a reply has been made on behalf of defendant. An objection was taken by the attorney-general to any one being heard for the defendant, on the ground that this' court ought not to recognize any one as counsel for him after he had voluntarily withdrawn himself from the jurisdiction of this court and the court in which the conviction was had and sentence pronounced. However, a brief was allowed to be filed on behalf of defendant, which has been since done.

In discussing the motion several cases were brought to our notice by the attorney-general. We have examined these cases and others not cited on the argument.

The earliest decision bearing on the point is in an anonymous case in Maine (see 31 Me. 592), decided in 1850. It is thus reported: "A defendant had been tried and convicted upon an indictment for an aggravated offense. He excepted, and was committed for want of sureties to appear at the law term, at which the exceptions were to be heard. Meanwhile he escaped. His counsel proposed to argue the exceptions. But the court declined to hear the case until the defendant should be again in custody." Sherman v. Commonwealth was decided by the Virginia Court of Appeals in 1858. See 14 Gratt. 677. In this case Sherman was convicted of a felony, and was sentenced to six years' imprisonment in the penitentiary. He obtained a writ of error from the Court of Appeals, which was directed to operate as a supersedeas to the judgment. While it was pending in the appellate court, Sherman broke jail and absconded. The attorney-general moved the court for a rule upon the prisoner to show cause why the court should not set aside the supersedeas, or postpone the hearing of the cause until the prisoner should return to the proper custody. This order was made, and the motion was afterward argued on behalf of the Commonwealth and the plaintiff in error. The court adjudged that so much of the order awarding the writ of error as directed it to operate as a supersedeas be discharged, and further ordered that the writ of error be dismissed on the 1st of May next, 1859, unless it should be made to appear to the court on or before the day above named that the plaintiff in error is in the custody of the proper officers of the law. This judgment was afterward approved by the same court in Leftwich's case, in which defendant had been convicted of a felony. See 20 Gratt. 723, decided in 1870.

The case cited from Massachusetts (Comm. v. Andrews, 97 Mass. 543) was decided in 1867. Andrews was convicted of receiving stolen property. Ho alleged exceptions, which were allowed, and was held in jail to prosecute. When the case was called in the Supreme Court, the attorney-general suggested that the defendant had broken jail and was at large, and asked that he should be defaulted, and the exceptions overruled without argument. The court heard argument on the motion by the counsel for defendant, who stated (as appears from the report) the points in his behalf with force and clearness; and we would infer, from what is stated in the report, that the motion was elaborately argued by the counsel who spoke for the defendant. The court granted the motion. We insert here the brief opinion:

"The defendant, by escaping from jail, where he was held for the purpose of prosecuting these exceptions and abiding the judgment of the court thereon, has voluntarily withdrawn himself from the jurisdiction of the court. He is not present in person, nor can he be heard by attorney. A hearing would avail nothing. If a new trial should be ordered, he is not here to answer further; if the exceptions are overruled, a sentence cannot be pronounced and executed upon him. The attorney-general has a right to ask that he should be present to receive the judgment of the court. 1 Chit. Crim. Law, 663; Rex v. Caudwell, 17 Q. B. 503.

So far as the defendant has any right to be heard under the Constitution, he must be deemed to have waived it by escaping from custody, and failing to appear and prosecute his exceptions in person, according to the order of the court under which ho was committed. Defendant defaulted. Exceptions overruled."

The People v. Genet, 59 N. Y. 80 (1874), is also cited. In this case the defendant had been convicted of a felony, and upon this conviction was committed to custody to await sentence pending an application for the settlement of a bill of exceptions. When this bill was presented for settlement, the court declined to settle it on the ground that the defendant had, since the conviction, escaped from custody; had absconded, and was then at large. An application was made to the Supreme Court for a mandamus to compel the trial court to settle and seal the bill of exceptions. The Supreme Court denied the application, and the matter was brought on appeal before the Court of Appeals. This court affirmed the order of the Supreme Court. The Court of Appeals held it essential to any step, on behalf of a person charged with felony after indictment found, that he should be in actual custody by being in jail, or constructively, by being let to bail. The court, per Johnson, J., said:

