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If the wills acts required merely a writing, they would in all respects resemble the rule of the common law respecting incorporeal hereditaments, as regards the admissibility of extrinsic evidence. Sir James thought not; but he was wrong, although he would be right in supposing that the rules for admitting extrinsic written evidence in respect of wills are not the same as those that affect the admissibility of similar evidence where a document, inter vivos, is the subject of interpretation. He would be right, therefore, in respect to a particular proposition regarding the interpretation of wills of realty by extrinsic evidence; but he is wrong in generalizing his views so as to embrace wills of personalty, and he certainly was wholly unconscious of the reason why a testamentary document is one less within the range of extrinsic evidence than if the question related to a writing inter vivos. The reason of the distinction is to be found, not in the necessity for a writing, but in the requirement, also, of attestation.

It is to be regretted that Sir James Wigram did not adopt the time-honored distinction between patent and latent ambiguities as a basis for his propositions. Simplicity of classification is the highest philosophy, and, as doubtless every case where extrinsic evidence is admitted to explain a clause in a will is one of latent ambiguity, there is no reason to let drop so plain and simple a division. However, although Sir James thus nimbly bounded over the threshold, his subsequent inventory of affairs inside is not marked by any great want of care, if we remember the limited area he proposed to investigate. This was not the construction of wills generally, but their construction as affected by extrinsic evidence.

The primary or plain grammatical sense of the terms used by a testator will be modified, not only by the context, but also by the circumstances in which the testator was placed, and which he may be presumed to have in view. Shore v. Wilson, 9 Cl. & Fin. 565; Abbott v. Middleton, 7 H. L. C. 68. Of all such circumstances parol evidence may be adduced; but not of his intention, unless the evidence be merely to identify the subject or object of a devise or bequest. The testator's intention is, in all other cases, an inference of law, deduced from the will itself and from extrinsic evidence, but cannot be directly proved.

But though extrinsic evidence of the testator's intention is not admissible, except as regards the subject or object of a gift, yet Lord Campbell, in Collison v. Geeling, 4 Myl. & Cr. 66, on appeal 9 Cl. & Fin. 33, is reported to have said that he would "admit evidence to show the sense in which a testator used any particular expression."

The net rule, however, to be deduced from the cases on this point appears to be this: A testator cannot make an interpretation clause by parol for his will; but he may be so situated as to raise a presumption in the mind of the court that he intended to use certain words in an unusual sense. Of any circumstances tending to raise such a presumption, extrinsic evidence may be given. See Essington v. Vashorn, 3 Mer. 434. But the court will not receive direct evidence of his intention, as, for instance, that he verbally declared it was his intention to use certain terms in an usual sense. The testator's intention is thus like the light of day; when collected from the whole will, it becomes the key for interpreting | particular passage; but the intention itself, like the fount of light, cannot be directly looked at. The reader will, we hope, excuse our importing a little fancy into a subject that is in its own nature rather dry. Metaphor, indeed, is not often found in a legal disquisition, but the true poetic spirit-could we boast of it is never out of place. Peregrinantur rusticantur may be very truly applied to all literary embellishments. We fear, however, that our attempt to please by exotic samples of literature may not be as successful as our elucidation of points of law. We hope that in that forum we will be found impregnable. If so, doubtless the gentle reader will readily condone an occasional excursion into the regions of pure fancy. Certainly, we should be sorry that our knowledge of law would be estimated by any extra-judicial remarks of ours, with respect to the operations of the planets, or other phases of nature; or that our possible misconception of metaphorical beauty would be suffered to reflect upon our legal discernment.

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The mode in which extrinsic evidence of facts is indirectly made to prove a testator's intention is very well illustrated by Wild's Case, 6 Rep. 17. There it was held that a devise of real estate to A. and his children, A. having no children at the time of the devise, vests in A. an estate tail. See Wabb v. Byng, 2 K. & I. 669, note. See Buffan v. Bradford, 2 Atk. 220, as to what the time of the devise means, according to the rule in Wild's Case. Here the words of the will are insensible, with reference to extrinsic circumstances, if the word "children" be interpreted in its primary legal sense as a term of purchase. Ut res magis valeat, therefore, the term is interpreted to be a word of limitation, and A. takes an estate tail. But if the phrase be sensible with reference to extrinsic circumstances; in other words, if A. have children, then the phrase is construed according to its primary legal significance, and A. and his children take jointly; and if A. have no children living at the death of the testator, A. will take the whole interest. Mason v. Clarke, 17 B. 130.

