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On the 20th day of April, 1818, the legislature passed an act authorizing the judges of the Supreme Court in the city of New York to receive fees for chamber business in said court, and for other services appertaining to their office, in the same manner as any other officer might do for the like services. The Constitution of 1821 forbade the judges to receive any fees or perquisites, or to hold any other office. Edward Paterson, Esq., in an interesting "Sketch of the Law Institute of the City of New York," prefixed to the Catalogue of the New York Law Institute Library, tells the following story of Chief Justice Jones and this fee system: "There was a standing rule in the Superior Court," says Mr. Paterson, "that notes of issue must be filed by a certain day before the next term, and if an attorney neglected to do this within the required time, he could only get his cause on the calendar by a special chamber order, for granting which the judge was entitled to one dollar. Mr. Lhad forgotten to file twelve notes of issue within the time required, and embracing all the twelve causes in one order he applied to Chief Justice Jones to grant it, which was promptly done. Mr. L-tendered a dollar as the proper fee, which the Judge contemptuously spurned. Twelve dollars, if you please, sir,' said the Judge. It is but one order,' said the attorney. There are twelve causes, sir, and that makes twelve dollars,' said the Judge; and so on for a long time, until finally a compromise was agreed on and a settlement had at fifty cents on a dollar."

Under the Constitution of 1846 the salary was $2,500; in 1857 it was increased to $3,500. In 1869 an act was passed giving the judges of the Court of Appeals $6,000 per annum, and the Supreme Court justices each $5,000 per annum, and each received five dollars a day for his expenses when actually engaged in holding court. In 1870 the salary of the chief justice of the Court of Appeals was raised to $7,500; that of the other judges to $7,000. In 1871 this was modified so as to give each judge in addition $2,000 annually in lieu of the amount allowed for expenses, and the salary of the justices of the Supreme Court was raised to $6,000 per annum. In 1872 this was amended by giving each judge $1,200 a year in lieu of the amount allowed for expenses. By the Laws of 1872, chap. 828, the judges of the Superior Court of the city of Buffalo receive $6,000 a year. By another statute the county judge of Kings county receives $10,000 a year; those of Albany and Westchester each $4,500 a year; those of Erie and Rensselaer each $5.000 a year. The county judge of Hamilton county receives but $800 a year; the judges of the other counties receive salaries varying from $1,500 to $4,000. The Surrogate of New York county receives $12,000 a year, and the Surrogate of Kings county $10,000 a year; the Surrogates of Albany, Rensselaer, Monroe and Westchester each $4,000; those of Oneida and Onondaga each $3,500. The Surrogate of Erie county receives $4,500 a year, while the Surrogates of the other counties receive salaries varying from $3,000 to $1,500. Each of the judges of the Marine Court of the city of New York receives a salary of $10,000 a year, and the Recorder, City Judge and the Judge of the General Sessions of the city of New York each receive $12,000 a year. The judges of the Superior Court of the city of New York and of the Court of Common Pleas for the county of New York each receive a salary of $15,000 a year. The judges of the District Court in New York receive each $6,000 a

year, and the police justices each receive $8,000 a year. The judges of the Supreme Court in New York receive $17,500 a year each.

The salaries of our judicial officers seem to be disproportionate to the salaries of the English judges, but when we take into consideration the greater number of judges that we have to do the same amount of work done by the English judges, the disproportion is no longer so great. There are in England, including the Lords of Appeal in ordinary, the ordinary members of the Court of Appeal and the judges of the High Court of Justice, the Chief Judge in Bankruptcy, and the Judge of the Court of Arches, thirtytwo judges. In addition, there are fifty-eight judges of county courts. These, with the aid of the Commissioners of Assize and nisi prius, do all of the law business, except criminal, in England. In this State we have thirty-three Supreme Court judges, six judges of the Superior Court of the city of New York, six judges of the Common Pleas, six judges of the Marine Court, seven judges of the Court of Appeals, three judges of the Superior Court of the city of Buffalo, twenty-five surrogates, nine special surrogates, fiftynine county judges, thirteen special county judges and three United States District judges. There are in the State and in England certain justices of the peace of a limited local jurisdiction, and other judges that have a criminal jurisdiction, but, as the number of these in each country is about equal, I have not taken them into consideration. In England, then, there are ninety judges, while in this State there are one hundred and seventy-five judicial officers. One would suppose that in a commercial country like England, containing, as it does, about three times as many inhabitants as the State of New York, there would necessarily be more lawsuits than in this State. I have made a rough calculation of the number of counsel, solicitors, etc., in the "Law List" for 1877, and I find there are in England and Wales about 11,000. There are about 7,000 lawyers doing business in this State. This would indicate that there is fifty per cent more business to do in England than in this State.