"The whole theory of criminal proceedings is based upon the idea of the defendant being in the power and under the control of the court, in his person. While the Constitution and the statute provide him with counsel, and the statutes give the right of appearance by attorney in civil cases, they are silent in respect to the representation of persons charged with felony by means of an attorney; and in regard to those charged with lesser offenses, the statutes permit them to be tried in their absence from court only on the appearance of an attorney duly authorized for that purpose. This authority, it has been held, must be special, and distinctly authorize the proceedings. People v. Petry, 2 Hilt. 525; People v. Wilkes, 5 How. Pr. 105. Even in the absence of statutory regulations, this rule has been enforced in the courts of the United States. United States v. Mayo, 1 Curtis' C. C. 433. In criminal cases there is no equivalent to the technical appearance by attorney of defendant in civil cases, except the being in actual or constructive custody. When a person charged with felony has escaped out of custody, no order or judgment, if any should be made, can be enforced against him; and courts will not give their time to proceedings which for their effectiveness must depend upon the consent of the person charged with crime." The opinion ends with this remark: "We think they (referring to the statutes of New York giving to defendant a right to make a bill of exceptions) do not require the courts to encourage escapes and facilitate the evasion of the justice of the State by extending to escaped convicts the means of reviewing their convictions."

In Smith v. United States, 94 U. S. 97 (1876), the plaintiff in error had been convicted of some offense (the report 'does not state the offense), and had sued out a writ of error to the United States Supreme Court to have the conviction reversed. Afterward he escaped from custody. The cause was docketed in the Supreme Court, December 29, 1870. It had been continued at every term up to the time of the decision, for the reason that no one had appeared to represent the plaintiff in error. At the October term, 1876, the court, on motion, dismissed the writ for want of prosecution, but on motion of counsel for the plaintiff, reinstated it, who moved to have it set down for argument. The court denied the motion, and ordered that unless the plaintiff in error submitted himself to the jurisdiction of the court below on or before the first day of the next term of the court, the cause is to be left off the docket after that time. The court held, in this case, that it was within its discretion to refuse

to hear a criminal case in error, unless the convicted party suing out the writ is where he can be made to respond to any judgment it might render. It thus declared it, per Waite, C. J.:

"In this case it is admitted that the plaintiff in error has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence; if we reverse it, and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may be a moot case." 94 U. S. 97.

In Queen v. Caudwell, 17 Q. B. 503 (November, 1851), the defendant had been convicted of perjury, and sentenced to seven years' transportation. Pigott, for the defendant, was about to move for a new trial. It appeared that the defendant was absent. Lord Campbell, C. J., said: "The defendant must be in court." Erle, J., concurred, and mentioned a like ruling by Lord Denman in a case where he (Erle) was for the defendant. Lord Campbell added: "This is peculiarly a case where the rule ought to be enforced, because the sentence has been passed on him, and is evaded by his absence. When he appears you may renew your motion." He referred to Rex v. De Baringer, 3 M. & S. C7. The motion was not heard, on the ground that the defendant was not forthcoming to meet his sentence. (Campbell, C. J.; Patterson and Erle, JJ., concurring.)

See, also, Queen v. Chichester, 17 Q. B. 514 (November 24, 1851), where on motion for judgment against defendant, who had suffered judgment to go by default on an indictment for nuisance, and without laches of the prosecution, the defendant having gone out of reach before he could be served with notice to appear for judgment, the court refused to pass sentence in his absence, although it appeared that the removal of the nuisance, which was to a public navigation, was important, and that the judgment of the court was wanted to authorize the abating it. The court held that the remedy was by process of outlawry.

In the case under consideration, has tho defendant waived the right to have his case considered and determined? This was held, in so many words, in the case from Massachusetts (Commonwealth v. Andrews, supra), and the same may be regarded as the rule laid down and acted on in the Virginia cases (Sherman's case and Leftwich's case, supra). The determination under the facts here presented not to hear the cases was considered within the discretion of the court- the discretion to be exercised to be a judicial discretion within limits defined by the law. In Genet's case, supra, the right to have a bill of exceptions settled was held not to exist on behalf of an escaped convict. In the case in Maine the court refused to hear the argument; and in the case from New York (59 N. Y. 80), the right to be represented by counsel, guaranteed both by the Constitution and statutes to defendants in cases of felony, is held not to exist when the defendant is not actually or constructively in custody, so that the sentence of the court can be enforced when pronounced. An exception to that rule is referred to in the opinion as to offenses less than felony.

