interpretation, and so far as possible, effect be given to each distinct provision, courts anxiously lay hold of every expression as a ground of avoiding a construction which may defeat the testator's intention by excluding the issue of a deceased child from participating in a general family provision. The impression made in reading this bequest, in connection with the other provisions of the will, is that the testator in-❘ tended it as a family provision for all the children of Clarissa, and their representatives, if deceased at the time of her decease, except her grandchild George Wilber. This exception indicates very strongly that the testator had in view the issue of the children of Clarissa who were deceased at the time of the making of the will. The exception of one only shows that he intended to include the other issue of said deceased children among the objects of the bequest, and such intention must govern it. It is decisive.

In Giles v. Giles, 8 Sim. 360, a testator bequeathed the general residue to trustees, in trust for his children living at the decease of his wife, and if any such children or child should be deceased before his wife, and should leave issue, then the children of such his son or daughter should be entitled to the portion fof such his son or daughter who might be deceased before the decease of his wife, and with a proviso, that until the portions thereby provided for any of the said children of his said sous or daughters, who might have died before their mother should become vested, it should be lawful for his trustee to apply the interest of the portion for the maintenance of the child entitled in expectancy. The testator at the date of the will had four sons and one daughter living, and he had had another daughter, who was then dead, leaving children. The question was whether these children of the deceased daughter were objects of the bequest, and Sir L. Shadwell, V. C., decided that they were relying on the expression "sons and daughters," which he considered to indicate that the testator had the issue of the deceased daughter in his view, he having but one daughter living at the date of the will.

See also Jarvis v. Pond, 9 Sim. 549; In re Sibley's Trusts, 5 Ch. Div. 494; Gowling v. Thompson, 11 Eq. Cas. 366, note. These cases are strong authorities showing that the intention of the testator, as evidenced by the will, is controlling in construing the language used by the testator in making a bequest, and must govern in determining who are the objects of it.

The judgment of the court is that the judgment of the County Court, affirming the decree of the Probate Court, is affirmed, and the same is ordered to be certified to the Probate Court.

after giving a large number of pecuniary legacies to his relatives and next of kin, gives the sum of $10 to the Reverend H. G. Bowers, and immediately following this last legacy, is the clause in question, which reads as follows: "I give and bequeath and devise unto the Reverend H. G. Bowers, of Jefferson, Maryland, all the rest and residue of my estate, and desire him to use and appropriate the same for such religious and charitable purposes and objects, and in such sums and in such manner, as will, in his judgment, best promote the cause of Christ."

The controversy is between the heirs at law and next of kin of the testator on the one side, and the Reverend Mr. Bowers on the other. The former contend that a trust was created by this clause of the will, and that such a trust is void, and therefore the property descends to them; while the latter insists that no trust is created, and that he takes the property in his own right, or if there be a trust, that it is valid and effective.

If there had been no decisions of the courts upon the subject, and this possession could be carried out in accordance with the intention of the testator, there would be very little difficulty in the case. He did not mean that this property should go to his heirs at law and next of kin; for if he did, he would not have inserted this clause in his will. Neither did he intend that Mr. Bowers, a stranger to him in blood, should take the property for his own individual benefit. He gave him a legacy of $10, and this is manifestly all the personal benefit he intended to bestow upon him. His intention undoubtedly was that this residue of his estate should be devoted to the "cause of Christ," and in order to carry this into effect, he selected his friend, the Reverend Mr. Bowers, as his disbursing agent or trustee. He gives to this agent the discretion to select the religious and charitable purposes upon which his bounty was to be bestowed, and the amount to be allotted to each, but gives him no discretion so to distribute it or not, as he pleased. He says to him, in effect: "I give you this property, not for your own benefit, but to use aud appropriate it to the cause of Christ, leaving it to you to select what religious and charitable purposes and objects shall be the recipients of my bounty, as well as the sums which each shall receive, and you must make such selection and distribution among the objects selected as will, in your judgment, best promote that cause." This as it appears to

us was the plain intention of the testator, and is the plain reading of this clause. It is true, he does not use the term "in trust," but the language, "and I desire him to use and appropriate" the same for the purpose and in the manner specified, is just as effective, so far as his intention is concerned, to create a trust as if the proper technical term had been employed.

