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was a politician, and the honorary and pecuniary rewards of our profession were trifling in his sight. It is also absurd for his admirers to deny that he was ambitious. He was one of the most ambitious men that ever lived. More than a generation ago one of his intimate friends told the writer of these lines that Mr. Tilden was the most ambitious man he ever knew, and that Mr. Tilden even then had a serene confidence, and did not scruple to prophecy, that he would be governor, United States senator and presidenta prognostication at which our informant sceptically smiled, but which was not so far out of the way as it then seemed. Mr. Tilden's best exhibition was as governor, in which office he performed meritorious service. Had not his health failed he would unquestionably have been nominated again for the presidency, and would have proved a formidable candidate as he did when he ran, and as many think was elected. He was a sagacious and unrivalled party manager. We should always be skeptical of a man's claims to "statesmanship," who died leaving five millions of money. Great statesmen have generally died poor. We do not admire the methods in which he is reputed to have made his large fortune, but we do admire the way in which he disposed of it at his death. He was fond of books and was a good scholar, and yet a bookseller in New York tells us that he once pleaded the statute of limitations to an account of his for some of his books. Of course we should want to hear Mr. Tilden's side of this story, as well as of the cipher despatches business, before accepting them in their worst appearance, but we have a strong impression that however philanthropic he could afford to be at death he was engaged during his life in taking the very best care of himself and promoting his own interests. Which, after all, is what we are nearly all engaged in, but we do not all expect to be discovered to be saints when we go hence. Mr. Tilden has left no writings to testify to future generations of the analytical skill, the patience and the sagacity which have been so much and so deservedly admired in this.

NOTES OF CASES.

N People v. Fonda, Mich. Sup. Ct., July 15, 1886,

a National bank was not punishable by a State court. The court says: "Section 711 of chapter 12 of the Revised Statutes of the United States provides that the jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned shall be exclusive of the courts of the several States. First, of all crimes and offenses cognizable under the authority of the United States.' The other clauses of the section need not be given, as none of them relate to criminal jurisdiction. Congress, by law, created the National banking system, and provided for their internal workings, and prescribed a punishment for the offenses charged against the respondent. Rev.

Stat. U. S., tit. 62. It seems to me, clearly, the case is one falling within the paragraph of section 711 above quoted, and that by the Federal law itself the jurisdiction of the State is expressly excluded. Chancellor Kent in his commentaries, in concluding his discussion of the matter, says: 'In judicial matters the concurrent jurisdiction of the State tribunals depends altogether upon the pleasure of Congress, and may be revoked and extinguished whenever they think proper in every case in which the subject-matters can constitutionally be made cognizable in Federal courts, and that without an express provision to the contrary, the State courts will retain a concurrent jurisdiction in all cases where they had jurisdiction originally over the subject-matters.' 1 Kent Comm. 400. And there are other authorities to the same effect: Delafield v. State, 2 Hill. 159; Houston v. Moore, 5 Wheat. 22; Harlan v. People, 1 Doug. (Mich.) 207; Snoddy v. | Howard, 51 Ind. 411; Hendrick's case, 5 Leigh, 713; Hall's case, 97 Mass. 570. It is also held that in cases to which the jurisdiction of the State courts might extend, in the absence of any action by Congress, where Congress does assume jurisdiction, its control then becomes paramount and exclusive. The Moses Taylor, 4 Wall. 411; Ex parte Bridges, 2 Woods, 428; Ex parte Houghton, 7 Fed. Rep. 657; Brown v. United States, 14 Amer. Law Reg. 566; Sturges v. Crowninshield, 4 Wheat. 139; Prigg v. Commonwealth, 16 Pet. 539; Martin v. Hunter, 1 Wheat. 304; Houston v. Moore, 5 id. 1; State v. Pike, 15 N. H. 83; State v. Adams, 4 Black f. 146; Commonwealth v. Fuller, 8 Metc. 313; Commonwealth v. Tenney, 97 Mass. 50; Commonwealth v. Felton, 101 id. 204; People v. Kelly, 38 Cal. 145; 3 Story Const. Law, 623. Commonwealth v. Felton states the conclusion of the matter in that case in language quite applicable to the present. The respondent was charged in that case with being an accessory to an embezzlement by an officer of a National bank. In delivering the opinion of the court Mr. Justice Ames said: "The difficulty in the way of holding the defendant upon the present indictment is that the act of Congress has taken the crime of the principal out of our jurisdiction, and our courts cannot deal with him upon that charge.'" See also Commonwealth v. Ketner, 92 Penn. St. 372; S. C., 37 Am. Rep. 692; State v. Tuller, 34 Conn. 295.