The provision of the Constitution of this State, both in the first Constitution and that recently adopted, as regards this right, is, "to appear and defend in person and with counsel." The former Constitution had appended to this provision, "as in civil actions." That is omitted in the instrument of 1879. The language is suggestive, and indicates that the party charged is not allowed to appear and defend by counsel, but with counsel

the person acting as counsel to be present with the defendant, and not without him. In these words it seems as if the power to appear and defend,

at least in a case amounting to felony, does not exist in the counsel at all in the absence of the defendant. This view seems to be sustained by the statute of this State, and to be derived from a history of the law regarding counsel in criminal cases.

The history of the law as regards capital cases will be found in Blackstone's Commentaries. See Book 4, 355, 356. This author seems to doubt whether it was not allowed by the ancient law of England, and cites the Mirror, ch. 3, § 1. In a note it is said that the right of counsel to plead for them was first denied to prisoners by a law of Henry I (ch. 47, 48), which is construed as an erroneous interpretation of the law. However, this author states it is a settled rule at common law that no prisoner should be allowed a counsel upon his trial on the general issue in any capital crime, unless some point of law arose which was proper to be debated. The denial was on the ground that the judge was counsel for the prisoner - a right of but little worth when a Jeffries or Scroggs presided. The privilege was only accorded in the case of State criminals by the statute of 7 William III, ch. 3 (Proffatt's Jury Trial, § 205). This statute applied to all cases of such high treason as worked corruption of the blood, misprision of treason, except treason in counterfeiting the King's coin or seal; such prisoners were allowed to make their full defense by counsel, not exceeding two, to be named by the prisoner and appointed by court or judge. The same indulgence was extended by statute (20 George III, ch. 30) to parliamentary impeachments for high treason; “which," says Blackstone, were excepted in the former act."

4 Bl. Com. 356.

Prisoners under a capital charge, whether for treason or felony, upon issues which did not turn on the question of guilty or not guilty, but on collateral facts, always were entitled to the full assistance of counsel. Foster, 42, 232; Chitty's note on page above cited from Blackstone's Commentaries.

In misdemeanors tho defendant was always allowed counsel as in civil actions. 4 Bl. Com. 356. In all cases of felony defendants (by statutes 6 and 7 William IV, ch. 114, § 11) are allowed counsel.

It will be observed from the above that Blackstone refers to prisoners as being allowed counsel to appear and defend. He nowhere speaks of any such allowance to persons not in custody. How far is the right secured to the persons convicted or charged with public offenses by the statute laws of this State? See §§ 858, 859, 987, 1093, 1095, 1254 of the Penal Code.

It is apparent from an examination of the above sections that this right is confined to persons charged with a public offense only when in custody. In fact, courts have no jurisdiction over persons charged with crime, unless in custody, actual or constructive. It would be a farce to proceed in a criminal cause, unless the court had control over the person charged, so that its judgment might be made effective. It is true that an indictment may be found against one not in custody, but steps are directed to be taken in such case to secure his person (Penal Code, §§ 945, 979, 984); and unless an arrest is effected, the cause can proceed no further. The defendant is arraigned in person, and pleads in person (§ 977, Penal Code), unless in case of misdemeanor. Id. Every plea must be oral. Penal Code, § 1017.

By section 1253 of the Penal Code it is provided, as to criminal causes, that "the judgment may be affirmed if the appellant fail to appear, but can be reversed only after argument, though the respondent fail to appear," and by section 1255 that "the defendant need not personally appear in the Appellate Court." It may be urged that inasmuch as the defendant need not personally appear in the Appellate Court (§ 1255, Penal Code, ut supra,), he has a right to appear by counsel, whether he is in custody or not.

For the reasons here given, sustained by the cases cited, we think the defendant has no longer a right to appear by counsel when he has escaped from custody until he has returned into custody. By breaking jail and escaping, he has waived the right to have counsel appear for him. Commonwealth v. Andrews, 97 Mass., ut supra. In fact, his right to constitute counsel and invest him with authority no longer exists while his absence from custody continues.

We think it best, in view of all the circumstances, to direct that the motion to dismiss at once be denied; and although it is unlikely that he will ever surrender himself into custody, it is ordered that the appeal herein stand dismissed unless the defendant shall, before the first Monday of May, 1881, return to the custody of the proper officers of the law. See the orders in Sherman's case, 14 Gratt. 677; Leftwich's case, 20 id. 716; and Smith's case, 94 U. S. Rep. 97.