The word "son," also, may be a word of limitation. Robinson v. Robinson, 1 Burr. 38. In that case the phrase was, "to such son as he should have lawfully to be begotten." The word "heir" in the singular

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

The rules for construing wills by means of extrinsic evidence may, then, be thus briefly summarized: The terms of the will in their primary sense, or as explained by the context, must be inapplicable to the circumstances of the testator, before verbal evidence of these circumstances can be received by the court. Secondly, direct verbal evidence of a testator's intention, and not merely of the circumstances of which he was placed, will be admitted only to identify the subject or object of a bequest, when the terms denoting the subject of the gift or of the donee are applicable to more subjects or donees than one.

As regards extrinsic evidence, the terms of the whole will must always control the meaning of a particular passage, except that, if technical terms of law be used in such passage, the context must be unusually strong to defeat the legal phrase of its primary, technical meaning. An amateur testamentary draftsman, therefore, will do well to avoid the use of legal phrases. They are never necessary in wills, and, if incorrectly applied, will do an infinity of mischief to the context. The courts seem to discountenance all pettifogging attempts to deprive the great mystic terms of the law of their pristine legal significance, and will gladly suffer them, like Sampson's foxes, to roam up and down the inheritance, to the terror of future amateur lawyers, and the great profit of experienced practitioners of the present day.

THE WHARTON TRIAL.

The Wharton trial must have reminded the senior portion of our readers of the famous Rugeley poisoning cases that occurred in the village of that name, in Staffordshire, England, about sixteen years ago. A certain William Palmer, M. D., of Rugeley, finding, perhaps, that he could make a patient no better, became a betting man himself. He was soon known in all sporting circles as the fast doctor from Rugeley. On the whole, he was not disliked by the gay society in which he moved, and, as far as regarded his betting transactions, a better blackleg could not be found. But rumor, which loves to attack thrones and principalities, does not spare even the frequenters of Tattersall's, and a report began to be circulated that all connected with Palmer, either by consanguinity, affinity or spiritual relationship, were remarkably shortlived. Further curiosity on the part of gossipers led to the discovery that the lives of his numerous deceased relatives were all insured by Palmer. He had literally "booked" them for eternity, the moment he gained their good wishes. Among this gloomy list of victims even his own mother seemed entitled to be included, as the circumstances of her death raised much suspicion. The newspapers took up the cry against Palmer, and they never lowered tone until they had hunted their game to death. Prejudice was

a special statute was passed by parliament constituting a central criminal court in London, in which tribunal any cause of a criminal nature might be tried, for removing which from its proper venue there might appear to be sufficient reason.

Palmer was tried and convicted in this court of the murder of a certain John Parsons Cook, who had been his latest victim. This Cook and Palmer were intimate sporting friends, and the evidence showed that the doctor was in the habit of giving his client frequent doses of medicine, which never agreed with the stomach of Cook. So much quackery, attended with such suspicious results, and administered by that very unsuccessful practitioner, Dr. Palmer, led to an analysis of Cook's stomach and its contents, as, also, of his whole remains. Antimony and some other deleterious substances were found in the intestines, but not in quantities sufficient to cause death. No strychnine whatever was found in the remains, and yet the theory of the prosecution, and of the medical evidence on which it was founded, was that Palmer had just administered that precise quantity of the strychnine as sufficed to destroy life, but to leave no trace of its existence behind, like the sting of a certain class of wasps, which are said to perish after once infusing their virus.

This theory was advocated, on the Palmer trial, by Dr. Taylor, the eminent analyst and chemist. His testimony swayed the minds of the jury, and Palmer was found guilty and executed.

It seems abundantly clear that there were ample grounds for doubting Palmer's guilt, in Cook's case, and that the benefit of this doubt ought to have been given to the prisoner, but so many charges of a similar nature had poisoned the atmosphere of public opinion against him, that he was really found guilty rather on hearsay evidence of general bad character than on legal testimony of the specific charges adduced against him. Public opinion, however, from that time to this has indorsed the verdict of the jury. Society, in fact, is resolved to show no mercy to secret murders involving premeditation and a use of means that are not easily discernable.

