Imágenes de páginas

Of any

is obviously stronger than a rule of common law The net rule, however, to be deduced from the which requires a writing only. Yet Sir James Wig cases on this point appears to be this: A testator canram never for once adverts to this distinction, nor not make an interpretation clause by parol for his attends to the difference between a will of realty and will; but he may be so situated as to raise a preof personalty in this respect prior to 1 Vict. ch. sumption in the mind of the court that he intended 26.

to use certain words in an unusual sense. If the wills acts required merely a writing, they circumstances tending to raise such a presumption, would in all respects resemble the rule of the common extrinsic evidence may be given. See Essington v. law respecting incorporeal hereditaments, as regards Vashorn, 3 Mer. 434. But the court will not receive the admissibility of extrinsic evidence. Sir James direct evidence of his intention, as, for instance, that thought not; but he was wrong, although he would he verbally declared it was his intention to use cerbe right in supposing that the rules for admitting ex tain terms in an usual sense. The testator's intention trinsic written evidence in respect of wills are not the is thus like the light of day; when collected from same as those that affect the admissibility of similar the whole will, it becomes the key for interpreting a evidence where a document, inter vivos, is the subject particular passage; but the intention itself, like the of interpretation. He would be right, therefore, in sount of light, cannot be directly looked at. The respect to a particular proposition regarding the inter reader will, we hope, excuse our importing a little pretation of wills of realty by extrinsic evidence; | fancy into a subject that is in its own nature rather but he is wrong in generalizing his views so as to dry. Metaphor, indeed, is not often found in a legal embrace wills of personalty, and he certainly was disquisition, but the true poetic spirit - could we wholly unconscious of the reason why a testamentary boast of it — is never out of place. Peregrinantur document is one less within the range of extrinsic rusticantur may be very truly applied to all literary emevidence than if the question related to a writing inter bellishments. We fear, however, that our attempt to vivos. The reason of the distinction is to be found, please by exotic samples of literature may not be as not in the necessity for a writing, but in the require-successful as our elucidation of points of law. We hope ment, also, of attestation.

that in that forum we will be found impregnable. If so, It is to be regretted that Sir James Wigram did doubtless the gentle reader will readily condone an not adopt the time-honored distinction between patent occasional excursion into the regions of pure fancy. and latent ambiguities as a basis for his propositions. Certainly, we should be sorry that our knowledge of Simplicity of classification is the highest philosophy, law would be estimated by any extra-judicial remarks and, as doubtless every case where extrinsic evidence of ours, with respect to the operations of the planets, is admitted to explain a clause in a will is one of or other phases of nature; or that our possible mislatent ambiguity, there is no reason to let drop so conception of metaphorical beauty would be suffered plain and simple a division. However, although Sir to reflect upon our legal discernment. James thus nimbly bounded over the threshold, his The mode in which extrinsic evidence of facts is subsequent inventory of affairs inside is not marked | indirectly made to prove a testator's intention is very by any great want of care, if we remember the lim well illustrated by Wild's Case, 6 Rep. 17. There it ited area he proposed to investigate. This was not was held that a devise of real estate to A. and his the construction of wills generally, but their construc- children, A. having no children at the time of the detion as affected by extrinsic evidence.

vise, vests in A. an estate tail. See Wabb v. Byng, 2 K. The primary or plain grammatical sense of the & I. 669, note. See Buffan v. Bradford, 2 Atk. 220, as terms used by a testator will be modified, not only to what the time of the devise means, according to the by the context, but also by the circumstances in rule in Wild's Case. Here the words of the will are inwhich the testator was placed, and which he may be sensible, with reference to extrinsic circumstances, if presumed to have in view. Shore v. Wilson, 9 Cl. & the word "children be interpreted in its primary Fin. 565; Abbott v. Middleton, 7 H. L. C. 68. Of all | legal sense as a term of purchase. Ut res magis valeat, such circumstances parol evidence may be adduced; therefore, the term is interpreted to be a word of but not of his intention, unless the evidence be merely limitation, and A, takes an estate tail. But if the to identify the subject or object of a devise or be- phrase be sensible with reference to extrinsic circumquest. The testator's intention is, in all other cases, stances; in other words, il A. have children, then the an inference of law, deduced from the will itself and phrase is construed according to its primary legal sigfrom extrinsic evidence, but cannot be directly proved. nificance, and A. and his children take jointly; and if