In Applegarth v. Robertson, Maryland Court of Appeals, June 23, 1886, 6 East. Rep. 192, it was held that in an action to recover the purchase-price of a house the vendee may set up as a defense the defective condition of the gable wall, and also sue to recover damages sustained by reason of misrepresentations in regard to the wall. The court said: "But then again it was pressed in argument, and strongly too, that the appellee was precluded from setting up the defective condition of the wall as a defense in this suit, because he had sued Cone to recover damages on account of the same. In other words, it was said he could not, in an action to re

cover the purchase-money, set up as a defense the tual taking, and it therefore resulted that an acdefective condition of the wall, and at the same quittal of the burglary with intent to steal constitime sue Cone for damages alleged to have been tuted no bar to a prosecution for the actual theft. sustained by reason of his misrepresentations in re- Without the intention to commit a felony, the mere gard to the wall. But this position is not, we think, ❘ fact of breaking would not at common law constitenable. The appellee had paid the entire purchase- tute a burglary; and where the intent to steal is money, except the note for $250, to recover which charged, and the party acquitted, it would seem this suit was brought, and the proof shows that he that a subsequent indictment for grand larceny, had expended $1,000 at least in rebuilding the with the same facts developed on the trial, would wall. He had the right therefore not only to sue be placing the accused in jeopardy the second time Cone to recover damages which he sustained by for the same offense. The weight of authority, we reason of Cone's misrepresentation, but also to set are aware, is adverse to such a view of the question, up the defective and unsafe condition of the wall as but the whole reason and philosophy of the law, as a defense to the suit brought on the note to recover well as justice to the accused, requires a different the balance of the purchase. This we understand ruling. Mr. Bishop, in alluding to the decisions on this class of cases, takes occasion to say that 'on principle, we may question whether they do not press more heavily against defendants than the humane policy of our criminal jurisprudence justifies.' 1 Bish. Crim. Law, 1064. The dissenting opinion in the case of Wilson v. State, 24 Conn. 57, lays down the correct rule, viz.: 'When a criminal act has been committed, every part of which may be alleged in a single count, and proved under it, the act cannot be split into several distinct crimes, and a separate indictment sustained on each; and whenever there has been a conviction for one part it will operate as a bar to any subsequent proceedings as to the residue.' In a note to this dissent in 1 Bish. Crim. Law, it is said: 'It would be a very bold thing to say, that leaving out of the account what has been adjudged by the courts, the weight of reason is not clearly with the dissenting opinion.' The prosecutor may elect whether his indictment shall be for burglary or grand larceny, but he cannot make two offenses out of the one, and when indicted and tried for either the bar becomes complete as to both the burglary and larceny. Georgia it has been held that a jeopardy on one indictment will bar a second 'whenever the proof shows the second case to be the same transaction with the first.' The intent to steal may be shown by proof establishing the actual theft, and when the Commonwealth has made out the case of burglary in this way it is a novel ruling, although sustained by the weight of authority, to hold that two convictions may be had for offenses growing out of the same transaction. It has been held that where one steals two pigs by driving them off from the owner at the same time he may be convicted of larceny for stealing the one pig, and then again convicted for stealing the other. This is not the rule in Kentucky in Fisher v. Commonwealth, 1 Bush, 211. The accused in the same act, and with like intent, took a horse, wagon and harness from H. The indictment was for stealing the horse, another indictment for stealing the wagon and harness, and why there was not a third indictment for stealing the harness does not appear — perhaps the harness was in the wagon. On the trial for stealing the horse the accused was acquitted, and this was held to be a bar to the indictment for stealing the wagon and harness. Mr. Bishop says, and this is the true doc

to be the rule laid down in Mondel v. Steele, 8 M. & W. 858, Rigge v. Burbidge, 15 id. 598. In Mondel v. Steele an action was brought by the buyer to recover damages for breach of an express warranty in the quality of a ship built under a written contract. The defendant pleaded that the buyer had already recovered damages by setting up the breach of warranty in a suit brought by the defendant to recover the price of the ship; and this plea was held bad on demurrer. Baron Parke said: 'It must however be considered that in these cases of goods sold and delivered with warranty, and work and labor as well as the case of goods agreed to be supplied according to contract, the rule which has been found so convenient is established; and it is competent for the defendant in all those, not to set off, a proceeding in the nature of a cross-action, the amount of damages which he has sustained by breach of the contract, but simply to defend himself by showing how much less the subject-matter of the action was worth by reason of the breach of contract, and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract, and is precluded from recovering to that extent in another action, but no more.' This, Mr. Benjamin says, is the leading case now always cited for establishing, first, that the buyer may set up the defective quality of the warranted article in diminution of price; and secondly, that he must bring a cross-action if he desires to claim special or consequential damages, which action is not barred by reason of his having obtained a diminution of price in a previous action. Benj. Sales, 893.