DEVISE TO CHILDREN TO BE ALIVE AT A FUTURE TIME-CONTINGENT

REMAINDER.

MISSOURI SUPREME COURT, APRIL TERM, 1880.

DE LASSUS V. GATEWOOD, Appellant.

A testator devised all his property to his wife "to hold at her will and pleasure during her natural life or widowhood, and at the death or marriage of my said wife it is my will that all my estate theretofore bequeathed shall be equally divided between my children that are alive, or their bodily children, to wit: (naming them), in equal share or proportion. And it is my will and pleasure that my said wife has the pleasure, and is permitted to give to any of my children property toward their portion when the arrive at age by having the same valued and taking their receipt for the same as so much toward their portion of my estate.' Held, that the children intended were such as should be alive at the death or remarriage of the widow, and not such as were alive at the time the will was made, and the estate devised to the children was therefore a contingent remainder. Held, also, that the power conferred upon the widow of giv ing to any of the children property toward their portion when they should arrive at age, did not affect the character of the children's estate, since it was altogether optional with her whether sho would exercise it, and it had nothing to do with the ultimate division of the property.

A contingent remainder is not a descendible interest.

THIS action, ejectment, was tried upon an agreed

statement of facts:

Ceran E. DeLassus died testate, previous to the fifth day of May, 1857, seised and owner of a large quantity of land, of which the land described in plaintiff's petition in this cause formed a part.

At the time of his death he left him surviving Elenore, his widow, and Mary E., Joseph, Francis, Levin, Camille, Felix, Eli, Numa, Mary J., Adolph, and Marion, his only children.

He left a last will and testament, executed on the 26th of March, 1856, which was on the fifth day of May, 1857, duly admitted to probate containing these provisions:

** (2) I will and bequeath unto my wife Elenore all my property, both real and personal, goods and chattels, moneys and effects, etc., to have and to hold at her will and pleasure during her natural life or widowhood. And at the death or marriage of my said wife it is my will that all my estate heretofore bequeathed shall be equally divided between my children that are alive, or their bodily children, to wit: Mary E. Picon, Joseph L. De Lassus, Francis C. DeLassus, Levi E. DeLassus, Camille J. D. DeLassus, Felix M. De Lassus, Eli M. DeLassus, Mary J. DeLassus, Adolph DeLassus, Numa J. DeLassus, and Marion J. DeLas

sus, in equal share and proportion; and it is my will and pleasure that my said wife has the pleasure, and is permitted to give to any of my children property toward their portion when they arrive at age by having the same valued and taking their receipt for tho samo as so much toward their portion of my estate. It is my bequest that should my said wife intermarry, that she take as her portion what the laws of the State of Missouri will allow her, and no more."

After the death of testator the son Felix, above named, married plaintiff, and afterward died intestate, leaving surviving an only child born of such marriage. Before the commencement of this action said child died intestate. The widow of testator never remarried, but died intestate before the commencement of the action.

SHERWOOD, J. (after stating the facts.) The learned author of the work on Descents says: "A contingent remainder is that part of an estate in fee bestowed conditionally upon one of two or more persons, which one is not certain; the rest of which is bestowed definitely upon some other person or persons named. The part not thus definitely disposed of to some particular person or persons, is provided to go to some other person or persons of two or more named, which of the two or more is left uncertain, and is to be fixed and made certain by succeeding events. The remainder itself is certain, but the person who is to have it is uncertain until it is determined by the events named." Bingham on Descents, 125.

Chancellor Kent says that the definition (of a contingent remainder) in the New York Revised Statutes, vol. I, 723, § 13, is brief and precise. A remainder, says the statute, is contingent whilst the person to whom, or the event upon which it is limited to take effect, remains uncertain. 2 Kent, 208, note.

Blackstone divides contingent remainders into two kinds: "When the estate in 'remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event." 2 Blackst. Com. 169.

This definition corresponds with that of Fearne, and falls within his fourth class of contingent remainders. 1 Fearne, 9.