But though extrinsic evidence of the testator's in A. have no children living at the death of the testator, tention is not admissible, except as regards the sub A, will take the whole interest. Mason v. Clarke, 17 ject or object of a gift, yet Lord Campbell, in Collison B. 130. v. Geeling, 4 Myl. & Cr. 66, on appeal 9 Cl. & Fin. 33, The word “son,” also, may be a word of limitation. is reported to have said that he would “admit evi Robinson v. Robinson, 1 Burr. 38. In that case the dence to show the sense in which a testator used any phrase was, “to such son as he should have lawfully particular expression."

to be begotten.” The word “heir” in the singular

[ocr errors]


[ocr errors]


number, sometimes, then, receives a like interpreta so high against him in his native Staffordshire that tion. Co. Litt. 9 b. n. 4.

a special statute was passed by parliament constituting The rules for construing wills by means of extrin a central criminal court in London, in which tribunal sic evidence may, then, be thus briefly summarized : any cause of a criminal nature might be tried, for The terms of the will in their primary sense, or as removing which from its proper venue there might explained by the context, must be inapplicable to the appear to be sufficient reason. circumstances of the testator, before verbal evidence Palmer was tried and convicted in this court of the of these circumstances can be received by the court. murder of a certain John Parsons Cook, who had been Secondly, direct verbal evidence of a testator's inten- | his latest victim. This Cook and Palmer were intimate tion, and not merely of the circumstances of which sporting friends, and the evidence showed that the doche was placed, will be admitted only to identify the tor was in the habit of giving his client frequent doses subject or object of a bequest, when the terms denot of medicine, which never agreed with the stomach of ing the subject of the gift or of the donee are appli- Cook. So much quackery, attended with such suscable to more subjects or donees than one.

picious results, and administered by that very unsucAs regards extrinsic evidence, the terms of the cessful practitioner, Dr. Palmer, led to an analysis of whole will must always control the meaning of a Cook's stomach and its contents, as, also, of his whole particular passage, except that, if technical terms of remains. Antimony and some other deleterious sublaw be used such passage, the context must be

were found in the intestines, but not in unusually strong to defeat the legal phrase of its pri- quantities sufficient to cause death. No strychnine mary, technical meaning: An amateur testamentary whatever was found in the remains, and get the draftsman, therefore, will do well to avoid the use of theory of the prosecution, and of the medical evidence legal phrases. They are never necessary in wills, on which it was founded, was that Palmer had just and, if incorrectly applied, will do an infinity of mis administered that precise quantity of the strychnine chief to the context. The courts seem to discounte as sufficed to destroy life, but to leave no trace of its nance all pettifogging attempts to deprive the great existence behind, like the sting of a certain class of mystic terms of the law of their pristine legal signifi- wasps, which are said to perish after once infusing cance, and will gladly suffer them, like Sampson's their virus. foxes, to roam up and down the inheritance, to the This theory was advocated, on the Palmer trial, terror of future amateur lawyers, and the great profit by Dr. Taylor, the eminent analyst and chemist. His of experienced practitioners of the present day. testimony swayed the minds of the jury, and Palmer

was found guilty and executed.

It seems abundantly clear that there were ample THE WHARTON TRIAL.

grounds for doubting Palmer's guilt, in Cook's case, The Wharton trial must have reminded the senior and that the benefit of this doubt ought to have been portion of our readers of the famous Rugeley poison- | given to the prisoner, but so many charges of a simiing cases that occurred in the village of that name, in lar nature had poisoned the atmosphere of public Staffordshire, England, about sixteen years ago. A opinion against him, that he was really found guilty certain William Palmer, M. D., of Rugeley, finding, rather on hearsay evidence of general bad character perhaps, that he could make a patient no better, be than on legal testimony of the specific charges adduced came a betting man himself. He was soon known in against him.

against him. Public opinion, however, from that all sporting circles as the fast doctor from Rugeley. time to this has indorsed the verdict of the jury. On the whole, he was not disliked by the gay society Society, in fact, is resol ved to show no mercy to secret in which he moved, and, as far as regarded his betting murders involving premeditation and a use of means transactions, a better blackleg could not be found. that are not easily discernable. But rumor, which loves to attack thrones and princi It is impossible for us to offer any opinion as to palities, does not spare even the frequenters of Tat Palmer's actual guilt. The evidence was strong, but tersall's, and a report began to be circulated that all not conclusive, in Cook's particular case. It was just connected with Palmer, either by consanguinity, af- such an array of circumstantial evidence that a jury finity or spiritual relationship, were remarkably short- would believe that the accused committed the crime, lived. Further curiosity on the part of gossipers led but yet would not have that plenary chain of legal to the discovery that the lives of his numerous de- evidence and circumstances that would render the ceased relatives were all insured by Palmer. He had discuarge of their duty a matter of pleasure. Cases literally “booked” them for eternity, the moment he such as these certainly are ones in which a jury should gained their good wishes. Among this gloomy list act with all the alertness of a vigilance committee. of victims even his own mother seemed entitled to At the same time, they should take care not to do be included, as the circumstances of her death raised publicly what the culprit is accused of doing secretly. much suspicion. The newspapers took up the cry A rash verdict in one case only leads to the acquitagainst Palmer, and they never lowered tone until tal of the next two or three notorious murderers put they had hunted their game to death. Prejudice was on their trial. On the other hand, when a jury gives


