, it was not even surmised that the alleged decedent was not in fact dead. We are not unmindful of the rule that has been laid down in this State and elsewhere that the court should ponder well before declaring an act of the general assembly to be unconstitutional, and that it should resolve every doubt in favor of the validity of the act. State v. District of Narragansett, 16 R. I. 440, 16 Atl. Rep. 901. But if, having observed this

rule, the court comes to the conclusion that the act is violative of some constitutional right, its plain and imperative duty is to declare it to be void. Taylor v. Place, 4 R. I. 364. The case was originally heard by the appellate division, which then consisted of three justices. Owing to the importance of the question, however, and in view of the fact before referred to that said statute has long been upon the statute book, it was thought proper to have the case resubmitted on briefs to the entire court, which has been done. And, after a full and careful consideration, we are all of the opinion that, in so far as said statute authorizes the estate of a living person to be administered upon, it is unconstitutional and void.

REVIVOR OF PAID REAL AND CHATTEL MORTGAGES.

That a paid mortgage, whether upon real estate or upon chattel property, which has not been cancelled of record, may by agreement between the parties, be re-delivered by the mortgagor, as security for another debt or liability, and thus be revived and become a valid and subsisting security for such other debt or liability, is a question upon which courts are not entirely in harmony. Indeed there seems to be an irreconcilable conflict between the decisions of the American courts, some holding that since a mortgage is but the incident of the debt, that when the debt is paid, the mortgage has served its purpose and cannot thereafter have any further effect or validity as a security, even by the agreement of the contracting parties. The instrument is dead and cannot be revived. Others however, hold that a paid mortgage may be re-delivered by agreement of the parties, as security for another debt or liability, and that it thereafter is a valid security for such other debt or obligation, even if these were not contemplated at the time the mortgage was executed. Whatever ruling may obtain, the principles involved are the same whether the mortgage be one upon real estate, or a security upon chattel property. What is true of the one also applies to the other. It is a proposition too elementary to require elaboration that after payment a mortgage has served its purposes and the mortgagee has no power, as a general rule, to assign the same as a valid and subsisting security, nor can he revive it for the purposes of securing the original or any other debt or liability.1

1 Fewell v. Kessler, 30 Ind. 195; Pelton v. Knapp, 21 Wis. 63; McClure v. Andrews, 68 Ind. 97; Thomas' Appeal, 30 Pa. St. 378; Thompson v. Ins. Co., 139 Ind. 325.

The proposition is axiomatic that whatever extinguishes the mortgage debt will, as a matter of course, extinguish the mortgage lien, and for this reason the payment and acceptance of the full amount secured by the mortgage discharges the lien of the mortgage, whether the payment is made before or after a breach of any of the conditions, and hence, restore the property to the mortgagor, and this whether the mortgage be considered a mere lien and an incident to the debt only, as in some States, or whether the element of the common law mortgage prevails, as in others. It is the generally accepted doctrine in America that mortgages made to secure future advances are valid even if no limit is therein expressed beyond which credit shall not be extended, though the authorities are not entirely harmonious in this regard; and the agreement between the mortgagor and mortgagee that the mortgage shall stand as security for further advances or other debts and liabilities is, as between the original parties, a valid and binding agreement, though the same is oral, if the advances have been made under it, and a court of equity will enforce such oral agreement, if there are no intervening rights of third persons that have attached to the property by mortgage, judgment or other lien; and this even if the mortgage does not purport to secure future advances. ; likewise parol evidence may be introduced to show that at the time a new note was given, the parties agreed that the mortgage was to stand as security for it; and if there is a breach of the conditions of the mortgage, an oral agreement between the original contracting parties, that the same shall be considered as security for further loans or other liabilities, and there have been other debts contracted or liabilities incurred, upon the faith of such oral agreement, equity will refuse to aid the mortgagor, or any one having no higher equities, in escaping the consequences of his oral contract. It may be considered as well settled that as between the mortgagor and mortgagee, the original 2 Trust Co. v. Iron Co., 51 N. J. Eq. 605; Lovelace v. Webb, 62 Ala. 271; Witzinski v. Everman, 51 Miss. 841.