Are the people of New York more litigious than the people of England, or do we require more judges to do the same amount of work? Or is the work of our judges increased by the great number of chamber motions made here?

Many of the judges in this city are very hard workers, and earn all the money they receive. But too much of their time is taken up in hearing motions and settling questions that have nothing to do with the real merits of the cases. I am not far out of the way when I say that one-quarter of the judicial force of the superior courts of this city is employed in hearing and determining such motions. In the Supreme Court, in this district, a "motion calendar" is made up for the first and third Mondays in each month. These calendars throughout the year will average, at least, 275 motions.

But probably the hardest-worked judicial officer in the State is the Surrogate of the city and county of New York. This city, in population, is about onefifth of the State. In the amount of business done here the proportion is smaller, yet, while one man does at least one-fifth of the work for a salary of $12,000 a year, it requires sixty-nine men to do the other four-fifths, for which they receive in the aggregate about $170,000. CHARLES H. TRUAX.

CONSTITUTIONAL LAW-RAILWAYS IN

STREETS.

NEW YORK COURT OF APPEALS-SEPTEMBER 18, 1877.

MATTER OF GILBERT ELEVATED RAILROAD COMPANY. The constitutional provisions which went into effect January 1, 1875, forbidding the legislature to pass a private or local bill granting to a corporation, etc., the right to lay a railroad track, or granting any exclusive privilege, etc., or to authorize the construction, etc., of a street railroad without the consent of property owners, held not to be violated by section 36 of Laws 1875, chap. 606, authorizing the construction of an elevated street railway in New York city.

Where at the time the constitutional provisions went into effect, a corporation had the right under its charter to lay a railroad track in the streets of a city, such right was not affected by the provisions mentioned, nor were legislative enactments passed in 1875, and accepted by the corporation, changing the method of constructing such track, obnoxious to such provisions.

A

PPEALS from orders appointing commissioners to appraise damages. Sufficient facts appear in the opinion.

CHURCH, C. J. These appeals are from orders appointing commissioners to appraise damages in proceedings to condemn lands for the purpose of the respondent's road. The proposed route lies through South Fifth avenue in the city of New York. The fee of the street opposite their premises is in the appellants, and not in the city. Several points are presented, and have been exhaustively argued with great ability and ingenuity, and some of them are not free from difficulty. After as full an examination as I have been able to make, I have arrived at a conclusion upon the respective points made, which I shall proceed to state, with the reasons therefor, briefly, without attempting to elaborate the arguments in their support. Among the most material of these points is the proposition that the thirty-sixth section of the Rapid Transit Act, so-called, chapter 606 of the Laws of 1875, the first clause of which it is alleged was intended for the benefit of the respondent's corporation, is a violation of some of the provisions of the last series of amendments to the State Constitution, which took effect on the 1st day of January, 1875, before the passage of the act. These provisions are as follows:

The legislature shall not pass a private or local bill in any of the following cases: Granting to any corpora tion, association or individual the right to lay down railroad tracks; granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever. The legislature is required to pass general laws in these cases, and prohibited from passing any law authorizing the construction or operation of a street railroad without the consent of onehalf, in value, of the property owners or the certificate of the commissioners appointed by the Supreme Court.