[ocr errors]

a verdict in a case of this kind, it is absolutely neces It has been the uniform custom heretofore to adversary that the clemency of the governor be never ex tise for proposals for publishing these reports before tended to the criminal. Society must be protected letting the contract, and such a course is required by against the commission of such crimes — else no one the intent, if not by the strict letter of the law. Secwould be secure. The evidence of experts, however, tion 2 of chapter 224, Laws 1848, provides that "before in these cases, ought not to be swallowed by juries entering into said contract, it shall be the duty of said without much caution. Experts in patent and chem- reporter, secretary of state and comptroller, to receive ical cases contradict one another too readily to be and consider all proposals for the publication of said entitled, on the whole, to unreserved confidence. reports which may be made to them.” But such a Their evidence is valuable, but the common sense of course, in the present case, would have defeated the the jury should strain and test it narrowly. Their object of the board. It being a sort of coup de main, practical sagacity is the anchor both of society and the it was thought that the ordinary rules of honorable accused.

official conduct and of law did not apply.

For some reasons of more interest to the compTHE COURT OF APPEALS REPORTS. troller than to the public, that officer has made himself

the especial defender of the action of his board, and

we have witnessed him exerting the whole strength It has sometimes occurred that public officers and of his clear, unclouded faculties in attempting to prove men in high stations, after a most uneventful and or

that he and his coadjutors have done nothing but dinary career, have suddenly, as their terms were

what pure officials and honorable men ought to have about to close, astonished the world by exhibiting a done. But, in listening to his reasons one cannot power of invention, a choice of expedients, and a

help being painfully conscious that he is trying quite depth of resource worthy of Talleyrand. Such an ex as hard to satisfy his own conscience as the judgment hibition has just been made by some of the officers of of his hearer. “Without firmness enough to avoid a this State.

dishonorable action, he has feeling enough to be It will be remembered that nearly three years ago ashamed of it." the contract for publishing the court of appeals reports But the comptroller is guilty of a double wrong, in was given to Banks Brothers, of this city, they agree first doing an unworthy thing, and then offering a ing, under a penalty of $5,000 in case of a breach, to direct insult to our understanding, by the weakness publish and sell to the public the reports, at sixty and of his reasons for so doing. These reasons are briefly eighty cents a volume, according to size. This con as follows: 1. Mr. Banks had a claim

upon tract they have persistently and openly violated from lication of these reports. 2. We have saved the prothe beginning, by charging for each volume $2.50. fession twenty-five cents on a volume. 3. The law Last winter a clause was smuggled into the appropria- don't require us to advertise for proposals. tion bill, authorizing the secretary of State to continue And do you really believe, Mr. Comptroller, that, the contract for five years.

But the thing was so because a man has persistently violated a contract patent a fraud that the secretary could not be induced which he has made with you, that he has a claim upon to become a party to it. Some new expedient must you to renew it? If such is your opinion, it is, happily, be resorted to, to keep the monopoly in the hands of not shared by the great majority of men. If you had these honorable and influential members of the Albany taken the trouble to consult your own judgment before "Ring.” The contract was to expire by lapse of time assigning such a reason, you would have discovered in March next, and a new contracting board would that it did little honor to your discretion. So far as most likely require Messrs. Banks to take their chances the public is aware, the only claim that Mr. Banks with other bidders, and to adhere to their contract if has upon you is that resulting from your peculiar it was awarded to them.

political relations, which ought never to influence an But the present contracting board, under the joint honorable "servant of the people,” as you delight to manipulation of Banks and Comptroller Nichols, has term yourself, in the discharge of his public trust. shown itself equal to the occasion, and determined to What private claims Mr. Banks may have upon you, forestall the action of the incoming officers in the in of course, it is impossible for the public to know. terest of Banks Brothers. Accordingly, on Thursday Your second reason, that you have saved the proof last week it met in secret session, canceled the session twenty-five cents on a volume, is a mere existing contract under which the publishers were to quibble. Three years ago the contract was let, after receive sixty and eighty cents per volume, and made advertising for proposals, at about one-third of the a new contract to continue three years from date, and present rate.