In Triplett v. Commonwealth, Kentucky Court of Appeals, June 5, 1886, it was held that an acquittal under an indictment for burglary in breaking and entering a dwelling with intent to steal is a bar to a subsequent indictment for grand larceny, when the alleged taking was connected with, and a part of the same transaction constituting the alleged burglary at the same place, and on the same occasion. The court said: "At common law, in an indictment for burglary, a count might be added for the larceny where there had been an ac

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SINCE

NCE completing my article on the above subject, I have discovered a recent case in the Massachusetts Supreme Court on the subject of liability of life tenants to make good premiums paid on investment of moneys in which another has a remainder interest. The question is so important that I deem it of interest to the profession to refer to the case somewhat particularly. The case is New England Trust Co. v. Eaton, and is reported in 25 Am. Law Reg. at p. 162. The question presented was very clearly stated by Devens, J., who wrote the prevailing opinion: "This is an appeal from a decree affirming a decree of the Probate Court by which the account of the New England Trust Co., a trustee holding a fund the income of which was payable to a tenant for life with remainder over, was disallowed. The system which had been pursued by the trustee with reference to the investments which it had made in bonds and other promises to pay of the United States government or of municipal or railroad corporations, due on a certain day for which premiums had been paid, was to ascertain by tables in use among baukers and broker what was in fact the net income arising from these promises, considering the premium actually paid by the investing trustee which would not be repaid at the maturity of the bond, the rate of interest, the date of payment of the security, and to pay over this net income to the life tenant; the difference between this net income and the actual rate of interest as received going to a fund which at the date of the maturity of the promise would leave the original capital intact. The decree appealed from directed the trustee to pay to the life tenant the sums thus retained for the purpose of being returned to capital."

The Supreme Court on appeal reversed this decree, holding that the action of the trustee was correct. Three of the most eminent members of the bench however dissented. The dissent however of Judge Holmes who wrote the only dissenting opinion is not in the judgment of the writer sufficiently vigorous or far reaching. On the very threshold of his argument he says: "If the opinion of the majority rests on the ground that so far as appears the trustees might have made their investments with the intent to keep them until the trust expired or the bonds matured, and in the exercise of its discretion as a business manager, in view of the particular circumstances of the cases, thought it necessary to retain a fund in suspense against a probable loss of premium, speaking for myself alone I should have been disposed to acquiesce in that opinion." The case states that the chief justice and Mr. Justice Allen concurred in the views expressed by Judge Holmes, but it does not appear that they qualified their dissent as he did, and the fact that he says, "speaking for myself alone," would seem to indicate that their dissent was more radical. The only difference between the prevailing opinion and the dissenting opinion is that the former makes the deduction from the interest or income absolute and the latter contingent upon loss, Judge Devens assents that the

income should be regularly reduced each year by such an amount as will at the maturity of the securities make good the premiums paid; that it is immaterial whether there is any loss of premiums; that if the life tenant after having been compelled to pay out of his income a large sum to make good the premiums dies, and the securities are sold for the amount which was paid for them, or even at a higher premium, the remainderman is nevertheless entitled to the amount which has been deducted from the life teuant's share to make good a loss which has never occurred, and the life tenant is compelled by a rule of law, which should be founded in justice, to donate to the remainderman out of his own income a portion thereof that the profit, which the remainderman makes by the sale of the securities at an enhanced premium, may be further increased at the expense of the life tenant, and this injustice is to be perpetrated, because forsooth the money was invested at a premium. A weighty reason to support such a monstrous perversion of justice. On the other hand Judge Holmes would have a deduction made from the interest to make good any deficit in the principal sum invested by reason of the payment of the securities at maturity, or their sale before that time at or below par, or for a smaller premium than that which was originally paid for them; but in case there should be no loss, he would have this reserve fund paid over to the life tenant or his representatives. Now let us consider the reasoning by which Judge Devens attempts to support the judgment of the majority of the bench. He says: "That which is really income from a bond purchased at a price above par, say $120 and payable in ten years, is not the amount received in interest annually, but that amount deducting therefrom the sum necessary to restore at the end of the ten years the $20 premium. No prudent man would treat as income from his property the whole amount received when there was thus to be a diminution of his principal amounting at the end of ten years to this premium, and steadily tending to this during the entire period. To deal with interest thus received, as income purely, would to the extent of the premium exhaust the capital. The premizm paid is no more than an advance from capital which the remainderman is entitled to have repaid if he is entitled to receive the capital intact."