3 Walker v. Walker, 17 S. C. 329; Upton v. Bank, 120 Mass. 153; Taft v. Stoddard, 142 Mass. 550.

4 DeCottes v. Jeffers, 7 Fla. 284; Port v. Robbins, 35 Iowa, 208.

5 Platt v. Griffith, 27 N. J. Eq. 207; Stone v. Lane, 92 Mass. 74; Douglass v. Stetson, 159 Mass. 428.

debt secured may be increased by tacking to it new or other debts and liabilities, in the absence of any other specific contract therefor than the provision to that effect in the mortgage, and if there is no such stipulation in that instrument, then by oral or written contract subsequent to the execution of the mortgage lien. However, should there be no condition in the mortgage providing for the security of future advances, and the debt be entirely paid off, can the mortgagor re-deliver the mortgage, by agreement with the mortgagee or his assignee, with the understanding that the mortgage shall stand as security for such subsequent debts? The answer is in the affirmative, with this reservation, that there must be no collision with the rights of creditors whose liens upon the property have been acquired after the payment of the original debt and prior to the time such agreement of revivor was made. Business principles and expediency demand, and reason dictates that the parties should be permitted to make any contract affecting their property which they please so long as they do not trespass upon the rights of others, or contravene the law. In the agreement between the grantor and grantee of such a mortgage to revive a paid mortgage as security for a new liability, when there are no intervening rights of others that have accrued to them, and have become a lien upon the particular property included in the mortgage, there is no principle of law violated; they have the legal capacity to contract and hence can enter into any stipulation between themselves as they may wish, so long as they do not contravene the law by so doing, and having entered into such stipulations and enjoyed the benefits thereof, it is the policy of the law that such stipulations are to be faithfully recognized and performed by the parties. Therefore, if goods are pawned as security for a particular demand, the pawnee has no lien thereon for any other or subsequent debt contracted by the pawnor to him, unless there has been an express agreement that he should have a lien for such latter debt, or unless the circumstances of the transaction create a lien by implication, and thus the principles applicable to a mortgage are also involved in a pledge. And again, a mortgagee, having received the

6 Gilliat v. Lynch, 2 Leigh, 535; James v. Johnson, 6 Johns. Ch. 429.

amount due on the mortgage, has no power, by re-loaning the money paid or a part of it, to revive the mortgage, after a lien of a bona fide encumbrancer has attached, and whose claim is subsequent to the mortgage but prior to the repayment, for in the interim between the payment of the amount due on the mortgage and the re-loaning, no matter how short this may have been, the junior encumbrance became, by reason of the payment of the first mortgage, a first lien on the property; and then, from the consideration that if the first mortgage is discharged, to hold that it may be kept alive by a subsequent agreement to loan the amount or a part thereof, would work a fraud upon the subsequent encumbrancer, which equity will not sanction under any consideration. Nor can a mortgagor, after having paid off the debt secured by his mortgage, take an assignment thereof to himself, and then re-issue it by assigning it to a third party for value, if by so. doing the transaction would have the effect of defeating the claims of either prior or subsequent lien holders; and he could not revive the mortgage to the prejudice of others by returning the money to the nortgagee, after he had once paid it in satisfaction of the secured debt, by making an agreement with him to the effect that the lien of the mortgage shall continue as originally; but if the rights of third parties have not intervened after the payment of the money and the repayment of the same under the agreement that the lien shall continue, there is no valid reason why it should not be kept alive in this manner. It seems to be an unquestioned principle of equity jurisprudence in England and America, that a court of equity will keep an encumbrance alive, or it will consider it extinguished, as may best be in conformity with the purposes of justice, and in accordance with the actual intent of the contracting parties; thus recognizing the doctrine that obligations which have been discharged by payment or otherwise, may, if the contracting parties so agree, be revived and new

7 Large v. Van Doren, 14 N. J. Eq. 208; Gardner v. James, 7 R. I. 396; Kellogg v. Ames, 41 Barb. 218; Bank v. Roberts, 70 Me. 384; Mitchell v. Coombs, 96 Pa. St. 430.

8 Gardner v. James, 7 R. I. 396; Carlton v. Jackson, 121 Mass. 592; Whitney v. Franklin, 28 N. J. Eq. 126. 9 Champeny v. Cooke, 32 N. Y. 543; Marvio v. Vedder, 5 Cowen, 671; Bowman v. Manter 33 N. H. 530; Darst v. Gale, 83 Ill. 136.