you, Mr. Comptroller, are so tender under which the Messrs. Banks were to receive $2.25 of the pockets of the profession, why did you not see per volume. No notice was given of the proposed to it, that that contract, to which you were a party, action of the board to the other publishers in Albany was enforced? But, aside from that, you know now and New York. Nor were any proposals or bids for by positive assurance from responsible parties. You the work asked or desired.

knew perfectly well when this new contract was made

the pub


whom you

that more than one equally honorable and equally sand dollars every year from the pockets of the prol'esponsible firm in this city would take the contract fession of this State and transfer it to the pockets of at a price less than half that given to Banks, and do the publishers. the work better, and, what is more, fulfill faithfully the agreement. If you do not, or did not, know this,

CURRENT TOPICS. we tell you now, and will make our words good, that

If there is any thing in human action that indicates there are at least two of the leading publishing firms a noble nature, it is honorable conduct under adverse in this city that will take the contract, fortified by circumstances. In prosperous times, when each sucany safeguards for its observance that you or your cessive day adds to the position or the opulence of an board can devise, at one dollar a copy, and will pub- individual, it is easy for him to display those traits of lish a better report, so far as its mechanical execution

character which he knows the world to esteem meriis concerned, than Messrs. Banks have ever done at torious. When the hum of fortune is passed, and ad$2.50 a volume. But you and your board were not vancing life brings no increase in wealth or standing, ignorant of this fact, and it was because you knew it

it may be pleasant, as well as politic, to maintain the that you determined to proceed in secret, and to fore old standard of conduct. But in the day of disaster, stall the action of your predecessors.

when substantial recompense does appear to not folYour third reason, that the law does not require low honest deeds, and he who bears himself like a man you to advertise for proposals, is but a plausible pre can only be sure of the reward of an approving contense. You take delight in informing those with science, the estimate such one places upon upright

have contentions that you are “a lawyer, dealing is made manifest. Certain of our State offiand know all about it.” If you are a lawyer at all cials, who had been shrewd enough to put themselves worthy of the name, and we presume you are, you

where the success of the principles they pretended to knew that it was not the intention of the statute that advocate must lift them into public place, discovered this contract should be let in the clandestine and under upon a new trial that the party supporting them broke hand manner in which it has just been let. It is down under the burden, and that the office which expressly made the duty of your board “to receive had for a little while appeared to give them honor, and consider all proposals for the publication of said was soon to leave them in their old position. Great reports which

may be made to them,” and it is but a men would have made the closing days of their admere piece of pettifogging to pretend that you are

ministration a time which they could look back upon not required to make known the fact that you con

with pleasure and pride. But some among those template awarding a new contract. The statute fur- officials have seen fit to treat it as a shipwrecked ther requires your honorable board to enter into the mariner is supposed to treat his sinking vessel, and contract for publishing these reports with the person tried to save all they could from the wreck. For men or persons who “shall agree to publish the said who hold themselves up as guardians of the treasury reports on terms the most advantageous to the pub- of the State, in the last hours to annul of their guarlic.” If that means any thing, it means that you dianship a contract, and substitute therefor one which have violated the law, and that your contract is is nearly three times as unfavorable to the fund they illegal.

assume to watch, evidences something else than a We regret, Mr. Comptroller, that you have been regard for the performance of the trust they have unweak enough to end a creditable public career by

dertaken. becoming a party to an act so discreditable, and we

The New York police commissioners at last yielded sincerely hope that, should you again be called upon

to the International society, and permitted them to to discharge a public trust, you will have strength parade on Sunday. This is right. There was, to be enough to resist all inducements to betray it.

sure, some show of legal authority for forbidding the We have thus addressed ourselves directly to the Sunday parade in the provision of the statute, that no comptroller, not from any ill will toward him, but

person shall travel on that day, unless in cases of because he has been the leading spirit in bring- charity or necessity, or in going to or returning from ing about and upholding this transaction. His asso some church or place of worship, within the distance ciates are far from excusable, but on him, we believe, of twenty miles, or in going for medical aid or for must rest the main responsibility.