It is important to understand the status of the Gilbert company at the time of the passage of the Rapid Transit Act, as it has bearing upon the proper construction to be given to the act in its application to this company. Prior to the passage of this act, and before the amendments of 1875 took effect, under the successive acts of 1872, 1873 and 1874, the Gilbert Company became incorporated for the purpose of the construction and the operation of an elevated steam railroad. Two sets of commissioners had, in pursuance of said acts, designated the routes over which the road was to be constructed, and the corporation was authorized, in the fullest manner, to occupy the streets

and avenues designated for that purpose. Authority was also conferred to condemn lands under the power of eminent domain. The city authorities were prohibited from giving permission to any other person or corporation to do any of the acts which were authorized by the act to be done by this corporation, and were expressly enjoined to aid the corporation in carrying out the purposes of the laws. Thus it will be seen that at the time of the passage of the Rapid Transit Act in 1875, the corporation was the grantee of the right to lay down tracks upon the elevated plan described in the charter, and had all the incidental powThe charter had not ers necessary for that purpose.

been forfeited, nor had there been a failure to comply with the conditions imposed in respect to the time of building the road.

The Rapid Transit Act authorized a comprehensive and independent system of rapid transit by elevated railroads through the city. It authorized the appointment of commissioners by the mayor to determine the necessity for such railways, to locate routes, fix upon the plan of construction, organize and put in operation a corporation with powers defined by the act, and then, by the first clause of the 36th section, which is in .. whenever the controversy here, it provided that route or routes determined upon by said commissioners coincide with the route or routes covered by the charter of an existing corporation formed for the purpose provided by this act, provided that said corporation has not forfeited its charter or failed to comply with the provisions thereof, requiring the construction of a road or roads within the time prescribed by its charter, such corporation shall have the like power to construct and operate such railway or railways upon fulfillment of the requirements and conditions imposed by said commissioners as a corporation specially formed under this act." The commissioners appointed for that purpose adopted the routes of the Gilbert Elevated Company, but required since changes in the form of the structure in a portion of the streets from an arch covering the streets, supported by posts located at the curbs, as provided in the charter, to a structure supported by upright posts in the center of the streets, and required a reduction of fare and the running of extra trains at half fare for the benefit of the laboring population, all of which has been assented to by the company. A point was also made that the commissioners made more radical changes of the structure from a tubular railway, to be operated in whole or in part by pneumatic power, to an open steam railway, but in one of these cases (the case of the Sixth Avenue Railroad Company against the Gilbert Company, the evidence and findings in which are incorporated into the papers,) it is found that the charter contemplated an open railway to be operated by steam power, and such is, I think, the proper inference from the act itself, and the facts proved, so that this point, whether important or not, may be regarded as out of the case.

It is pertinent, also, to refer to the rule of construction to be applied. Every presumption is in favor of the constitutionality of acts of the legislature. An adverse doubtful construction is not sufficient to condemn an act; it is only in cases of a clear and substantial departure from the provisions of the fundamental law that courts will declare acts of the legislature invalid. 55 N. Y. 54; 50 id. 553; 14 Mass. 340; 17 N. Y. 235; 23 Wend. 166. There is a distinction in this respect between the State and Federal constitu

tions. The former grants to the senate and assembly all legislative power not prohibited by the latter, or excepted by the instrument itself. The latter grants to Congress specific powers only, hence the exercise of a legislative power by the State legislature will be presumed constitutional under the general grant of power, and will be sustained unless brought clearly within some of the exceptions; while a similar exercise of power by Congress can only be justified by an affirmative grant embracing the specific power exercised. Assuming that "the corporation having coincident route or routes," specified in the 36th section of the Rapid Transit Act, was descriptive of and was intended to apply only to the Gilbert Company, the first question is, in view of the facts and rule of construction referred to, whether the legislature did by that act grant to the Gilbert Company the right to lay down railroad tracks within the meaning of this clause. The right existed prior to the passage of the act, and that right the legislature intended to protect. The act recognized in terms that the corporation was formed for the purpose provided by the act, which purpose was to build and operate an elevated steam railway in and through the streets of the city. The legislature granted that right to the new corporation authorized to be created, but the company already possessing that right, whose route or routes were satisfactory to the commissioners, was intended to be recognized and its powers confirmed. The changes required were restricted in character. By the charter the whole street was to be covered by the structure. By the conditions imposed only a portion of some streets could be occupied. The reduction of fares and the requirement for extra trains at half fare were clearly restrictions of existing rights. I cannot accede to the proposition that any change in the structure and in the manner of occupying the streets, however restrictive upon the company or beneficial to the public in the use of the streets, constitute a fresh grant of the right to lay down railroad tracks. It is a misnomer to call such restrictions grants of any right whatever. In my judgment an act restricting and regulating an existing right to lay down railroad tracks is not a grant of that right within the meaning of this clause. It is not within the letter of the clause, nor within the evils at which the provision was aimed.