But by the decisions of the courts it has become the settled law of this State that such a trust is void, because it is too vague and indefinite to be carried into effect. The uniform course of our decisions is that a trust, to be upheld, must be of such a nature that the cestuis que trust are defined, and capable of enforcing its execution by proceedings in a court of chancery. This doctrine has been laid down in a series of adjudications, from Dasheill v. Attorney-General, in 5 Harr. & J. 320, to Isaac v. Emery, in 64 Md. 333. The most prominent of the intermediate cases are Wilderman v. Mayor, etc., of Baltimore, 8 id. 555; Needles v. Murtin, 33 id. 609; and Church, etc., v. Smith, 56 id. 397. It requires no argument to show that the trust in this will falls within the rule established by these decisions, and must therefore be held to be void. The consequence of this is, that if we are right in holding this to be a trust, the property goes to the heirs at law and next of kin.

But it has been strenuously argued, that where pre

only, is again examined and explained, and it was again held that to to constitute such a trust as shall exclude the donee to whom the precatory words are addressed, it is sufficient if it appears a trust was intended, although the object of such trust is uncertain and cannot be ascertained. The conclusion reached by this learned judge was, that although the certainty of both subject and object may clearly indicate the existence of a trust, the converse of the proposition is by no means true; and that however uncertain may be the objects of the testator's bounty, if it clearly appear that such objects were intended by him to have the benefit of the gift, it will exclude the donee, and create a trust.

catory words are used, the very fact that the objects or parties to be benefited, or to be selected for that purpose, are uncertain, is conclusive that no trust is created, and in such case the donee takes the property absolutely In other words, the contention is that no trust arises by force of any precatory words unless there is certainty in the object, as well as in the subject. This doctrine, no doubt, receives support from statements contained in some of the text-books, and is apparently sustained by some of the decisions; but we do not find that the authorities have laid it down as an inflexible rule applicable to all cases, and wholly irrespective of the intention of the testator or donor to create a trust. Lord Eldon, in the noted case of Morice v. Bishop of Durham, 10 Ves. 522, went no further than to say: "Wherever the subject to be administered as trust property, and the objects for whose benefit it is to be administered, are to be found in a will not expressly creating a trust, the indefiniteration of Gloucester v. Osborn, 1 H. L. Cas, 272. nature and quantum of the subject, and the indefinite nature of the objects, are always used by the courts as evidence that the mind of the testator was 'not to create a trust; and the difficulty that would be im-recognized in 1 Jarm. Wills (4th Am. ed.) 693, where posed upon the court to say what should be so applied, or to what objects, has been the foundation of the argument that no trust was intended."

On the other hand, Lord Chancellor Truso, in the case of Briggs v. Penny, 3 Macn. & G. 546 (decided in 1851), deduces the principles from the then state of the authorities thus: "I conceive the rule of construction to be that words accompanying a gift or bequest, expressive of confidence, or belief or desire or hope that a particular application will be made of such bequest, will be deemed to import a trust upon these conditions: First, that they are so used as to exclude all option or discretion in the party who is to act, as to his acting according to them or not; secondly, the subject must be certain; and thirdly, the objects expressed must not be too vague or indefinite to be enforced."

And as strongly sustaining the same proposition, reference may be made to the antecedent cases of Ommanney v. Butcher, 1 Turn. & R. 260; Ellis v. Selby, 1 Mylne & C. 286; Stubbs v. Sargon, 4 id. 513; and Corpo

It is also to be remarked that the distinction between this class of cases, and others in which precatory words have been held not to create a trust, is

the learned author says: "It is to be observed that in all these cases the consequence of holding the expressions to be too vague for the creation of a trust was that the devisee or legatee retained the property for his or her own benefit; and in this respect these cases stand distinguished from those in which there was considered to be sufficient indication of the testator's intention to create a trust, though the objects of it were uncertain, a state of things which of course lets in the claim of the heir or next of kin to the beneficial ownership. In such cases there is no uncertainty as to the intention to create a trust, but merely as to the objects. In the other class of cases it is uncertain whether any trust is intended to be created."

In this country, also, adjudications are to be found in which the same doctrine is approved. Even in the case of Pennock's Estate, 20 Penn. St. 26, where the court decided that the old Roman and English doctrine, that precatory words will be sufficient to convert a devise or bequest into a trust was not part of the common law of Pennsylvania, they yet held that such words may amount to a declaration of trust when it appears from other parts of the will that the testator intended not to commit the estate to the devisee or legatee, or the ultimate disposition of it to his kindness, justice, or discretion. The case of Ingram v. Graley, 29 Ga. 553, is directly in point. There the decision in Briggs v. Penny was approved and fol

And then, in reference to this third condition, he says: "It is most important to observe that vagueness in the object will unquestionably furnish reasons for holding that no trust was intended; yet this may be countervailed by other considerations which show that a trust was intended, while at the same time such trust is not sufficiently certain and definite to be valid and effectual; and it is not necessary to exclude the legatee from a beneficial interest that there should be a valid or effectual trust. It is only necessary that it should clearly appear that a trust was intended. *** Once establish that a trust was intended, and the leg-lowed, and it was held that a trust was created by atee cannot take beneficially. If a testator gives upon trust, though he never adds a syllable to denote the objects of the trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded, and the next of kin take. But there is no peculiar effect in the word 'trust.' Other expressions may be equally indicative of a fiduciary intent, though not equally apt and clear."

