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The Albany Law Journal.

ALBANY, JANUARY 7, 1893.

CURRENT TOPICS.

NCIENT Ithaca was the residence of the wisest

of the Greeks, and in modern days and in this State a town of that name has been selected for the site of one of the greatest educational institutions of our country - Cornell University. A recent visit to that university was much enjoyed by the writer, who found much to admire and commend, especially in the foundation and administration of the law school. This school is only five years old, but has two hundred scholars at present (including two women), and is housed in a new and superb stone building expressly and conveniently designed for its purposes, directly opposite the magnificent library building bestowed on the university by Mr. Sage, the father of our townsman, Dean Sage. One large room in this building is preparing for the accommodation of the Moak library, so generously given to the university by the widow and daughter of the late Judge Boardman, the first dean of the law school and a most devoted friend to it. The school library now numbers some twenty thousand volumes. The university buildings are beautifully situated on high ground overlooking the lake and commanding a pleasant view for many miles. Considering the fine apartments allotted to the law professors in the new building, and their pleasant cottage residences in the neighboring grounds, the life of these gentlemen may be regarded as almost an ideal one. The audience of two hundred students was extremely attentive and appreciative, and quite devoid of that horse-play and grotesque smartness which too often characterize the inspired and prematurely wise college youth. The school is now under the general charge of Judge Finch, of the Court of Appeals, who delivers, among other subjects, an admirable course of lectures on the statute of frauds. The associate dean is Mr. Harry B. Hutchins. The other resident professors are Messrs. Charles A. Collin, Charles E. Hughes and William A. Finch, together with Moses Coit Tyler, VOL. 47- No. 1.

professor of American Constitutional History; Herbert Tuttle, professor of English Constitutional History, and Brainard G. Smith, associate professor of Elocution and Oratory. Special lectures are delivered by Hon. Daniel H. Chamberlain, Judge Alfred C. Coxe, Judge Irving G. Vann and Messrs. Albert H. Walker, John Ordronaux and Hon. Goodwin Brown. This is a distinguished array of talents. Mr. Chamberlain lectures on constitutional law, Judge Coxe on admiralty, Mr. Walker on patents, Mr. Ordronaux on medical jurisprudence, Judge Vann on insurance and Mr. Brown on extradition. These gentlemen are recognized experts on these respective subjects. Mr. Collin is one of the commissioners of statutory revision in this State and Mr. Brown is now on the State lunacy commission. The resident lecturers are men of exceptional acquirements and tact, and spend all their time in earnest and judicious work. Cornell University is a favored place for the study of law.

Our distinguished citizen, Gen. Curtis, has made an excellent speech in Congress in support of a measure for the abolition of the punishment of death for the violation of any provision of the Federal statutes. In looking over the list of offenses now punishable capitally under the Federal laws, in addition to murder, piracy and treason, we find rape, destruction of a vessel at sea by the owner, laying violent hands on a commander by a seaman, and arson of a vessel of war or a dwelling-house within a fort. These are unusual and unreasonable severities. It appears that capital punishment has been abolished for many years in five of the most orderly States of the Union. Gen. Curtis says:

"In every country in Europe the abolition of the death penalty and the substitution of milder penalties for the punishment of crime has been followed by a diminution of such offenses and increased convictions in proper cases. The revision of the criminal laws of the several States in this country, which has been going on during the last century, has been followed by like results as to homicides as well as minor crimes. Michigan led in 1847 with total abolition. In 1848 her life convicts constituted 2.71 per cent of her prison

population. In 1884, as shown in the official reports, life convicts had decreased to 43-100 of 1 per cent of her prison population. Rhode Island abolished the death penalty in 1852, and Wisconsin in 1853. Iowa abolished

it in 1872, when her homicidal crimes averaged 1 in 800,000 of her population; after six years under this beneficent law her homicidal crimes averaged only 1 in 1,200,000 of her population. Then, in a general revision

of her criminal laws, she gave to juries the right to affix the death penalty or imprisonment for life for murder; and since then she has had but two executions, but homicides have increased faster than her population, so that the wisdom of repealing her excellent law of 1872 is not apparent. Maine had for many years practical abolition of the death penalty, although its provision was retained in her laws, which required a year to elapse between conviction and execution, and then to be ordered by the governor. The provision for execution was not mandatory, and few executions were ordered. In 1876 her Legislature abolished capi

tal punishment. In 1883, moved to action by the maddened passion of a life convict, who killed a keeper in prison, her Legislature restored the death penalty by a barely constitutional vote in each house. In 1887 her Legislature again abolished the penalty of death with a two-thirds vote in one house and a three-fourths vote in the other."

