from injury, and did not furnish other suitable protection, we think the jury is the proper tribunal to find whether the defendant was thereby guilty of negligence. If the ice on the step caused the plaintiff to fall, or contributed thereto, it is proper for the jury to consider whether under all the circumstances proved it was suffered to remain thereon for an unreasonable length of time. It may be impossible in the winter to prevent deposits on the step by falling snow, or from the feet of persons entering the car, and which in either case may result in the formation of ice. The main question in regard to this is whether it remained there for such time, and in such form, as to establish the negligence of the defendant, and that this negligence contributed to the injury of the plaintiff. Penn. Sup. Ct., Oct. 14, 1886. Neslie v. Second & Third Sts. Pass. Ry. Co. Opinion by Mercur, C. J. CONSTITUTIONAL LAW-COMMERCE-STATUTE PROHIBITING CARRIERS FROM LIMITING LIABILITY.—A statute of Iowa prohibiting corporations engaged in transporting goods or passengers between different States from limiting their liability as common carriers by contract is not a regulation of commerce among the States. It is contended that the State has no power to place a restriction of that character upon the carrier who contracts for the transportation of property from this State into another State or Territory. The position is that the restriction, if applicable to a contract of this character, would be a regulation of commerce among the States, a subject, which under the Federal Constitution is within the exclusive jurisdiction of the Congress of the United States. In our opinion however this position cannot be maintained. The provision is in no just or legal sense a regulation of commerce. It prescribes no regulation for the transportation of freight upon any of the channels of communication. It leaves the parties free to make such contracts as they may choose to make with reference to the compensation which shall be paid for the services to be rendered. The carrier is left free to demand such compensation for the carriage of the property as is just, considering the responsibility he assumes when he receives it. He is forbidden to make any contract that would exempt him from any of the liabilities which arise by implication from his undertaking to carry the property. But no burden is placed upon the property which is the subject of the contract; nor is any rule prescribed for his government respecting it. That it is within the power of the State to prescribe such a limitation upon a power to contract, we have no doubt. The statute was enacted by the State in the exercise of the police power with which it is vested, and it is applicable to all contracts entered into within its jurisdiction. The question involved is not different in principle from that decided by the Supreme Court of the United States in what are known as the Granger cases. See Munn v. State, 94 U. S. 113; Chicago, B. & Q. Ry. Co. v. Iowa, id. 155; Peik v. Chicago & N. W. Ry. Co., id. 164. Iowa Sup. Ct., Oct. 11, 1886. Hart v. Chicago & N. W. Ry. Co. Opinion by Reed, J. [See Railway Co. v. State, ante, 406.-ED.] CONTRACT-UNINTELLIGIBLE ORDER-EVIDENCE.Action to recover the price of a "counter rail." The plaintiff put in evidence a postal card signed by the defendants, of which the substance is as follows: Please send us pice of counter screen like draft." Upon this card was a draft of a counter screen, with measurements thereof. The court rightly ruled that this order was unmeaning and unintelligible, and that it could not be construed as an order for a piece of counter railing. It presents a case of incurable uncertainty, and the court properly refused to submit it to the jury to determine whether the letters "pice" meant piece or price. These letters do not mean any thing, and neither the court nor the jury can construe them as meaning piece. There was no valid written order, and the question whether the defendants intended to order a piece of counter rail and either expressly or by implication promised to pay for it was submitted to the jury with instructions, of which the plaintiff does not complain, and which were sufficiently favorable to it. Mass. Sup. Jud. Ct., Bigelow Wire Works v. Sonel. Opinion by Morton, J. ESTOPPEL-JUDGMENT-SPECIFIC PERFORMANCE OF CONTRACT-REFORMATION.