It is impossible for us to offer any opinion as to Palmer's actual guilt. The evidence was strong, but not conclusive, in Cook's particular case. It was just such an array of circumstantial evidence that a jury would believe that the accused committed the crime, but yet would not have that plenary chain of legal evidence and circumstances that would render the discuarge of their duty a matter of pleasure. Cases such as these certainly are ones in which a jury should act with all the alertness of a vigilance committee. At the same time, they should take care not to do publicly what the culprit is accused of doing secretly.

A rash verdict in one case only leads to the acquittal of the next two or three notorious murderers put on their trial. On the other hand, when a jury gives

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a verdict in a case of this kind, it is absolutely necessary that the clemency of the governor be never extended to the criminal. Society must be protected against the commission of such crimes - else no one would be secure. The evidence of experts, however, in these cases, ought not to be swallowed by juries without much caution. Experts in patent and chemical cases contradict one another too readily to be entitled, on the whole, to unreserved confidence. Their evidence is valuable, but the common sense of the jury should strain and test it narrowly. Their practical sagacity is the anchor both of society and the accused.

THE COURT OF APPEALS REPORTS.

THE NEW CONTRACT FOR PUBLISHERS.

It has sometimes occurred that public officers and men in high stations, after a most uneventful and ordinary career, have suddenly, as their terms were about to close, astonished the world by exhibiting a power of invention, a choice of expedients, and a depth of resource worthy of Talleyrand. Such an exhibition has just been made by some of the officers of this State.

It will be remembered that nearly three years ago the contract for publishing the court of appeals reports was given to Banks Brothers, of this city, they agreeing, under a penalty of $5,000 in case of a breach, to publish and sell to the public the reports, at sixty and eighty cents a volume, according to size. This contract they have persistently and openly violated from the beginning, by charging for each volume $2.50. Last winter a clause was smuggled into the appropriation bill, authorizing the secretary of State to continue the contract for five years. But the thing was so patent a fraud that the secretary could not be induced to become a party to it. Some new expedient must be resorted to, to keep the monopoly in the hands of these honorable and influential members of the Albany "Ring." The contract was to expire by lapse of time in March next, and a new contracting board would most likely require Messrs. Banks to take their chances with other bidders, and to adhere to their contract if it was awarded to them.

But the present contracting board, under the joint manipulation of Banks and Comptroller Nichols, has shown itself equal to the occasion, and determined to forestall the action of the incoming officers in the interest of Banks Brothers. Accordingly, on Thursday of last week it met in secret session, canceled the existing contract under which the publishers were to receive sixty and eighty cents per volume, and made a new contract to continue three years from date, and under which the Messrs. Banks were to receive $2.25 per volume. No notice was given of the proposed action of the board to the other publishers in Albany and New York. Nor were any proposals or bids for the work asked or desired.

It has been the uniform custom heretofore to advertise for proposals for publishing these reports before letting the contract, and such a course is required by the intent, if not by the strict letter of the law. Section 2 of chapter 224, Laws 1848, provides that "before entering into said contract, it shall be the duty of said reporter, secretary of state and comptroller, to receive and consider all proposals for the publication of said reports which may be made to them." But such a course, in the present case, would have defeated the object of the board. It being a sort of coup de main, it was thought that the ordinary rules of honorable official conduct and of law did not apply.

For some reasons of more interest to the comptroller 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 of his clear, unclouded faculties in attempting to prove that he and his coadjutors have done nothing but what pure officials and honorable men ought to have done. But, in listening to his ". reasons" one cannot help being painfully conscious that he is trying quite as hard to satisfy his own conscience as the judgment of his hearer. "Without firmness enough to avoid a dishonorable action, he has feeling enough to be ashamed of it."

But the comptroller is guilty of a double wrong, in first doing an unworthy thing, and then offering a direct insult to our understanding, by the weakness of his reasons for so doing. These reasons are briefly as follows: 1. Mr. Banks had a claim upon the publication of these reports. 2. We have saved the profession twenty-five cents on a volume. 3. The law don't require us to advertise for proposals.

And do you really believe, Mr. Comptroller, that, because a man has persistently violated a contract which he has made with you, that he has a claim upon you to renew it? If such is your opinion, it is, happily, not shared by the great majority of men. If you had taken the trouble to consult your own judgment before assigning such a reason, you would have discovered that it did little honor to your discretion. So far as the public is aware, the only claim that Mr. Banks has upon you is that resulting from your peculiar political relations, which ought never to influence an honorable "servant of the people," as you delight to term yourself, in the discharge of his public trust. What private claims Mr. Banks may have upon you, of course, it is impossible for the public to know.