The next question is whether the Rapid Transit Act, "especially the thirty-sixth section," violates the other provision quoted prohibiting the Legislature, by a private or local bill, from "granting to any corporation, association or individual any exclusive privilege, immunity or franchise whatever." It is not easy to understand precisely what was intended by this clause. It is difficult to construe this clause as meaning any thing less than an absolute monopoly, but it is not deemed necessary to define its precise significance. It is sufficient to say that it has not been made clear that the clause was violated by the Rapid Transit Act. No exclusive right or franchise was granted to the respondent corporation upon any construction of the clause. Every substantial right existed before the passage of the act. The legislature evidently felt embarrassed by these provisions, and attempted to avoid all questions in respect to them by passing a general act. The act is general in form at least, and probably as much so as the objects sought to be accomplished would permit. The objection that the consent of a majority of the owners or the certificate of the Supreme Court

commissioners must be obtained has no application to this corporation, nor does the Rapid Transit Act require such consent or certificate.

Objection was made that the act of the commissioners in designating the routes is void, because the route designated crossed Broadway below Ffty-ninth street, which is forbidden by the Rapid Transit Act, and on this point the court says: "I do not think that such exclusion would invalidate all the routes designated. The commissioners are authorized to designate the route or routes for such railways, and it is not necessary that all the routes should coincide. The authority is co-extensive with the coincidence of the route. We think that this objection is not fatal to the rights of the respondents to an order to appraise appellants' damages to property in South Fifth avenue. The objection that the Rapid Transit Act improperly delegates legislative power to the commissioners is not tenable. The legislature had the power to determine all the questions delegated to the local authorities, but there was no rule which forbids the legislature referring such questions to a subordinate tribunal.

The question of damages is not involved in these cases. To determine what particular occupation of the streets is to be deemed a legitimate public use involves important and delicate questions. Whether the structure contemplated to be built and operated will be an invasion of the property of the building owners in any of the streets entitling them to some remedy for damages, or whether it will be regarded as a legitimate use of the streets for the benefit of the public, the inconveniences and annoyance of which private abutting ownership is subject to, cannot with propriety be adjudicated upon these appeals. The criticism upon the terms of the order is not tenable. The order is to be construed in connection with the constitution and the statutes, and the appellants will be at liberty to claim any damages to which they are constitutionally and lawfully entitled. The order must be affirmed.

MORTGAGE OF CROP TO BE PLANTED. SUPREME COURT OF TENNESSEE, APRIL TERM, 1877.

WYATT V. WATKINS.

A mortgage by the owner of land upon a crop yet to be planted is valid against an execution creditor.

ACTION to determine the right to cotton levied

upon under an execution upon a judgment in favor of defendant and claimed by plaintiff by virtue of a mortgage. The opinion states the case.