I have been thus particular in the citation of textbooks, since it is agreed that the rights of the plaintiff to maintain her action depends upon whether the will in question created a vested or a contingent remainder in those who were to take upon the marriage or death of the widow. In a case decided a few years since in Massachusetts the will was as follows:

"I give, devise and bequeath to my present wife, Julia Ludington, all my estates, real, personal and mixed, to and for the uses and trusts following, to wit: In trust to use and enjoy the same as she now does, in taking care of and maintaining my children, so far as the sum will maintain them during the period of her widowhood, and at her decease or marriage, then further in trust to divide the same equally to and among such of my children as shall then be living, share and share alike. The names of my said children are George C., Ann L., Lucy M., Francis A. and Caroline E., to them and to their heirs and assigns forever."

The widow survived unmarried, and signed the deed, as did all the children named in the will except Ann L., who died some years after the testator, leaving one child, Lucy C. Hapgood, who was born a few weeks before the testator's death. If said Lucy C. has any interest in the premises, judgment is to be for the plaintiff, otherwise for the defendants.

Gray, J., says: "The devisee at the death or marriage of the widow 'to and among such of my children as shall then be living, share and share alike,' gives a contingent remainder to such of the children as shall

be living when the contingency of such death or marriage happens. In the next clause the testator gives the names of my said children, that is, all those already described as my children,' for he could not foretell which of them would be living at a future time; and this clause does not extend the effect of the previous one, by which such of them only as shall be living, upon the happening of the contingency, are to take. The further words, to them and their heirs and assigns forever, do not describe the devisees, but the quantity of their estate; or in other words, merely shows that the estate to be taken by virtue of the previous words in an estate in fee. The daughter who died after the testator and before his widow, therefore took no estate, and none passed to her child." Thomson v. Ludington, 104 Mass. 193. So, also, in Olney v. Hull, 21 Pick. 311, referred to in the case just cited, the use of his real estate during widowhood was denied to the wife of the testator, and then this clause was added: "Should my wife marry or die, the land then shall be equally divided among my surviving sons," etc. And it was held that the remainder to the sons was contingent, until the marriage or death of the widow; and that upon her death the estate vested in a son who was then living, to the exclusion of the heirs of another son who died before the widow, but after the death of the testator. Morton, J., observing: "He says, Should my wife marry or die, the land then shall be equally divided among my surviving sons.' The time when the estate was to be divided among the sons is certain and definite. It was when the intermediate estate terminated at the death or marriage of the tenaut. Among whom was it to be divided? Not those who survived any prior event, not those who survived the father, but those surviving that particular event; those surviving the death or marriage of the widow."

In Emison v. Whittelsey, 55 Mo. 254, a similar adjudication was made. Mr. Justice Napton, speaking for the court, said: "This was a conveyance to the mother, and upon her death the remainder was conveyed to her children who survived her, and the children of such of her children as were dead, at her decease. At the time of the deed it was impossible to say that any one was in existence who would take the remainder. No one could tell that any of the children would survive the mother. It was therefore a contingent remainder." Among the authorities cited in the last-named case, and in support of the doctrine there announced, was that of Jones v. Waters, 17 Mo. 589. There the land was devised by the testator to his wife for and during her natural life, and after her death to descend to her children by him, equally share and share alike," and it was held that this created a vested remainder in the children, and that one of the sons who predeceased his mother had an interest in the estate devised which was subject to sale. There were several children of the marriage at the time of the execution of the will and the death of the testator.

But in delivering the opinion of the court in that case Judge Gamble drew the distinction between that class of cases and one like the present, for he, is careful to say: "Here the devisees in remainder are ascertained by the will; and they are to have the enjoyment of the estate as soon as the estate for life ends. The devise of the remainder is not to such of the children as may be alive at the death of the mother, but to all the children of the marriage. There is no event or contingency interposed between the death of the mother and the enjoyment of the estate by the persons in remainder, but immediately on her death it descends to them. The law favors vested estates, and no remainder will be construed to be contingent which may consistently with the intention be deemed vested." The clear intimation in that case is that if the devise of the remainder had been to such of the children as should

be alive at the death of the mother that there the remainder would have been contingent.

Taking this view of that case it is not at variance with the Massachusetts cases already cited.

In Anbuchon v. Bender, 44 Mo. 560, it was held that under a covenant to stand seized for the use of the covenantor during his life and after his death his title to vest in his five children who were named, there the children took a vested remainder, but that the remainder would have been contingent had the words respecting the children been added: "As shall be living at the time of his death." Let us apply in the present instance the principle to be deduced from the foregoing authorities and cases cited.