Your second reason, that you have saved the profession twenty-five cents on a volume, is a mere quibble. Three years ago the contract was let, after advertising for proposals, at about one-third of the present rate. If you, Mr. Comptroller, are so tender of the pockets of the profession, why did you not see to it, that that contract, to which you were a party, was enforced? But, aside from that, you know now by positive assurance from responsible parties. You knew perfectly well when this new contract was made

that more than one equally honorable and equally responsible firm in this city would take the contract at a price less than half that given to Banks, and do the work better, and, what is more, fulfill faithfully the agreement. If you do not, or did not, know this, we tell you now, and will make our words good, that there are at least two of the leading publishing firms in this city that will take the contract, fortified by any safeguards for its observance that you or your board can devise, at one dollar a copy, and will publish a better report, so far as its mechanical execution is concerned, than Messrs. Banks have ever done at $2.50 a volume. But you and your board were not ignorant of this fact, and it was because you knew it that you determined to proceed in secret, and to forestall the action of your predecessors.

Your third reason, that the law does not require you to advertise for proposals, is but a plausible pretense. You take delight in informing those with whom you have contentions that you are a lawyer, and know all about it." If you are a lawyer at all worthy of the name, and we presume you are, you knew that it was not the intention of the statute that this contract should be let in the clandestine and underhand manner in which it has just been let. It is expressly made the duty of your board "to receive and consider all proposals for the publication of said reports which may be made to them," and it is but a mere piece of pettifogging to pretend that you are not required to make known the fact that you contemplate awarding a new contract. The statute further requires your honorable board to enter into the contract for publishing these reports with the person or persons who "shall agree to publish the said reports on terms the most advantageous to the public." If that means any thing, it means that you have violated the law, and that your contract is illegal.

We regret, Mr. Comptroller, that you have been weak enough to end a creditable public career by becoming a party to an act so discreditable, and we sincerely hope that, should you again be called upon to discharge a public trust, you will have strength enough to resist all inducements to betray it.

We have thus addressed ourselves directly to the comptroller, not from any ill will toward him, but because he has been the leading spirit in bringing about and upholding this transaction. His associates are far from excusable, but on him, we believe, must rest the main responsibility.

Our objection to this matter is not that the contract has been awarded to Messrs. Banks. We object to the manner in which it has been awarded; we object to the forestallment of the action of the incoming officers; we object to the violation of the law in not asking or advertising for proposals; we object to the animus which has led to it; and we object, finally, because this contract will take, needlessly, ten thou

sand dollars every year from the pockets of the profession of this State and transfer it to the pockets of the publishers.

CURRENT TOPICS.

If there is any thing in human action that indicates a noble nature, it is honorable conduct under adverse circumstances. In prosperous times, when each successive day adds to the position or the opulence of an individual, it is easy for him to display those traits of character which he knows the world to esteem meritorious. When the hum of fortune is passed, and advancing life brings no increase in wealth or standing, it may be pleasant, as well as politic, to maintain the old standard of conduct. But in the day of disaster, when substantial recompense does appear to not follow honest deeds, and he who bears himself like a man can only be sure of the reward of an approving conscience, the estimate such one places upon upright dealing is made manifest. Certain of our State officials, who had been shrewd enough to put themselves where the success of the principles they pretended to advocate must lift them into public place, discovered upon a new trial that the party supporting them broke down under the burden, and that the office which had for a little while appeared to give them honor, was soon to leave them in their old position. Great men would have made the closing days of their administration a time which they could look back upon with pleasure and pride. But some among those officials have seen fit to treat it as a shipwrecked mariner is supposed to treat his sinking vessel, and tried to save all they could from the wreck. For men who hold themselves up as guardians of the treasury of the State, in the last hours to annul of their guardianship a contract, and substitute therefor one which is nearly three times as unfavorable to the fund they assume to watch, evidences something else than a regard for the performance of the trust they have un

dertaken.