SNEED, J. The agreed case shows that the plaintiff agreed to furnish one Houston McCain with supplies, on condition that McCain, who was a farmer, should execute to the plaintiff a mortgage of his cotton crop, for the then current year (1875), as a security for the supplies so furnished. A deed of trust to that effect was accordingly executed in February, 1875, upon a crop of cotton to be planted and grown upon the laud of the said McCain in the year 1875, to secure said Wyatt for supplies furnished and to be furnished to said McCain, to enable him to make said crop." This deed of trust was duly registered. When the crop matured and became subject to levy, the defendant, Watkins, having recovered a judgment against McCain for the sum of $42.95 before the execution of the deed, caused an execution to be levied on enough of the cotton to discharge his debt; and this action was

brought to determine who has the better right. The question presented is, whether a crop of cotton yet to be planted is the subject of a valid mortgage; and the adjudged cases seem to be very much in conflict on the subject. A humane policy would seem to favor the affirmative of the proposition; as, if such is the law, the indigent farmer may obtain credit upon his prospects, and be enabled to subsist his family pending the cultivation of his crop. The case of Grantham v. Hawley, reported by Sir Henry Hobart in the reign of James I, is one of the earliest upon the subject, and has been frequently cited in support of the doctrine that a thing not in esse may be the subject of a valid chattel mortgage. That case, as cited, was as follows: A man seized of land let the same by indenture for twenty-one years, and covenanted that it should be lawful for the lessee, his executors and assigns, to carry away to his own use such corn as should be growing upon the ground at the end of the term; and afterward the lessor released his reversion; and one question was, whether the lessee was entitled to corn so growing; and it was argued, on the part of the assignee of the reversion, that it was merely contingent whether there should be corn growing upon the ground at the end of the term or not, and that the lessor never had property in the corn; and, therefore, could not give nor grant it, for the right to the corn standing at the end of the term, being certain, accrued with the land to the lessor. But judgment was given against the reversion, because it was said that the property, and very right of the corn when it came into being, was passed away, for this was both a covenant and a grant; and, therefore, if it had been of natural fruits, as of grass or hay, which run merely with the land, the like grant would have carried them in property after the term. Then, though corn were fructus industrialis, so that he that sowed it might seem to have a kind of property ipso facto in it, divided from the land, and, therefore, it would go to the executor, and not to the heir; yet, in this case, all the color the reversioner had to it was by the land which he claimed from the lessor who gave the corn; and though the lessor had not the corn actually in him, nor certain, yet he had it potentially, for the land was the mother and root of the fruits. Therefore, he that had that might grant all fruits that might arise upon it afterward, and the property would pass as soon as the fruits were extant." Hob. 132; 1 Pow. Cont. 157, 158, 2 Walp. ed.

When stripped of all quaintness of verbiage, the plain doctrine of this old case is, that he who owns the soil may sell or assign the crops to be grown upon it. It is said in Benjamin on Sales, that in relation to things not yet in existence, or not yet belonging to the vendor, the law considers them as divided into two classes, one of which may be sold, while the other can only be the subject of an agreement to sell-of an executory contract. Things not yet existing which may be sold, are those which are said to have a potential existence, that is, things which are the natural product, or expected increase, of something already belonging to the vendor. A man may sell the crop of hay to be grown on his field, the wool to be clipped from his sheep at a future time, the milk his cow will yield in the coming month, and the sale is valid. But he can only make a valid agreement to sell-not an actual sale where the subject of the contract is to be something to be afterward acquired; as the wool of any sheep or the milk of any cows that he may buy within the year, or any goods to which he may obtain

title within the next six months. Benj. on Sales, § 78. The precise point now in judgment, however, has been adjudged against the proposition, that a thing not in esse is the subject of a valid sale or mortgage. Thus, it was held in Hutchinson v. Ford, 9 Bush, 318, where this exact question was involved, that "a mortgage of a crop to be raised on a farm during a certain term, but which is not yet sown, passes no title, and the mortgagee has no claim against a purchaser of the crop for it, or its value." Everman v. Robb, 3 Cent. L. J. 735; Ofin v. Sill, 8 Wend. 111; Lunn v. Thornton, 1 Man., Gran. & Scott, 379; Barnard v. Eaton, 2 Cush. 295; Bank of Lansingburgh v. Cary, 1 Barb. 542; Comstock v. Scales, 7 Wis. 159; Redd & Co. v. Burris & Williams, Mss., Ga. 1877.