He then refers to the fact that in the will before him, as in the will before us, another legacy had been given to the legatee, as clearly showing "that she was not intended to take the residue beneficially," and dismissed the appeal, which was taken from a decree passed by Vice-chancellor Sir Knight Bruce, whose opiniou in the case is reported in 3 De Gex & S. 525.

So in the more recent case of Bernard v. Minshull, Johns. Eng. Ch. 276 (decided by Vice-chancelor Sir Page Wood in 1859), the maxim that a certain subject and a certain object are necessary in order to constitute a trust, where the words used are precatory

precatory words, though not sufficiently declared, and that the legatee did not take the estate beneficially, but as trustee for the next of kin.

In short, our examination of the authorities, both English and American, has led us to the same conclusions that were reached by the commentators to Hill Trustees (4th Am. ed. 116, and which are also cited with approval in Perry Trusts, § 114, note 4. Among the rules there laid down as fairly deducible from the adjudged cases are these: (1) Discretionary expressions which leave the application or nonapplication of the subject of the devise to the objects contemplated by the testator entirely to the caprice of the devisee, will prevent a trust from attaching, but a mere discretion in regard to the method of application of the subject, or the selection of the object, will not be inconsistent with a trust; (2) precatory words will not be construed to confer an absolute gift on the first taker, merely because of failure or uncertainty in the object or subject of the devise; and (3) failure or uncertainty will be an element to guide the court in construing words of doubtful significauce adversely to

a trust.

But our own decision in Taylor v. Plaine, 39 Md. 58, if not conclusive, goes very far to settle the question now before us. In that case a devise of property, real and personal, to certain named parties, "to be disposed of according to their verbal directions, or the direction of either of them," was held to be upou trust; and as the terms of the trust had not been declared in the will, a trust arose by operation of law in favor of the heirs and personal representatives of the testator. Several passages in the opinion in that case have a direct application to this. After stating that no positive rule can be laid down which shall determine in all cases what terms or expressions will carry a beneficial interest, or what will create a trust, the court say: "The words 'trust' and 'trustees' have, it is true, a defined and technical meaning, and are more generally as well as more properly used, but it is well settled that there is no magic in particular words, and any language which satisfactorily indicates an intention to stamp upon the devise the character of a trust will be sufficient."

Again, after comparing the several provisions of the will with each other, they say: "We think it may be fairly inferred that the testator did not design to give to these donees, who were neither his heirs nor next of kin, but strangers in blood, a beneficial interest in the property, but that they should take it in trust."

The trust failed for uncertainty in the objects, no cestuis que trust being named, and the property was adjudged to belong to the heirs and next of kin.

If after the bequest and devise to Mr. Bowers, the words "in trust" had been used, it is conceded, and all the authorities show, he would have taken no beneficial interest whatever, by reason of the failure of the trust for uncertainty in its objects. But other words plainly indicating an intention to create a trust are used, and it is manifest from the whole will that the testator never intended to give him this property in his own right and for his own use. We have already given our reading of this clause, and we think no one can read this will, or hear it read, without saying at once that the testator never intended to make an absolute gift of the residue of his estate to Mr. Bowers, or to give him any beneficial interest therein. Can then the omission of the words "in trust," coupled with the fact that the law, as laid down by the courts, declares that the testator's intentions are too vague and indefinite to be carried into effect, work an absolute gift of the property to one whom he never intended should be the recipient of such a gift? A result like this could only be attained by disregarding intention, and relying upon some arbitrary, inflexible, and technical rule of construction which has no foundation in reason; and we have shown that no such rule has been sanctioned by any controlliug weight of authority.

The practical effect of the decree appealed from is to give this property to the heirs-at-law and next of kin of the testator, and we affirm it.

J. D. Fenton, for plaintiff.

L. H. Montanye, for defendants.

corporation formed under the law of Connecticut, DEADY, J. This suit is brought by the plaintiff, a against the defendants, citizens of Oregon, to enforce suit was commenced on August 12, 1885, in the State the lien of a mortgage on certain real property. The removed here by the plaintiff. Here the plaintiff filed Circuit Court for the county of Linn, and afterward an amended "complaint," and the cause was heard on a demurrer thereto.