In Texas, and possibly in some other States, as well as Iowa, the jury have power to define the punishment, and in a number of States, we believe, capital punishment can be inflicted only after a certain prolonged period and upon the warrant of the governor. This latter provision saved the life of Baldwin, in Kansas, a few years ago, who was finally pardoned, on the ground that there was not sufficient evidence upon which to convict him! General Curtis is right. It is as illogical for society to kill a citizen for killing another as it would be for a father to say to his little son: "It is wrong for you to strike anybody, and if you strike anybody I will strike you."

In a recent divorce case in the Court of Common Pleas of the city of New York Judge Pryor remarked: "An infant child is issue of this marriage, and we cannot tolerate that its character shall be sullied and its career clouded by a judicial conviction of the father, on such evidence, of infidelity to the most sacred of obligations. Since the 'common-law marriage' so-called - another name for concubinage is obtrusively prevalent in the community, and our calendars are crowded with applications for divorce, it behooves us not to relax the stringency of the rules which, in the interest of good morals and social security, have been prescribed by law for the safeguard of the sanctity and stability of the marriage relation." Every lawyer will sympathize with this excellent judge's anxiety to preserve the marriage relation from easy or trivial dissolution, but many will not agree with him that the "common-law marriage so-called is obtrusively prevalent in the community." On the contrary, we believe it to be very rare; sometimes in the interest of an honest claimant, and occasionally painfully brought to light by the attempt of some adventuress - too frequently in the hands of unscrupulous or careless lawyers — to fasten her claim as a wife upon the estate of a man to whom she was only mistress. The truth is that

almost every honest and respectable woman will demand a public marriage, and generally with the sanction of the church; and women of a different kind seldom concern themselves with any form of marriage whatever. No doubt the doctrine of the common-law marriage has sometimes been the vehicle of fraud and imposition, and doubtless on the other hand it has sometimes served to defeat the base purpose of the seducer. It would undoubtedly be better for the common interests of society to demand, as the conference of commissions on uniformity of legislation has recommended, the execution of a written contract of marriage where people do not choose to celebrate their marriage by the medium of priest or magistrate.

Let no one suppose that we have read much of the proceedings in the Briggs' heresy trial. They arc as unimportant, or at all events as uninteresting as the history of the Saxon heptarchy's wars, which we believe have been compared to the fights of crows and kites. It may however be remarked that Lawyer McCook has probably found Minister Briggs a tough nut to crack. We infer so from the minister's characterization of the lawyer's argument, which is as follows:

"Mr. McCook gave you an argument of more than two hours, which was forceful, plausible and specious, but which for the most part soared in the regions of abstract thought, far above and beyond what the prosecution, to use the language of an eminent member of the court, "were put up to do." I listened to the argument with the closest attention. Its subtle analyses of hypothetical premises, its simple-minded substitution of inferences from the language of the defendant for that language itself, its delicate balancing upon imaginary lines stretched from speculative piers, the cool assumption of its logic and the condensed heat of its rhetoric, all remind us of the intellectual processes of a scholastic theologian rather than of a law. yer or a man of affairs. This argument will receive the attention it deserves."

The programme for the annual meeting of the New York State Bar Association, published in this issue, is both extensive and varied, as well as relates to both the intellectual and physical entertainment of its members. The delivery of addresses in the evening instead of in the afternoon, as heretofore, will doubtless bring out a very considerable audience, and the holding of the business meeting during the day preceding the reception by the governor, will tend to bring together a large number of its members. It would now appear that at least one of the subjects for discussion will be disposed of, viz., the date for holding the Constitutional Convention. There. seems to have been a unanimity of sentiment throughout the State in favor of the postponement of the election of delegates until November, and the Legislature has acted wisely in at once amending the law in that respect.

Occasionally we see something in the Sun that isn't true. The Sun says: "Judges of the higher courts of this city assiduously frequent the Manhat

tan Club and the rooms of the Bar Association, the former for pleasure, the latter for study. The judges are ex-officio entitled to the use of the law library of the Bar Association, the best in the United States after the Congress library, and on holidays, alas ! even on Sunday, the judges delve there for law. There is no quieter or more satisfactory working place in town than the Bar Association's rooms, and it is a distinguished company that gathers there." The Bar Association is not the best after the Congress library. It is not so large as, and certainly no better in quality than, the State library. But why should judges prefer the Manhattan Club? We do hope it is not on account of its celebrated cocktails, of which we have often heard but which we have never imbibed.