Many other authorities might be cited to the same effect, and quite as many that look in the other direction. Andrew v. Newcomb, 32 N. Y. 417; 3 Law Reg. 19-33; 17 Conn. 144; Holroyd v. Marshall, 10 H. L. Cas. 189; 18 Pick. 168; 14 id. 497; 10 Metc. 481; 12 Cush. 376; Brett v. Carter, Cent. L. J., May 5, 1876; 32 N. H. 484; 18 Ver. 465; 1 McCaslin's Ch. Rep. 408; 24 Wis. 551; 26 III. 121; 48 Ala. 109; Butt v. Ellett, 19 Wall. 544; 42 N. Y. 620.

In one of these cases it is said: "In the case of crops to be sown, it vests potentially from the time of the executory bargain, and actually as soon as the subject arises." Andrews v. Newcomb, 32 N. Y. 417. Mr. Story says, that rights in remainder and reversion, possibilities coupled with an interest, rents, franchises and choses in action, are capable of being mortgaged. Eq. Jurisp., $ 1021. A court of equity, he says, will support assignments, not only of choses in action, and of contingent interests and expectancies, but also of things which have no present, actual or potential existence, but rest in mere possibility; not, indeed, as a present positive transfer operative in presenti (for that can only be of a thing in esse), but as a present contract, to take effect and attach as soon as the thing comes in esse. Id., § 1040. Among the examples he cites, is that of the assignment of the head-matter and whale-oil to be caught in a whaling voyage now in progress. The right will attach to the head-matter and whale-oil when attained. Id. So strongly are courts of equity inclined to uphold assignments when bona fide made, that even the assignments of freight, to be earned in the future, is good in equity, and will be enforced against the party from whom it becomes due. Id., § 1055. In Story on Sales, it is said: "While a person cannot make a present sale of all the woo1 there may grow on a sheep, which he may hereafter buy, nor any other thing in which his interest is wholly prospective and doubtful, there may be made a valid sale of the wine a vineyard is expected to produce, or the grain a field is expected to grow, the milk of a cow for the next year, or the future young of animals." Story on Sales, § 183; McCarty v. Blivens, 5 Reg. 196. Whatever is the subject of a valid sale is, of course, the subject of a valid mortgage. A man may sell or mortgage every thing that is his property; and such a sale, if bona fide, will be upheld in law and equity. Property is the right and interest a man has in lands and chattels to the exclusion of others. 17 Johns. 283; 11 East, 290; 4 Pet. 511. All property, real or personal, corporeal or incorporeal, movable or immovable, may be the subject of mortgage. 1 Hill, Mort. 6. Things are said to have a potential existence when they are the natural product, or expected increase, of something already belonging to the vendor.

tombs. Ch. Div., June 2, 1877. Re Williams' Trusts, 36 L. T. Rep. (N. S.) 939.

Construction: death coupled with contingency: period of contingency.- By will, made before 1838, a testator devised unto his seven children "and their heirs forever, the fee simple" of certain real estate; and if either of his children should die, leaving children, the share of him or her so dying to go to such children; but if any of his children should die, and leave no child, the share of him or her so dying to go to his (the testator's) surviving children and their heirs forAll the seven children survived the testator. Held, that the word "die" must be construed to mean die in the life-time of the testator; and, therefore, that the seven children took as tenants in common in fee. Ch. Div., June 5, 1877. Apsey v. Apsey, 36 L. T. Rep. (N. S.) 941.

ever.