-Where in an action for the specific performance of a contract for the sale of real estate, a judgment was rendered on the merits in favor of the defendant, held, that the judgment was a bar to another action to reform the contract, and to enforce it as reformed. We are unable to see however why the matter should not be held to be res adjudicata, and the plaintiff bound by his election. The new issue was merely incidental to the main cause of action. Winchell v. Coney, 27 Fed. Rep. 483, 484. The written contract was imperfect, but the plaintiff chose to rest a suit upon it as it was, and the judgment in the case, until set aside, was mutually binding upon the parties to it, and final as respects the merits of plaintiff's claim, notwithstanding mistakes and omissions in the proceedings, or the failure on the part of either party to make a full presentation of his case by the proper allegations and proofs. Thompson v. Myrick, 24 Minn. 11. It is manifest that the two actions could not proceed pari passu to trial and final judgment in the same court, and that the plaintiff in such case would be compelled to elect, and be bound by his election. Neither can they be so prosecuted successively. Washburn v. Insurance Co., 114 Mass. 175; Steinbach v. Insurance Co., 77 N. Y. 502; 8. C., 12 Hun, 645. In such cases the plaintiff should take a dismissal in the nature of a nonsuit before final submission on the merits. The former suit was dismissed in this instance by the court after the plaintiff's case was submitted; but it is not material that the judgment was in form of one dismissal if it was in fact determined on the merits. Boom v. St. Paul F., etc., Co., 33 Minn. 256. Minn. Sup. Ct., Oct. 6, 1886. Thomas v. Joslyn. Opinion by Vandenburgh, J. MORTGAGE-SALE BY MORTGAGOR TO MORTGAGEELIEN OF SUBSEQUENT JUDGMENT.-Where a mortgagor deeded the land mortgaged to the mortgagee in consideration of the satisfaction of the mortgage debt, and a subsequent judgment creditor sought to enforce his lien against the land, held, that it was intended that the land should pass, free from incumbrances, in payment of the mortgage debt, and that if the judgment is a subsisting lien upon the land, this condition fails, and the mortgage is unpaid, and the mortgagee may enforce it. Stimpson v. Pease, 53 Iowa, 572; Wickersham v. Reeves, 1 id. 413; Lyon v. McIlvaine, 24 id. 9. Counsel for defendant insists that upon the conveyance of the property, the estate and interest under the mortgage merged in the fee-simple title under the deed executed by the mortgagor. The doctrine is well settled in this State that in such a case no merger will occur when the intention of the mortgagee is otherwise, and the merger is against his interest. Wickersham v. Reeves, 1 Iowa, 413; Lyon v. McIlvaine, 24 id. 10; Stimpson v. Pease, 53 id. 572; Woodward v. Davis, 53 id. 694; Wilhelmi v. Leonard, 13 id. 330; Vannice v. Bergen, 16 id. 555; Rankin v. Wilsey, 17 id. 463; Linscott v. Lamart, 46 id. 312. In the case last cited the conveyance to the mortgagee was by a deed of warranty executed by the mortgagor, and the notes secured by the mortgage were surrendered. Like facts are relied upon in this case. But it was held, that in the absence of an intention to merge the mortgage es tate in the fee-simple, it would not occur. MISSTATEMENTS BY COUNSEL. igation, or obstruct in any way the navigation of the river. It is clear that the plaintiff's dock is an improvement, and in the general interest of navigation, and a public as well as a private benefit. It is equally clear that the defendant's boom is strictly a private venture and enterprise, for his use and benefit alone, in which the public has no interest; and it not only does not facilitate, but it obstructs the free navigation of the lake. It is uncommon to place booms along or near the shores of lakes, and it is probably never done except for such private use for the storage and safekeeping of logs. Along rivers they facilitate the run TRIAL-ERROR Where it is alleged that an attorney in the argument of a cause on trial to a jury made misstatements of the evidence, and went outside of the record in his statements of the facts proved on the trial, the attention of the court should be called to the language and conduct of the attorney by the proper objection, and a ruling had thereon by the court. If the objection is overruled, and an exception taken, the question may be reviewed in the Supreme Court, upon the language,ning and sorting of logs, and in that way aid naviga-objection, ruling, and exception being made a part of the record by the proper bill of exception, but not otherwise. A question involving the principle now under examination was for the first time, so far as my information extends, presented to this court in the case of Cropsey v. Averill, 8 Neb. 151. The opinion of the court was unanimously concurred in. I quote the eighth clause of the syllabus: "(8) One ground of error assigned was the misconduct of the opposing counsel, in their argument to the jury, prejudicial to the plaintiff in error. But it was not shown by the record they were called to order, nor that the court was requested to confine them within the bounds of legitimate discussion. Held, that while the offense complained of, if properly presented, would be good ground for a reversal of the judgment, still as the record does not show any ruling by the court below respecting it, there is no question for this court to review." The above case has been adhered to by this court without exception. See Chicago, St. P., M. & O. Ry. Co. v. Lundstrom, 16 Neb. 254; Bradshaw v. State, 17 id. 147; McLain v. State, 18 id. 154. The case of Cleveland Paper Co. v. Banks, 15 Neb. 20, constitutes no break in the above line of decisions. A care tion. Docks, wharves, and public landings are essential to navigation, and