IN

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NOTES OF CASES

'N Brennan v. Winkler, Supreme Court of South Carolina, November 3, 1892, it was held that a trust for the education of young men for the priesthood, or to educate individual orphan boys or orphan girls," is void for uncertainty, and that parol testimony to show that testatrix prepared her own will, that she had been reared as a Catholic, and by the use of the words "priesthood" probably meant that of the Catholic Church, was properly excluded. The court said: "The rule certainly is that the intention of a testator must be disclosed by the will itself, with possibly two exceptions: In the cases of a latent ambiguity, and of explaining the particular language used in the instrument. We are unable to see that either of these exceptions are applicable here. We can conceive of no parol testimony admissible in this case, unless it may possibly be such as is allowed by the fifth rule of Mr. Wigram, which permits extrinsic parol evidence 'as to the circumstances of the testatrix and her family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testatrix; that is to say, to enable the judge to put himself, as near as possible, in the place and situation of the testatrix when she wrote her will. It may be that such proof might possibly have shown that she prepared her own will; that she had been reared under the protection and teachings of the Roman Catholic Church; that she was a member of that church, and by the use of the word 'priesthood' probably meant that of the Roman Catholic Church. But if so, we do not think that such testimony could have had the least effect in producing a different interpretation of the will from that reached by the circuit judge.

* * *

If the trust claimed to be declared by the testatrix had been a private trust there could have been no doubt whatever as to its being invalid; but it is insisted that it is a public 'charitable,' as distinguished from a private, trust, and as such, although precatory, and somewhat indefinite, it will be sustained and administered by our courts. It is true that under the English practice one of the distin

* * *

guishing elements of a 'charitable,' as compared with an ordinary, trust, consists in the generality, indefiniteness and even uncertainty which is permitted in describing the objects and purposes or beneficiaries. But Mr. Pomeroy (2 Eq. Jur., § 1029) says: 'With regard to the extent to which 'charitable trusts' have been adopted, and the jurisdiction over them exercised, in the various States, there is the utmost conflict of judicial decision. It seems possible however to arrange the different States according to three general types, which shall represent, with reasonable accuracy and certainty, the existing condition of law upon the subject in this country. He places South Carolina in the second class. This class includes the larger portion of the States in which charitable trusts exist under a somewhat modified and restricted form. There is not a little divergence in the views maintained by the courts of the various States composing this class. In a few of them the statute of Elizabeth is held to be in force (not in this State), or one similar to it has been enacted. In a majority of them the doctrine of charitable trusts, as a part of the ordinary jurisdiction and functions of equity, has been accepted in a modified and limited form. Such trust; are upheld when the property is given to a person sufficiently certain, and for an object sufficiently definite. With regard to this element of certainty in the trustee and the objects there is much diversity of opinion. The doctrine of cy pres is generally rejected, etc. As to this element of certainty or uncertainty, so far as I have been able to discover, one of the main tests seems to be this, viz., that the court will not declare the trust, unless it sufficiently appears that the donor designed to establish a charity, and the purpose is indicated with sufficient clearness to enable the court, by means of its settled doctrines, to carry the design into effect. If the trust claimed here were established, could the court, according to its established doctrines, carry the design into effect? The power of using the money for the education of young men for the priesthood, whether of the Roman Catholic or other priesthood, is absolutely unlimited by country or latitude. From the nature of the trust claimed it would not be under the administration of the court at all. See Pritchard v. Thomson, 95 N. Y. 76; Holland v.. Alcock, 108 id. 312; Nichols v. Allen, 130 Mass. 211; Fosdick v. Town of Hempstead, 125 N. Y. 581; McCreary v. Burns, 17 S. C. 50."

In Society of the Most Precious Blood v. Moll, Supreme Court of Minnesota, November 12, 1892, it was held that a devise of real estate describing the devisees only as "those members of the 'Society of the Most Precious Blood' who are under my control, and subject to my authority, at the time of my death," is void because not pointing out with sufficient certainty the persons who are to take. The court said: "Lt the time of executing the will and of the death and of the entry of said decree, and until the subsequent adoption of the articles of incorporation,