From the amended bill or complaint it appears that on April 21, 1881, the defendants made and delivered their promissory note, payable to the order of the plaintiff, on April 21, 1886, for $2,000, "with interest from date until paid, at eight per cent per annum, as per coupons attached, at the office of the Corbin Banking Company, New York city." The note also contained the following stipulations:

"Unpaid interest shall bear interest at ten per cent per annum. On failure to pay interest within five and interest at once. days after due, the holder may collect the principal And in case suit is instituted to collect this note, or any portion thereof, I promise to sonable, as attorney's fees in said suit." pay such additional sum as the court may adjudge rea

And also made and delivered to the plaintiff their six coupon or interest notes, for the interest to accrue follows: One for $110.68, payable January 1, 1882; on said principal note, for the sums and payable as four for $160 each, payable, respectively, January 1, 1883, 1881, 1885, and 1886; and one for $49.32, payable April 21, 1886. There is now due on the principal note terest on $2,000 thereof at eight per cent per annum and the last two coupons the sum of $2,320, with infrom January 1, 1886, and on said coupon notes from the date when they became payable at ten per cent per annum, in the United States gold coin, no part of which has been paid.

On April 21, 1881, the defendants, to secure the paythereby agreed to be paid, executed to the plaintiff a ment of said note and coupons, and all sums of money mortgage on a certain tract of land, situate in Lane county, Oregon, containing 640 acres; which mortgage contained the following stipulations: (1) That if said defendants fail to pay any of said interest when due, the same shall bear interest at the rate of ten per cent per annum; (2) the defendants will pay all taxes and assessments levied on said real property before the same becomes delinquent,and if not so paid, the holder of the mortgage may, without notice, declare the whole sum thereby secured due at once, or may elect to pay said taxes and assessments, and be entitled to interest on

CONFLICT OF LAWS NOTE PAYABLE IN the same at the rate of ten per cent per annum, for

ANOTHER STATE-INTEREST.

CIRCUIT COURT, DISTRICT OREGON.
AUGUST 9, 1886.

NEW ENGLAND MORTGAGE SECURITY Co. V. VADER. Prima facie the place of payment of a promissory note is the place of performance, including the rate of interest that may be demanded thereon; but the parties thereto may adopt the law of the place of making the contract as the place of payment, so far as such interest is concerned, and the fact that the higher rate of interest allowed by the law of the place of the making of the contract is spec

which the mortgage shall be a security; (3) if the defendants fail to pay any of said money within five days after the same shall become due, or to conform to or comply with any of these stipulations, then the whole amount secured by the mortgage shall become due at once; and (4) that on filing of a bill to enforce the lien of said mortgage the plaintiff therein shall recover a reasonable attorney's fee, to be taxed by the court, for which the mortgage shall stand as security.

For the years 1883, 1884, and 1885 taxes were levied on said land by Linn county amounting to $106.11, which became delinquent, and were a lien thereon, and

contrary, the contract was openly made in good faith, in accordance with the law of this State, where the defendants resided, and it would be a reproach to the administration of justice if the defendants could now defraud the plaintiff out of its money simply because their note was, with their consent, and only for the convenience of the lender, made payable in New York rather than Oregon.

There is no law of this State that prohibits the payment of interest on interest; and the better opinion is that no contract for the payment of interest, whether on interest or principal, is usurious or illegal, unless prohibited by statute. Tyler Usury, 64. But the rule was early established in equity that compound interest would not be allowed, not because it was usurious or contrary to the statute on that subject, but because the practice, if allowed, would lead to the oppression of improvident debtors. Connecticut v. Jackson, 1 Johns. Ch. 13. This rule doubtless had its origin in the old ecclesiastical idea that the taking of interest, under any circumstances, was usury, and a grievous sin. But the tendency of opinion has been toward the suggestion of Lord Thurlow, in Waring v. Cunliffe, 1 Ves. Jr. 99, that there is nothing unjust in compelling a debtor who neglects to pay interest when it becomes due, to pay interest upon that interest; and so it was early settled that a promise to pay interest on interest after the latter became due is valid. Kellogg v. Hickok, 1 Wend. 521; Hathaway v. Meads, 11 Or. 66; S. C., 4 Pac. Rep. 519.

same effect is the ruling in Clark v. Iowa, 20 Wall. 589; Town of Genoa v. Woodruff, 92 U. S. 502; and Gelpcke v. Dubuque, 1 Wall. 200.