highly favored in the law. The defendant, as a riparian proprietor, may have had the right to construct this boom for his own benefit, if it had not interfered in such way with the free and unobstructed navigation of the waters of the lake. When it does so interfere with the private and public navigation then it becomes a private and public nuisance to be abated, and those who place them or maintain them there are liable in damages for any special injury. In view of the well-settled law of this State, the defendant is guilty of a gross infringement of the plaintiff's right to the full use of his dock in connection with the navigation of the lake. The cases in this State involving the right to construct booms are those of booms upon navigable rivers, which in many respects are in aid of navigation, but all of them invariably lay down the doctrine that even such booms must not obstruct or interfere with the general navigability of the river. The cases in this State, cited by the learned counsel of the appellant himself, all hold the same doctrine, as in Stevens' Point Boom Co. v. Rielly, 44 Wis. 295; that the boom must not interfere with any one's right of navigation, or obstruct cases the paramount right of general navigation is fully recognized. Diedrich v. Railway Co., 42 Wis. 248. In Stevens' Point Boom Co. v. Reilly, 46 Wis. 237, in this court the second time, Chief Justice Ryan said: "The private right of the riparian owner, as declared in Diedrich v. Railway Co., quoted in the opinion on the former appeal, is subordinate to the public use of a navigable river, and is always exercised at peril of obstructing navigation. This subjection of the private right to the public use may sometimes im. pair the private right, or defeat it altogether. But the public right must always prevail over the private exercise of the private right." This principle, often repeated, was recognized early in this State, in Walker v. Shepardson, 2 Wis. 384, in which the driving of piles in a navigable river, obstructing public navigation and causing a private special injury to the plaintiff's right of navigation was held to be indictable as a public nuisance, and actionable by the party injured. But the question is too plain and too well settled in this State to require further citation of authority, except Harrington v. Edwards, 17 Wis. 604, which in principle, is closely in point. It is there held that raftsmen on navigable streams have no right to moor their rafts in such a manner as to deprive wharf-owners of access to their wharves. This is the precise principle in this case. The plaintiff's dock is in the interest of naviga ful examination of that case will show that the judg-in any way the navigation of the river. In all the ment was reversed and a new trial awarded for misconduct of the prevailing party, and that this misconduct consisted in the persistent effort, by one of the attorneys of the defendant in error, in the course of the trial in the court below, to prove and get before the jury the alleged fact that one Smith, the secretary of the company of which defendant in error was president, had embezzled the funds of the said company. It is true, the opinion recites the fact, that in the course of the argument of the cause to the jury, one of the counsel for defendant in error used the following language, which was quite outside of the case: "The history of Smith you know; they told you directly after these goods were shipped Smith went away with property that was not his own." But it also appears that "the plaintiff's attorneys objected to the use of this language, and the court restrained the attorney from making such statements. Certainly this could not have been held error." As an individual member of the court, I doubt that any application, motion, or proceeding made, or sought to be made by counsel in open court, under the eye and within earshot of the presiding judge and opposing counsel, can be held to be misconduct of the prevailing party, within the meaning of the statute. But certainly in a case like the one at bar, where the alleged misconduct consisted in an irrelevant statement by counsel, for which he was not even called to order by opposing counsel, nor the attention of the court called to it, ex. cept for the purpose of getting the language used into a bill of exceptions, no error can be predicated upon it. Neb. Sup. Ct., Sept. 29, 1886. Ballis v. Drake. Opinion by Cobb, J. tion, the same as a wharf, and serves the same purpose, and cutting off access to it on one side was equally a wrong. Wis. Sup. Ct., Sept. 21, 1886. Union Mill Co. v. Shores. Opinion by Orton, J. WAYS OBSTRUCTION BUILDING OVER ALLEY.The owner of the fee in the land, over which is a right of way, may erect a building over said way, if in so doing he does not interfere with the right of way. What is included in the ordinary grant of a right of way commonly called an "alley-way?" The complainant relies on Kana v. Bolton, 36 N. J. Eq. 21. So far as the right to an easement entered into the controversy in that case, it was not decided that building over or across