The New York police commissioners at last yielded to the International society, and permitted them to parade on Sunday. This is right. There was, to be sure, some show of legal authority for forbidding the Sunday parade in the provision of the statute, that no person "shall travel on that day, unless in cases of charity or necessity, or in going to or returning from some church or place of worship, within the distance of twenty miles, or in going for medical aid or for medicines and returning, or in visiting the sick and returning, or in carrying the mail of the United States, or in going express by order of some public officer, or in removing his family or household furniture, when such removal was commenced on some other day." 1 R. S. 676. The proposed parade came within none of the exceptions, for a funeral procession, in honor of a man who died and was buried a month be fore, is not a case of charity or necessity, and it is

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certainly none of the other cases named in the statute. But the laws designed to enforce the observance of the Sabbath have been disregarded so long that they have become dead. The attempted suppression of the International parade was not because it was to take place on Sunday, but because its doctrines are unpopular. We have no sympathy with those doctrines, but we believe every man has a right to hold such opinions as he sees fit, and to express those opinions in the same manner that others are allowed to express theirs. If a law shall be passed forbidding Sunday parades in the streets of cities altogether, making no exception in behalf of even religious processions, we shall welcome it. But so long as one kind is tolerated, all should be.

The beginning of the end has been reached in the attempt to put down municipal corruption in New York city. The leaders of the lately dominant faction, or "Ring," have been indicted for felony and cast into prison. A result such as this six months ago seemed hardly possible. At that time one of the now imprisoned individuals was believed to have almost supreme control, not only in his city, but in his State government. For the greater portion of ten years he had dictated the official action of the metropolis, and for two years his policy had been dominant at the capital. Law after law was repealed because he willed, and new ones were enacted in order that he and his friends might hold their positions in public places by a more enduring tenure. He seemed a very king, ruling in the midst of a republic. Yet, on the 12th of July last, the weakness of that political body, whose power had appeared invincible, was made manifest. With the police under their control, and probably the law on their side, they did not dare to put into force an order issued by themselves. From that hour the scepter departed out of their hands, and the events of December are only natural sequences of those of the midsummer.

It is a humiliating fact that the rights of American sailors are not as well cared for as those of English sailors in American ports. Our own countrymen are subjected to extortion, robbery and brutal usage, and the law is powerless to help them, while the more fortunate foreigner is secure against every wrong. The reason is, that the British government, with a humanity which has not heretofore been usual in governments, cares for the material welfare of those of its citizens who make a business of going down to the sea in ships, and is ever present everywhere with its power and watchfulness to protect them against injustice, while our own government leaves its seamen to the tender mercies of local authorities. It is understood, however, that a remedy for the evils now complained of will be afforded by the enactment by congress of a bill containing the same provisions

as the English act, and known as the "Shipping Commissioners' Bill." This bill is now in the hands of the committee of commerce, who will soon report it to the house. We trust that there will be no delay in its passage, as the State laws have long since been proved inadequate to accomplish any thing in the

matter.

A national statute regulating marriage has been suggested as a remedy for the difficulties which arise from the conflict in the statutes of different States upon that subject. A national law, if a good one, would, of course, mend the matter; but we do not believe such a law is within the scope of federal legislation, and it is hardly worth while to amend the constitution so as to bring it there. Very many things besides marriage ought to be regulated by a uniform law, but the disadvantages and annoyances arising from diverse statutes had better be borne with than to intrust too many matters to federal manageThe States, too, are becoming more like each other as the country grows older, in the matter of statute law. In fact, where a really good act is adopted in one, it is very soon copied in the rest. If some of the older States will enact a law upon the subject of marriage and divorce, which will secure to all interested all that ought to be, we are confident that its provisions will soon find their way into the statute books of other commonwealths.

ment.

It is a question whether very much official corruption would not be prevented by uniformly paying public officers salaries, instead of allowing them fees. We have heretofore noticed the prevalence of the custom of charging illegal fees. Limit the number of office-holders, pay liberal salaries, and very many of the petty extortions which disgrace our public service would disappear. We have little hope, however, of a beneficial change so long as official positions are given as rewards for partisan services.

It is proposed, in Kentucky, to establish a system of courts intermediate between the circuit and the court of last resort, something of the character of the New York general term. The general term is an absolute necessity here, as it operates to relieve the highest appellate court from considerable business — in fact, it shuts out some kinds of appeals altogether. Were it not for the intervention of a general term, the other court would be certainly one of last resort, for a case would not be reached within a generation of the time it appeared on its calendar.

Another illustration of "Bleak House" is cited in the English journals. A London court has had a case before it for forty years, and every one but the defendant has died since its commencement.

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