The fallacy of this argument is in its ignoring the fact that there are two different persons interested in the same investment. But first let us consider another of the many fallacies in which this opinion abounds. It is true that no one regards as net income the actual interest received on securities purchased at a premium. But suppose he sells the bonds at the same premium as that for which he bought them or at a greater premium, will any one deny that the interest actually received truly represents his net income from the investment? And yet Judge Devens assents that in such a case the life tenant must lose the amount deducted from the interest received to make good a loss which never occurs. If the remainderman receives the full premium, and so loses nothing by the investment the interest actually received by the life tenant constitutes the real net income from the investment just as truly as though the life tenant and remainderman had been one person, and yet Judge Devens asserts that the life tenant shall not be paid the fund deducted from the interest, or in other words, that he shall not be paid the net income to which he is entitled, but something less. It is right here that Judge Holmes expresses his dissent. But it requires no argument to expose the sophistry and utter puerility of a doctrine which justifies the deduction from a life tenant of annual interest of a certain sum, on the theory that the interest is more than the net income, and then continues to withhold from the life tenant

the sum so deducted after it is shown beyond ques-curity will be due in five or fifty years, as his interest tion that the interest received is not more than the

net income, but does in fact constitute the net income and is not a penny in excess of it. Now let us recur to the other point. Judge Devens says in effect: The interest received is not net income, because the premium must be taken into consideration. Where life tenant and remainderman are one person, it is clear that if the securities are paid or sold for a smaller premium, the holder loses so much out of his gross income, and the difference represents his net income. But where they are two distinct persons, each of the two must bear a share of the loss, and the question to be settled on principle is, in what proportion ought the loss to be borne?

terminates with his life, and the difficulty of securing good investments is not so great that the life tenant should have a very deep interest in the permanency of the investmment. And if it be thought that he does derive some slight benefit from it, still he ought not to be required to make good the whole premium paid on that account, or any part of it, as he necessarily loses as much by the loss of the interest on the premium paid, as he gains by the permanency of the security; and the remainderman, whose estate is absolute, may by reason of the life tenant's death shortly after the investment, be the only person benefited by the permanency of the security. It is manifest that it would be extremely unjust arbitrarily to charge a life tenant with any more loss on account of the permanency of a security than that which he is certain to sustain by the loss of interest on that portion of the premium which is occasioned by the permanency of the investment. So whether it be admitted that the rate of interest alone, or the rate of interest combined with the duration of the investment, controls the amount of premium, the inference that the life tenant should deduct from his income a sum to make good the possible loss of principal is not a legitimate inference. But these two factors, rate of interest and permanency of investment, are not the only elements which go to make up the amount of premium. The question of the safety of the investment regulates in part, nay largely regulates, the premium paid. This is apparent when we remember that government three per cent bonds are at a premium, while money is loaned on bond and mortgage at par for five or six per cent. Surely a higher rate of interest and the difference in the permanency of the security do not account for the premium paid on the purchase of government bonds. But Judge Devens reasons in this way: He says that trustees are bound to make absolutely safe investments, and that if there are two securities in which they are authorized to invest, and one is at par and the other at a premium, the other must be at a premium, because of a difference in the rate of interest, and not because of a difference in the safety of the investment, for the simple reason that there cannot be any such difference, as they must both be absolutely safe. Admit the correctness of the major premise, and the syllogism flows on to the learned judge's conclusion with irresistible force. But that premise is not sound. There is no rule of law requiring an investment by a trustee to be absolutely safe.