it, six feet above the ground, was or was not an obstruction. Nor can I find any case which supports the claim of the complainant; but so far as the question has been considered by the courts, the cases are against the complainant. In Massachusetts the owner of an adjoining tenement, who had the fee in the soil over which was a way, built over the way at an elevation of eleven feet. The court (Gerrish v. Shattuck, 132 Mass. 235) held that it was lawful for him to do so. See also Atkins v. Bordman, 2 Metc. 457. In the case before me it appears that in describing the property, the way is referred to, and that following the description, are these words: "Together with the appurtenances, and also the free and joint use of said five feet three and a half inch wide joint alley, 'for ingress and egress forever." There is nothing to show any special use intended. The usual and ordinary rights conferred upon a grantee can only be taken into an account in such case. What are those rights? Only the right of ingress and egress upon the surface of the soil, not beneath the surface, not above the surface at such elevation as he may elect. He could not construct an underground way, nor 8 drain, nor other openings. He could not construct an elevated way in order to reach his lot or dwelling, or any part thereof. His rights are confined to and upon the surface of the soil. Not so limited are the rights of the owner of the fee. He has only conveyed the right to the use of the surface. All other rights of ownership not inconsistent therewith he retains and may exercise. If he does not interfere with the right of way, he may use the subsoil, or go beneath the surface for any purpose; and so undoubtedly he may appropriate the space above the surface. Below the surface he has imposed no barrier; and above, none, except the right of way; and with this exception all other rights are as perfect as they can be. Does the erection of a structure over said way, at an elevation of nine or ten feet, interfere with or obstruct the right of the complainant to ingress and egress? I think not. There is nothing in the case to show that when he purchased his lot he intended to engage in any thing that would suffer by the proposed erection; nor that since he has undertaken any thing which cannot so well be done. So that I can find nothing in the present situation, nor in any of the attending circumstances at or since the grant, which calls for the interference of this court. N. J. Chan. Ct., Oct. 9, 1886. Sutton v. Groll. Opinion by Bird, V. C. CORRESPONDENCE. APPEAL FROM ORDERS ON DEMURRERS. Editor of the Albany Law Journal: Can you inform one of your oldest subscribers whether an appeal will lie to the General Term from an order sustaining or overruling a demurrer to a complaint, where leave is given to amend? The decisions, so far as I am aware, seriously conflict. The First Departmeut, in March, 1884, held that an appeal does not lie in such a case; that the remedy is by appeal from the final judgment. 32 Hun, 194. The Third Department, in January, 1884, held otherwise. 31 Hun, 532. NOTES. DOUBT. As a boy, I have often heard Lord Abinger carry all before him by the exquisite skill and tact which he dis played in winning the hearts of juries. It was his custom when Henry Brougham or David Dundas, or some other eloquent or "hyfalutin" pleader sat down amidst a hum of applause, to appeal to the jury as a plain matter-of-fact man, who merely wished to take a common-sense view of the matter before them. "Gentlemen of the jury," he would commence, after lodging his by no means inconsiderable paunch comfortably upon the edge of the table, "I am quite sure that like all the rest of us, you will have been overpowered and fascinated by the eloquence of the speech to which we have just listened with such delight." After a few more words of judicious praise, sometimes intermixed with shafts of dexterously-administered criticism, Sir James Scarlett would continue: "Let me now endeavor in my prosaic way to draw you down from the empyrean to which you have been lifted by my learned brother." Bit by bit the arguments of the predecessors were ruthlessly stripped of verbiage, and their worthlessness was exposed in its unadorned nakedness. Before Sir James had spoken half an hour every man on the jury regarded him as a personal friend. As he looked them in the face and exchanged glances with them, he seemed to read their thoughts as though he was reading an open book. In quickness of apprehension, knowledge of human nature, subtlety of reasoning concealed under the plainest and least ambitious language, admirable skill in marshalling his facts and power of communicating to the jury his own profound conviction that he was in the right and entitled to their verdict, I have never seen his equal at the bar within the last sixty years, during which I have heard every famous advocate that ever lifted up his voice in an English court of justice. There are some few points in his long forensic career of which it may not be out of place to remind some of his successors. In the first place Scarlett trusted