medicines and returning, or in visiting the sick and Our objection to this matter is not that the contract returning, or in carrying the mail of the United States, has been awarded to Messrs. Banks. We object to or in going express by order of some public officer, or the manner in which it has been awarded; we object in removing his family or household furniture, when to the forestallment of the action of the incoming such removal was commenced on some other day." officers; we object to the violation of the law in 1 R. S. 676. The proposed parade came within not asking or advertising for proposals; we object to none of the exceptions, for a funeral procession, in the animus which has led to it; and we object, finally, honor of a man who died and was buried a month bebecause this contract will take, needlessly, ten thou fore, is not a case of charity or necessity, and it is

[ocr errors]

certainly none of the other cases named in the statute. as the English act, and known as the “Shipping ComBut the laws designed to enforce the observance of missioners' Bill.” This bill is now in the hands of the the Sabbath have been disregarded so long that they committee of commerce, who will soon report it to have become dead. The attempted suppression of the house. We trust that there will be no delay in the International parade was not because it was to its passage, as the State laws have long since been take place on Sunday, but because its doctrines are proved inadequate to accomplish any thing in the unpopular. We have no sympathy with those doc-matter. trines, but we believe every man has a right to hold such opinions as he sees fit, and to express those opin A national statute regulating marriage has been ions in the same manner that others are allowed to suggested as a remedy for the difficulties which arise express theirs. If a law shall be passed forbidding from the conflict in the statutes of different States Sunday parades in the streets of cities altogether, upon that subject. A national law, if a good one, making no exception in behalf of even religious pro-would, of course, mend the matter; but we do not cessions, we shall welcome it. But so long as one believe such a law is within the scope of federal legkind is tolerated, all should be.

islation, and it is hardly worth while to amend the

constitution so as to bring it there. Very many The beginning of the end has been reached in the things besides marriage ought to be regulated by a attempt to put down municipal corruption in New uniform law, but the disadvantages and annoyances York city. The leaders of the lately dominant fac- arising from diverse statutes had better be borne with tion, or “Ring," have been indicted for felony and

than to intrust too many matters to federal managecast into prison. A result such as this six months

ment. The States, too, are becoming more like each ago seemed hardly possible. At that time one of the other as the country grows older, in the matter of statnow imprisoned individuals was believed to have ute law. In fact, where a really good act is adopted in almost supreme control, not only in his city, but in one, it is very soon copied in the rest. If some of his State government. For the greater portion of

the older States will enact a law upon the subject of ten years he had dictated the official action of the marriage and divorce, which will secure to all intermetropolis, and for two years his policy had been ested all that ought to be, we are confident that its dominant at the capital. Law after law was repealed provisions will soon find their way into the statute because he willed, and new ones were enacted in

books of other commonwealths. order that he and his friends might hold their positions in public places by a more enduring tenure. He

It is a question whether very much official corrupseemed a very king, ruling in the midst of a republic. tion would not be prevented by uniformly paying Yet, on the 12th of July last, the weakness of that public officers salaries, instead of allowing them sees. political body, whose power had appeared invincible,

We have heretofore noticed the prevalence of the cuswas made manifest. With the police under their

tom of charging illegal fees. Limit the number of control, and probably the law on their side, they did office-holders, pay liberal salaries, and very many of not dare to put into force an order issued by them

the petty extortions which disgrace our public service selves. From that hour the scepter departed out of

would disappear. We have little hope, however, of their hands, and the events of December are only a beneficial change so long as official positions are natural sequences of those of the midsummer.

given as rewards for partisan services.

It is a humiliating fact that the rights of American

It is proposed, in Kentucky, to establish a system sailors are not as well cared for as those of English

of courts intermediate between the circuit and the sailors in American ports. Our own countrymen are subjected to extortion, robbery and brutal usage, and

court of last resort, something of the character of the

New York general term. The general term is an the law is powerless to help them, while the more

absolute necessity here, as it operates to relieve the fortunate foreigner is secure against every wrong.

highest appellate court from considerable business – The reason is, that the British government, with a

in fact, it shuts out some kinds of appeals altogether. humanity which has not heretofore been usual in

Were it not for the intervention of a general term, governments, cares for the material welfare of those

the other court would be certainly one of last resort, of its citizens who make a business of going down to the sea in ships, and is ever present everywhere of the time it appeared on its calendar.

for a case would not be reached within a generation with its power and watchfulness to protect them against injustice, while our own government leaves its seamen to the tender mercies of local authorities.

Another illustration of “Bleak House” is cited in It is understood, however, that a remedy for the evils

the English journals. A London court has had a case now complained of will be afforded by the enactment

before it for forty years, and every one but the defendby congress of a bill containing the same provisions ant has died since its commencement.

« AnteriorContinuar »