The whole trend of the argument of Judge Devens is to the effect that the rate of interest is the only factor which affects the premium paid, and that the fact that a security is at a premium conclusively shows that the rate is higher than the market rate, and that such being the case, the premium paid is paid for the exclusive benefit of the life tenant, and he alone should make good the loss. In what way does the premium paid benefit the life tenant? Conceding for the purpose of the argument that the assumption, which has no foundation in fact, that the premium paid incontrovertibly establishes the fact that the rate of interest payable on the security is above the market rate, how is the life tenant benefited by the investment? It is just as fair an assumption, nay a more legitimate assumption, because it has its foundation in reason, and is supported by daily experience, that the premium paid will be and is commensurate with the rate of interest which the security bears, and that the premium will be usually, if not invariably, so high that the net interest received from the investment, the interest being payable on the par value of the security, and the sum on which the net interest is to be computed being the sum paid for the par value and the premium in addition, will be after all only the market rate. To illustrate, suppose that the market rate of interest is four per cent. It is fair to assume, if the premium is regulated, as Judge Devens asserts, solely by the rate of interest above the market rate, that a premium on a six per cent security will be fifty per cent. The net amount of interest received by the life tenant on the principal sum invested would be just the same as if the money had been invested in a four per cent security at par, namely, four per cent. The writer fails to see how the life tenant is benefited by such an investment, more than he would have been He is somewhat restricted as to the class of securities benefited by the investment in four per cent securin which he may invest, but if he keeps within the ities at par. It will not do for Judge Devens to say limits of these restrictions, he is bound to exercise that the rate of interest over the market rate and the only reasonable care and prudence. All the authoripremium are not commensurate. The very founda- ties hold that he may invest on bond and mortgage, tion on which he reasons is fatal to such an assertion. and that the investment is a proper one, if prudent, It is extremely illogical to lay down, as the basis of an even though it result in a loss. King v. Talbot, 40 N.Y. argument, the proposition that the premium is regu- 76; Mills v. Hoffman, 26 Hun, 594; 2 Kent Com. 416, lated in all cases solely by the excess of interest over note b; Halsted v. Meeker, 3 C. E. Green, 136; Laththe market rate, and then brush aside this proposition, when it is found to be in the way of a predetermined rop v. Smalley, 8 id. 192; Hemphill's Appeal, 18 Penn. conclusion, and assert that the premium and excess of St. 303; Thomson's Appeal, 43 id. 431; French v. Carinterest are not commensurate. The trouble with the rier, 47 N. H. 88; Barney v. Parsons, 54 Vt. 623; Murlearned judge's argument is that he is forced to state ray v. Flinvur, 2 Md. Ch. 418; Smyth v. Burns, 25 Miss. 422; Snelling v. McCreary, 14 Rich. Eq. 291; Perry his major proposition too broadly in order to justify Trusts, § 458. Many of the authorities lay down a his deduction, or rather to give it the semblance of justification. He then qualifies it, and states that the The right to invest in this class of securities (bond premium is governed by the rate of interest and the and mortgage) where due care is used, and the exemptime the security has to run before maturity. This tion of the trustee from any liability in case of loss, modification of his major premise will not render his provided he exercises ordinary prudence, are concludeduction any more souud. So far as the premium is sive against the argument that the safety of the secu

more literal rule.

controlled or affected by the time the security has to run before it is payable, the life tenant should not be rity does not play any part in fixing the premium paid. On the contrary, they establish beyond cavil or possirequired to make good the premium, because it is ability of refutation that the safety of the investment

matter of but little importance to him whether the se

is one of the chief elements in determining the pre

mium to be paid. Does a trustee invest money on bond and mortgage at six per cent at par because the rate of interest is simply the market rate, and invest other money in three per cent government bonds at a high premium, because the rate of interest is above the market rate? On what ground can this great difference in the two classes of investments be accounted for? Simply on the ground that one is attended with more or less risk and the other is absolutely safe. In this connection it is important to quote from the opinion of Judge Holmes, who rigorously assails so rank a heresy as that enunciated by Judge Devens. Speaking of the opinion of the majority, and the reasoning by which Judge Devens essays to support that opinion, he says: "Shortly stated, I understand that reasoning to be this: that if a bond is bought at a premium, it must be assumed that the premium is paid, for the single reason that the rate of interest on the bond is higher than the market rate, because it must be assumed that the investment is absolutely safe. * * * I repeat what was said in Hemenway v. Hemenway, that I do not see how we can start with the assumption that all proper investments are absolutely safe when the leading case in this State is to the very point that an investment may be unsafe and yet justifiable. Lowell v. Minot, 20 Pick. 116. But the assumption appears to me to be inconsistent with facts which we must notice, and to lead to the conclusion not yet mentioned, which we could not accept. Within a few years the first mortgage four per cent bonds of a flourishing railroad have sold at 85, while at the same time United States four per cents stood at 120 or more, and city four per cents of a high rank stood at about par. The differences were not to be accounted for by the difference of time which the bonds had to run, or by exemption from taxation. I should be surprised to learn that either bond was not a proper investment. If they all were proper investments, the difference in price could not be referred to difference in interest."