to cross-examination in a higher degree than any other barrister in my experience, and was never afraid of wearying the court by the length at which he conducted it, although Lord Ellenborough once spitefully said that "Scarlett's cross-examination gave him the best idea of eternity." Nevertheless it was liked, and even enjoyed by juries; and his skill in eliciting the facts which he wanted to get at was unmatched. This he did by never bullying or browbeating witnesses, however hostile or refractory they might be. In the end he rarely failed to make them his friends, and he wou them, as he won the jurymen, by apparent sincerity and good-nature. In short, his recipe for success at the bar-as he often told my father, who gave him scores upon scores of briefs-was "bonhomie and close study of human nature as indicated by the countenance." As a member of Parliament. aud again as a judge, Lord Abinger was more or less a failure. Lord Macaulay indeed speaks of him as one of the greatest bores he ever heard in the House of Commons." As he advanced in years he became of so prodigious a bulk that his activity and energy surprised all beholders. When in the country, he lived at Abinger, near Dorking, where he spent a vast sum of money in bricks and mortar. Chancing to find myself at Dorking last summer, I went over to have a look at the well-remembered house in which Lord Abinger lived. I found that it had disappeared, and that in its place Sir Thomas Farrar, of the Board of Trade, having bought the old house and property from the present Lord Abinger, had erected a brick mansion, which is, I doubt not. much more commodious than its predecessor. Yet I regretted the disappearance of the latter, for it reminded me of the days when Sir James Scarlett used to set off on horseback from Abinger at half-past six in the morning, and ride to London-distant nearly thirty mileschanging horses at Epsom. At that time he walked about seventeen stone, and when he appeared in court at ten A. M. no one would have thought he had ridden thirty miles that morning. Some fifteen years since I chanced one day to meet the late Baron Martin in the strand near Temple Bar. Addressing me by name, Sir Samuel remarked: "It would do you good to go into the House of Lords and hear Benjamin plead. He is the greatest advocate we have had since Scarlett." Now it is worthy of remark that Scarlett and Benjamin were both born in the West Indies.-A Retired Solicitor in Daily Telegraph. much-needed solicitor, which will be found exceedingly interesting.-Albany Evening Journal. An Indiana justice of the peace, who had twentyseven of his twenty-eight decisions reversed by the higher court, has resigned in disgust and opened a meat market. He says that the professional courtesy and bar has entirely petered out, and that a justice of which used to be a distinguished feature of the bench the peace of to-day is of no account. She was posted in law, and she would have no more "I am a lawyer's daughter, you know, George, dear," nonsense, according to the New York Independent: she said, after George had proposed and been accepted, Among the legal curiosities to be seen in the room of the State Bar Association at the Capitol is the original roll of the solicitors of the old Court of Chancery, of which Chancellor Walworth was the last custodian."and you wouldn't think it strange if I were to ask It is an interesting old document, bearing the names of many of the great jurists and statesmen of the State and the Republic. Mr. Proctor, whose extensive acquaintance with the legal history of the State enables him to relate many interesting events connected with it, gave a Journal tourist the following incident gaged, would you?" George was too happy to think you to sign a little paper to the effect that we are en. any thing strange just then, and he signed the paper with a trembling hand and a bursting heart. Then they were very, very happy. "Tell me, darling," she laid her ear against his middle vest button, and George said, after a long, delicious silence, "why did you want me to sign that paper? Do you not repose implicit confidence in my love for you?" "Ah, yes," she sighed, with an infinite content, "indeed I do; but, George, dear, I have been fooled so many times." Jessel had a difficulty with that Shibboleth of polite English, the letter h. He did not always drop it, but he did sometimes, and he was conscious of his failing. He was however too careless of small matters to make any affectation about it. He appeared to drop the h or sound it just as at the moment he seemed inclined. An old story arises out of this habit of his. When at the bar, he was cross-examining a French witness, through an interpretor, in a patent case, in regard to a certain chemical compound, of a poisonous character. "If you 'eat it?" asked Jessel. "Si vous le mangez," echoed the interpreter. "Maugez!" said the witness, manger." It was some time before Jessel could get on sufficiently good terms with the evasive letter to induce the interpreter to ask what would happen: "Si vous l'echauffez?"