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 proprietor of the soil to plant, cultivate and gather his crops, to the exclusion of all others, is an absolute legal right, and an incorporeal property; and incorporeal property is as well the subject of valid sale and mortgage as any other kind of property. The mortgagor, in this case, was the proprietor of the land on which he proposed to raise the crop in controversy. The crop had a potential existence because it was to be the natural product and expected increase of the land then owned and occupied by him. Why may he not obtain the credit necessary to make the crop by executing a mortgage upon it? We see no sound reason why. Who is to be injured by it if the transaction is bona fide, and there be no superior lien for rent or otherwise? Who is to be misled by it if the transaction is at once published to the world by registration, as was done here? If the merchant is willing to furnish him with supplies, and enable him to make the crop, and take the risk of the crop itself for security, who has a right to complain, and where is the mala fides of the transaction? Is there any doubt that a court of equity would sustain the mortgage, and protect the mortgagee, in such a transaction? Then, wherefore must he fail in a court of law, into which forum the parties have brought the case, and where our liberal statute requires that, in such a case, their rights shall be adjusted upon equitable principles. In the case of Andrews v. Newcomb, above cited, it is said that, as long as the time of Ch. J. Hobart, it was held that one proposing to plant crops might convey them in advance, and that the fruits which should arise afterward, would pass as soon as they were extant; citing Hob. 132; 3 Johns. 216, and Hare v. Celay, Cro. Eliz. 143. Crops to be raised, say the court, are an exception to the general rule, that title to property not in existence cannot be affected so as to vest the title when it comes into being. In the case of crops to be sown, it vests potentially from the time of the executory bargain and actually as soon as the subject arises. 32 N. Y. 421. The judgment, in this case, certainly created no lien upon the crop, which the statute protected from levy until after maturity. The judgment debtor had failed with his title, and the judgment creditor could stand on no higher ground than his debtor. We hold the assignment to be lawful and valid, and that the plaintiff below has the better right to the fund in controversy.

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CASES RELATING TO WILLS.

Charity: direction to accumulate: gift of surplus income after void bequest.-Testator bequeathed a sum of £200 to trustees upon trust to invest and apply the income thereof in keeping in repair certain tombs. He also directed that if, in any year, the whole of the income should not be required for the purpose for which it was given, the surplus income should be invested; and that, when the value of such accumulations should amount to £25, his trustees should pay over to the incumbent of A., for division amongst the poor of his parish, such sum of money as would reduce the value of such accumulations to the sum of £20. Held, that the gift to the poor did not fail by reason of its being a gift of surplus income after a void bequest; and that there was a good gift of the whole to

Construction: next of kin under statute of distribution: time when class to be ascertained: "then."-Testator bequeathed certain property among his daughters for life and for their issue after them, with bequests, on the death or failure of issue of any one daughter, to the surviving daughters for life and their issue after them, and from and after the decease of his last surviving daughter to and among the children of such daughter, "and if there shall be no such children, that the same shall be paid to such person or persons as will then be entitled to receive the same as my next of kin under the statute for the distribution of intestates' estate." The same clause also applied to the testator's residuary estate. Held, that the date of the death of the last surviving daughter, and not the date of the testator's death, was the period at which the testator's statutory next of kin were to be ascertained. Ch. Div., May 29, 1877. Mortimore v. Slater, 36 L. T. Rep. 947.

Devise of freeholds: conversion into personalty: reconversion into realty: election by conduct.- A testator devised all the residue of his real estate to trustees upon trust for sale; and declared that his trustees should stand possessed of the money arising therefrom upon trust, during the widowhood of his wife A., to pay her a certain annuity, and to pay the residue of the income to his son G., until bankruptcy; and, after the death of his wife, upon trust, as to one moiety of the trust premises for his son G. absolutely; and, as to the other moiety, in case his son G. should not have become bankrupt, for him absolutely, and, in case of 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 father's house in Sussex, and, by his will, devised the same in strict settlement. Held, that G. had power to elect; and had, by his conduct in his life-time, elected to take the house as reconverted into real estate. Semble where a person absolutely entitled, in a contingent event, to the proceeds of sale of real estate directed by will to be sold, gives notice to the trustees (before the event happens) that he elects to take the property in specie; such notice is just as binding on the trustees, when the event happens, as if it was given afterward. Ch. Div., June 12, 1877. Meek v. Devenish, 36 L. T. Rep. (N. S.) 911.

Equitable estates: construction: devise to trustees in fee: equitable interest co-extensive with legal interest: gift over. A testator, by will made prior to 1838, devised real estate to trustees in fee in trust for the sole benefit of his two daughters A. and B.; but "in case either

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