In this sound opinion the chief justice and Mr. Justice Charles Allen concurred. To recapitulate, the writer asserts:

1st. That so far as premiums are occasioned by an excess of interest above the market rate, the life tenant should not be called upon to make good the loss, because the premium which results from this cause will be commensurate with the excess of interest, and the investment will therefore net the life tenant no greater income than the same security at par, and he will therefore derive no benefit from it.

2d. That to the extent that the premium results from the permanency of the investment, the life tenant ought not to be required to make up the deficiency in the principal caused thereby, for the reason that his interest in the permanency of the investment is but slight, as it is not difficult to secure new investments, and for the further reason that his interest in the investment may terminate at any moment; and the interest of the remainderman is to have the security run for a long time, that he may have the benefit of a permanent interest after the life tenant's death. The greater the duration of the investment the more certain is the remainderman of deriving benefit from its permanency when his estate vests in possession. Moreover the life tenant does suffer all the loss he should suffer in compensation of the slight benefit which he receives from a permanent interest, by losing annually the interest on the amount of premium which is attributable to that cause. Besides it is not practicable to charge him with any portion of the premium caused by the stability of the security, as just what portion thereof can be referred to that cause cannot be accurately calculated or even approximately estimated.

3. In so far as the security springs from the safety of the investment, we have already shown in the article to which this review of New England Trust Co. v. Eaton is appended, that the life tenant fully and fairly bears his share of the burden by losing annually interest on the amount of premium caused by that element of safety, without being called upon to restore to the principal the whole or any portion of the deficiency which results from the payment of such premium. The only interest that the life tenant has in the safety of the investment is that he may receive the interest on it during his life. The interest which the remainderman has in the safety of the investment is that he may receive the principal itself. That the life tenant may surely receive his principal, a certain sum is paid, and it is a just and equitable apportionment of the loss, that the life tenant should pay interest for the preservation of interest, and the remainderman principal for the preservation of principal. The remainderman should lose the principal sum paid for premium for safety, and the life tenant should lose the interest thereon. But the life tenant necessarily loses that interest every year, and to require him to contribute in addition out of his depleted income a further sum to make good any portion of the principal would be an unjust appropriation of his property for the benefit of another.

It is therefore submitted that whether the premium upon an investment is attributable to any one or all three of the elements we have been considering--excess of interest, permanency of the security and safety of the investment-there is no justice or reason in requiring the life tenant to use a portion of his income to make good the deficiency caused by premiums paiá. So far from taking this view of the question, Judge Devens holds that the life tenant must annually deduct from his income a certain sum fixed by an arbitrary calculation, and that this sum becomes eo instanti it is deducted and set apart, absolutely a portion of the principal, and must go to the remainderman, even though the investment results, not in a loss, but in an increase of the original principal sum. He says: "It has been suggested that a suspense account might be kept by the trustee, to which sums such as have in the case at bar been retained might be carried; and if hereafter the bonds should be sold before maturity at an advance, the life tenant would be entitled to receive therefrom all that was not required to restore the capital originally invested. This suggestion is based upon the theory that any possible profit made by the sale of the securities belongs to the tenant for life, and still involves the idea that he must bear the possible loss."

The court distinguished the case of Hemenway v. Hemenway, 134 Mass. 446. But the statement of that decision by Judge Devens himself shows that there is little if any difference between the two cases on principle. He says: "The tenants for life rely much upon Hemenway v. Hemenway, 134 Mass. 446. This was a bill in equity, by which was brought before us the whole management of a large estate in which very ample discretionary powers had been given to trustees. The testator had left subject to the trust bonds payable at a fixed period. As between the tenant for life and the remainderman, it was decreed that the trustees by the authority conferred by the clause of the will, 'to hold the said property as they may receive the same, or at their discretion to sell the same,' were entitled to con tinue their investments as such, and to retain these bonds until they were paid off, and that the whole net income of the investments thus authorized must go to the tenants for life by the terms of the will.' There was also an investment made by the trustees in

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