Here the testator says: "I give and bequeath unto my beloved wife, Elenor DeLassus, all my property, ctc., etc., to have and to hold at her will and pleasure during her natural life or widowhood. And at the death or marriage of my said wife it is my will that all my estate heretofore bequeathed shall be equally divided between my children that are alive, or their bodily children, to wit: (naming the children) in equal share or proportion."

The question at once arises, to what period of time do the words "that are alive" refer? Obviously, I think, to the death or marriage of the wife. And I am of this opinion for these reasons: one, that the will speaks from the death of the testator, and not from the time of its execution; another, that it would be most unreasonable to suppose that the testator having mentioned his children by name did not know that they were then alive. And yet we must indulge such unreasonable supposition if those words are to be referred to the time the will was executed, and not to a future period when the death or the marriage should occur. If those words refer to the time the will was being drawn, then they are absolutely meaningless and utterly destitute of any intelligent expression. If, on the contrary, we judge them to refer to the future event of either death or marriage, they become at once significant.

And it would seem beyond question, both from the grammatical construction of the sentence as well as from other considerations already adverted to, that those words can be referred only to the event in the future which was to cause the termination of the particular estate and the commencement of that in remainder.

When is the estate to be divided?
At the death or marriage, etc.
Among whom divided?

The children "that are alive," or their bodily children. Alive, when?

When the division of the estate is to occur.

It appears very plain that the above are the only answers that can with any show of reason be returned to the foregoing questions. If this be true, then the will under consideration is to be held as bearing the same meaning as if the words composing it were transposed and it read thus: It is my will that all my estate heretofore bequeathed shall at the death or marriage of my said wife be equally divided between my children that are alive or their bodily children.

If these views are correct, if the words "that are alive" refer to the future, refer to the time when the particular estate was to cease, and the estate in remainder was to take effect, then it must needs follow that those words are the legal equivalent of then living, in which case they come within the rule of the authorities already quoted, and the remainder created by the will must be held a contingent, and not a vested oue, for until the death or marriage of the tenant of the particular estate it was impossible to ascertain who of the childreu of the testator or their bodily children would be alive to take in remainder.

The conclusion just announced is not affected by reason of the fact that the widow was permitted in her discretion to give to any of the children property toward their portion when they should arrive at age, since by the terms employed it was altogether optional with the widow whether she should exercise the power thus conferred or not, and had nothing to do with the ultimate division of the testator's estate.

In Olney v. Hull, supra, it was provided that each son should, on coming into possession, pay sixty dollars to the daughters of the testator, but this was held not to alter the nature of the interest devised.

As the remainder in this case was contingent neither Felix M. DeLassus nor his bodily child, William A., had any descendible interest which could pass to the plaintiff.

Bingham on Descents, 222, 232: and so she cannot maintain her action, and judgment reversed. All con

cur.

NOTE.- An interesting case involving the doctrine of contingent remainders was decided on the 5th of July last by the Chancery Division of the English High Court of Justice (Re Finch; Abbis v. Burney, 43 L. T. Rep. [N. S.] 20). In this case testator devised freeholds to trustees upon certain trusts during the life of H. M., and after the death of H. M. upon trust to convey to such son of W. M. as should first attain twentyfive. Testator died in 1830. A son of W. M. attained twenty-five in 1836 and died in 1865. H. M. died in 1877. Held, that the limitation to the son of W. M. was a contingent remainder which had vested in him on attaining twenty-five. Another point passed upon in the same case was this: Testator had directed that such son of W. M. as should become entitled under his will, should within two years after becoming so entitled assume the testator's name and arms, and that in case of refusal or neglect, then after the expiration of such two years his interest should be void and go over. W. M.'s son had not assumed the testator's name and arms. Held, that "entitled" meant "entitled in possession," and that the estate had not been forfeited.-[ED. ALB. L. J.

NEW YORK COURT OF APPEALS ABSTRACT.