-A Generation of Judges. Although no longer in office, Karslake was habitually consulted by Cairns in regard to men at the bar who applied to him for appointments, and whom Karslake was likely to know. Cairns' sccretary arrived at Karslake's chambers one afternoon when he was sur connected with the old roll: "It was one of the rules of the Court of Chancery concerning the admission of its solicitors that they should be examined by one of the vice-chancellors. If successful, the register certified the fact to the chancellor, before whom the candidate appeared, took the solicitor's oath, signed the roll, and was ready to hang out his shingle as a 'Solicitor in Chancery.' Before a man could be a candidate for such admission he must have been an attorney of the Supreme Court. In August, 1845, a young lawyer just admitted as an attorney, desiring admission to the Court of Chancery, came to Albany, and was examined by our distinguished fellow-citizen, the Hon. Amasa J. Parker, then one of the Circuit judges of State, and one of the vice-chancellors. The candidate was successful. The late George M. Davidson, then the register in chancery, gave him the usual certificate, and he proceeded to Saratoga to take the oath and sign the roll. Arriving there, he found the chan-lifting up his hands in horror, "Mais, ce n'est pas pour cellor engaged in hearing an appeal from a decision of one of the vice-chancellors. Daniel S. Dickinson, of Binghamton, N. Y., then a senator in Congress, and Ogden Hoffman, the great New York city advocate, were pitted against each other. Hoffman was in the midst of his argument when the young lawyer entered the court-room. When the argument ended, and just as Dickinson arose to begin his address, the young candidate for equity honors being in great haste to return home, approached the senator in great haste, say-rounded by his friends and in the middle of a tale. ing: Will you be kind enough, sir, to suspend your argument long enough for me to take the solicitor's oath?' 'Young man,' said the chancellor, severely, 'you should not interrupt counsel; there will be time enough for you to take the oath when Mr. Dickinson has concluded his argument. Go on, Mr. Dickinson.' 'Oh, no, your honor, the request of this young man is exceedingly important. The State of New York is very much in need of one more solicitor. Indeed, your honor, it cannot do without another any longer, and I am very happy to suspend my argument for the purpose of giving our great State the much-needed solicitor. So, my young friend, as you appear to be the proper person for that high distinction, I will cheer. fully suspend for you.' The chancellor administered the oath, the roll was signed, and the State was provided with another 'much-needed solicitor in chancery.' 'Who knows but that young man will in a few years become your opponent in a great case, and beat He ought to do so, for you you in it, Dickinson? made him the object of one of your sharp witticisms without cause,' said Hoffman. The young solicitor did become Dickinson's successful opponent in several His name is on that roll, and some other great cases. time when you call I will give you the history of this "The chancellor wants to know what you think of Bateson, of the Western Circuit," asked the secretary. "Bateson," said Karslake; "why he was the cleverest man I ever knew. I'll tell you why presently, but let me finish this story first." He finished the story, and then turning in the direction of his new visitor, said: "Now, Graham, I will tell you why I think Bateson the cleverest man I ever knew." But the secretary was gone. Well," said Karslake, "I will tell you fellows the reason, because it is rather a good story. The fact is that Bateson was the only man who ever robbed me of a fee. That is why I call him the cleverest man I ever knew." Thereupon he proceeded to relate how Bateson had been an attorney on his cir cuit, how he had owed Karslake fees, and how by some ingenious shift he had avoided paying them. Meanwhile the chancellor's secretary, who was a busy man and could not wait to hear stories, posted off to the chancellor and reported that it was all right about Bateson. Karslake had said that he was the cloverest man he ever knew. So the lucky Bateson was made a County Court judge, and to this day does not know that he owes his place to the neglect of a Chancery secretary to wait for the end of a story.