In Jones on Mortgages (§§ 653, 1141) it is said that coupons for the interest on a mortgage debt are, in effect, promissory notes, and draw interest in the same manner after maturity. To the same effect is Daniel Neg. Inst., § 1513. See also Harper v. Ely, 70 Ill. 581; Thayer v. Star Mining Co., 105 id. 552.

In my judgment these interest notes are entitled to draw interest, at the rate agreed on, from the date of their maturity.

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

CRIMINAL LAW-LIQUOR LAW-CONSPIRACY-SOLICITATION.-Several persons were charged in an indictment with conspiracy in that they had induced a sa. loon keeper to sell or give to them drinks on Sunday with the intention of proceeding against the person so supplying the liquor and getting the informer's share of the penalty. Held, the Quarter Sessions had properly quashed the indictment. It is impossible to hold that persons are guilty in law for conspiracy to do an act where the act imputed is such that if the intention had been consummated no offense would have been committed. It is not alleged that the defendants by furnishing a stock of liquor, or by any other means instigated or furthered the illegal act of selling or giving away on Sunday, nor that they conspired by force or threats to coerce the saloon keepers to sell. The latter were free agents; they sold or gave away the beer because they chose to do so. Where there is a confederacy, but nothing more than solicitations to an intelligent free agent to commit crime, it is not indictable unless it is made so by statute. 1 Whart. Cr. Laws (8th ed.), § 2691. Chief Justice Gibson, in Shannon v. Commonwealth, 2 H. 226, said that if confederacy constituted conspiracy, without regard to the quality of the act to be done, a party might incur the guilt of it by having agreed to be the passive subject of a battery. Accordingly these defendants would not have been indictable if they had combined and agreed together to go to the prosecutor's house and solicit and induce him to beat them; they are not indictable for having conspired to induce him to give to them drinks on Sunday. Counsel for the Commonwealth

By the law of this State (Sess. Laws 1880, p. 17) interest is allowed at "eight per cent per annum, and no more, on all moneys after the same become due; * * * but on contracts, interest at the rate of ten per cent per annum may be charged by express agreement of the parties. and no more." These interest notes are distinct contracts for the payment of money, and when they became due were entitled, under this statute, without any agreement of the parties on the subject, to draw interest at eight per cent per annum until paid, or by the agreement of the parties, they might draw ten per cent. The provision of the statute is in effect that interest shall be allowed "on all moneys after the same become due," and that at least includes the case of money due on an interest or coupon note, or a promise or agreement in a principal note to the effect that the interest thereon shall be paid at a certain period or periods prior to the maturity thereof. But interest concerning the payment of which no special promise is made, and which no other-rely principally upon the case of Hazen v. Commonwise exists or is due than as an increment of the principal sum, is not included in this statute as" money" due and entitled to bear interest. But a promise to pay interest as a distinct debt or liability, either in or out of the principal contract, and before or as the principal sum falls due, is a promise to pay a sum of money, which when due, bears interest under the statute, either at the legal rate, or according to the agreement of the parties, within the limit allowed thereby.

In Bledsoe v. Nixon, 12 Am. Rep. 642; S. C., 69 N. C. 89, it was held that when a promissory note contained a stipulation that the interest thereon should be paid semi-annually, an unpaid installment of interest drew interest, as if a note had been given therefor.

In Wheaton v. Pike, 11 Am. Rep. 227; S. C., 9 R. I. 132, it was held that where a promissory note was made payable in the three years after date, with interest payable semi-annually, each installment of interest falling due before the maturity of the note drew interest from the time it was due until paid.

In Aurora v. West, 7 Wall. 104, it was held that interest coupons, by universal usage and consent, have all the qualities of commercial paper, and should draw interest after payment is neglected or refused. To the

wealth, 11 H. 355. It is asserted that it was there held that Hazen and three others had been properly convicted upon an indictment charging that they had conspired to solicit, induce and procure the officers of a bank to violate a statute which made it a penal offense to issue notes of banks of other States of a denomination less than $5. The statute gave the former the one-half of the money penalty. But the counts upon which Hazen and his co-defendants were convicted charged more than the mere conspiracy to procure the bank officerss to issue the forbidden notes. It was also charged, and found, that one of them had deposited in the bank large sums of money, not for lawful business, and drew them by checks for unequal sums, and required the checks to be paid in bank notes of less than $5, and the defendants had threatened to bring penal actions unless they were paid $3,250; that it was the purpose of the conspiracy to compel the bank officers unjustly and unlawfully to pay large sums of money for the corrupt gain of the defendants. The Supreme Court said that they were left to infer that such large sums of money were to be obtained by some other means than a fair prosecution of the offending bank officers; that it was charged that the money was to be drawn from the victims by compound