FRAUDULENT CONVEYANCE -- SETTLEMENT BY HUSBAND ON WIFC-WHAT DOES NOT CONSTITUTE FRAUD.-A husband is authorized to make a settlement of a suitable amount upon his wife from his property if he has no dishonest purpose in view; and such settlement the law will protect. A husband in prosperous circumstances and financially unembarrassed, owned real estate which sold for $17,200. and unproductive personal property worth between $4,000 or $5,000. He purchased a dwelling-house for $16,300 and procured the deed to be executed in his wife's name. He paid on the purchase $10,600 from moneys obtained from the sale of his real estate, leaving the balance on mortgage upon the property conveyed to his wife. He at the time owed not to exceed $2,788.18. He used the balance of the moneys realized from the sale of his real estate in paying for stock and fixtures for a new place of business he had hired, in his business and in the purchase of some lots in a village adjoining the city where he resided. He afterwards paid in full every debt which he had contracted before the title to the property purchased was vested in his wife. The purchase of the house was made openly and without any concealment, the deed thereof immediately placed upon record; there was then no prospect or probability of financial disaster, and it did not appear that subsequent embarrassment and final insolvency in which the husband became involved were contemplated or expected when the conveyance was made to

the wife. For three years ho continued prosperous in good credit and standing financially in pursuit of his previous business and without having incurred any extraordinary or unusual risks. He engaged in no speculation except the purchase of the village lots named, in which he disposed of some of his unproductive personal property at a large price and which lots brought nearly four-fifths of their purchase-price upon an execution sale. He became insolvent from reverses, without intent to defraud and without fault except a want of foresight. In an action by a judgment creditor of the husband whose debt was contracted more than three years after the conveyance to the wife, to set aside the conveyance, held, that such conveyance was not fraudulent as to creditors. There was no evidence to show a fraudulent purpose in making it, and the settlement upon the wife was not unsuitable or disproportionate to his means. The cases of Savage v. Murphy, 34 N. Y. 508; Case v. Phelps, 39 id. 164; Carpenter v. Roe, 10 id. 227; Shand v. Hanley, 71 id. 319; Mullen v. Wilson, 44 Penn. St. 413, distinguished. Cases cited, Dunlap v. Hawkins, 59 N. Y. 342; Jencks v. Alexander, 11 Paige, 623; Van Wyck v. Seward, 6 id. 62; Jackson v. Post, 15 Wend. 588; Phillips v. Wooster, 36 N. Y. 412; Bank of U. S. v. Housman, 6 Paige, 526; Babcock v. Eckler, 24 N. Y. 623. Judgment reversed and new trial granted. Carr v. Breese et al., appellants. Opinion by Miller, J. [Decided Sept. 21, 1880.]

PARTNER

PARTNERSHIP AGREEMENT BETWEEN AND THIRD PERSON-SUB-PARTNERSHIP-SUB-PART

Ho

NER NOT LIABLE AS PARTNER.— Strang, Pratt and Ryley formed a partnership in the wool brokerage and commission business. At the time, a proposition was made to Snyder to become a partner in the firm. would not do so, but an agreement was made, with the knowledge of all the partners, between Ryley and Snyder, whereby Snyder was to take a share of Ryley's interest, viz., one-third of Ryley's share of the profits and losses in the business. No capital was contributed by any one, the business requiring none. Snyder, who was a wool buyer for certain mills, aided the firm by purchases and consignments of wool, but took no part in the management of the business and was not held out as a partner. Held, that Snyder did not become a partner in the firm of Strang, Platt & Ryley, as he had no interest in the profits of the firm as profits; but a right simply to demand of Ryley that he should account to him for one-third of his profits, accompanied with an obligation to pay one-third of his losses. He had no joint proprietorship with the members of the firm in the profits before division; was not entitled to an account as partner, and had no lien on the partnership assets. Grace v. Smith, 2 Wm. Blacks. 998, followed by Waugh v. Carver, 2 H. Bl. 235, decides that participation in profits makes one not ostensibly so a partner. Cox v. Hickman, 8 H. L. Cas. 301, impugns if it does not overthrow this doctrine, and it held that those who share in the profits of a business are not liable as partners unless they carry on the business personally or others carry it on as their real or ostensible agents. Snyder was not liable under the doctrine in either of these cases. In this State the earlier English cases are followed. See Leggett v. Hyde, 58 N. Y. 272. But the participation in the profits of a trade which makes a person a partner as to third persons is a participation in the profits as such, under circumstances which give him a proprietary interest in the profits before division, as principal trader (Ex parte Hamper, 17 Ves. 404; Story on Part., § 49; Parsons on Part. 74), and the right to an account as partner and a lien upon the partnership assets in preference to individual creditors of the partner. Champson v. Bostwick, 18 Wend. 184; 3 Kent's Com. 25; 1 Smith's L. Cas. 984. Numerous exceptions to the rule have been