-A Generation of Judges. calities. As it now stands, we may say, with a The Albany Law Journal. grain of allowance, that as no two wills are alike, ALBANY, NOVEMBER 27, 1886. CURRENT TOPICS. so no two courts will think in the same way about the same will, and even one court will never think the same way twice about similar wills. That is the reason why the law of wills is written in three big volumes, and why different annotators cite many cases peculiar to their own edition, and why sometimes they cite the same case to contrary doctrines. A learned court in Pennsylvania recently held that a lease was a deed on account of the order of certain phraseology, and so the order of phraseology frequently defeats a testator's clear intention. As to trusts, while we acknowl confer so much discretion as to be illegal under our technical rules, yet if a testator clearly intends to confer an unlimited and absolute discretion we see no reason why he should not be allowed to do it, provided always that the object of the trust is lawful. While he is alive he may give lands and money in THE Hot number of fuck in breakers," repre HE last number of Puck contained a full-page senting a moribund old gentleman sitting at a table with a highly respectable and virtuous-appearing lawyer in the act of drawing his will, who has gone as far as "in the name of God, amen! I give, devise, bequeath" etc., when they are rudely inter-edge that a trust may be so loosely expressed, or rupted by a flock of harpy-will breakers, perched upon the window sill and croaking, "ha, ha, ha!" All of which is according to the popular notion of the morals of people who try to assert and vindicate their legal rights against an illegal disposition of property. Unlike most men a few months dead, Mr. Tilden is having a vivid remembrance on account of his will, and probably no will ever excited more attention and interest in this country. If Mr. Tilden drew his own will, it is highly probable that it will meet the fate of most of such documents where the man is his own lawyer. Our opinions are somewhat divided on the subject in question. We have no sympathy on the one hand with those who think that a rich man ought to be compelled to leave his property to relatives not his children, trust for the trustee to devote to the benefit of others in any way he chooses, and so long as the donor continues to live this is all right; but why should the mere fact that he dies work any change in his rights and powers? If Mr. Tilden did not want to leave his money absolutely to his relatives, and wanted to leave it to charity, and was not exactly sure what charities he would prefer, we see no reason — - although we see some law-why he might not leave his estate to some one to choose for him. Especially so, when he gives a life use of a handsome fortune to each of his relatives. We have not for a long time seen a decision on testamentary trusts which we have so much admired as that one in Connecticut, which upheld a trust for "poor, deserving, democratic widows," and that too in spite of the fact that our own widow, although certain to be poor and deserving, would not be democratic. nor on the other with those who look on a will as a sacred thing, not to be disputed, and on those who dispute it as infidels and sacrilegious. If a rich man prefers to leave his estate to large incorporated charities rather than to verify the adage that "charity begins at home "- especially when the "home" is several squares distant - we do not know why he should not. There is a great deal of sentimental nonsense about the claims of distant relatives, whose affection is usually born of and measured by the testator's means, and who, if he were poor, Mr. Roscoe Conkling has been vindicating those would probably be quite willing to let the public who bet on horse-races. The character of a witsupport him. A testator is ordinarily under no ness was impugned on the ground that he was acmore obligation to nephews and cousins and the like customed to bet on horse-races, and Mr. Conkling than he is to the heathen, and the insane, and the was constrained to contend that this, if not an aldestitute, and drunkards, and little children pining together admirable trait in human nature, was at for fresh air. At the same time, if a testator is too least a venial sin, and even an indication of a good wise or too penurious to employ a lawyer, or if he disposition. Mr. Conkling cited Fox as an examemploys one who makes a mistake there is certainly ple of a notorious gambler, who was "the best no legal reason, and we are not sure that there is loved man in Britain." But we suspect that even any moral reason, why his relatives should not get in Fox's day, when almost everybody gambled, he the estate if they can, provided always that they was loved in spite of rather than on account of his are made to pay their own costs if they do not suc- gambling. Even the sainted Washington gambled, ceed. Perhaps it would be a good plan to make but we have never seen the habit cited as one of his them also pay the costs of the other party. But virtues. Not that we regard horse-races as imcertainly their own. Then again we think there moral, or betting on them as a deadly sin. We are entirely too many artificial and arbitrary legal have attended such festivities ourselves, Parliament doctrines on the subject of wills. A will is noth- adjourns for the Derby, General Grant loved fast ing but a man's will his wish. horses, so did our beloved friend, Judge Folger, see what he means, they should really do what they and ex-Judge Tracey owns "trotters," and we are always pretending to do, and not always doing should not wonder if our friends, the equestrian - carry out his intention without regard to techni-judges of the Court of Appeals, speeded their cobs Where courts can VOL. 34 No. 22. |