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THE ALBANY LAW JOURNAL:

A WEEKLY RECORD OF THE LAW AND THE LAWYERS.

The Albany Law Journal.

ALBANY, JANUARY 4, 1896.

Current Topics.

[All communications intended for the Editor should be ad

The portion of the report treating of practice in other States will serve as a valuable index to the revisers of procedure, as indicating the statutes of other States of the Union, referring to the different enactments and giving a summary of those States which have codes and those still using the common law method of

dressed simply to the Editor of THE ALBANY LAW JOURNAL. procedure.

All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

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A further examination and study of the report impresses us very favorably with the manner in which the commissioners have performed the duty imposed upon them "To examine the Code of Procedure of this State and the codes of procedure and practice acts in force in other States and countries and the rules of court adopted in connection therewith," so as to enable them to discharge the duty incumbent upon them by the act, "To report thereon to the next Legislature in what respects the civil procedure in the courts of this State can be revised, condensed and simplified." The report indicates careful and laborious study of the history of procedure and gives a summary of the practice in other states and also of the procedure in other countries, followed by a review of procedure in this State, and concluding with a recommendation for a general revision of the Code of Procedure, following substantially the recommendations made on behalf of the committee of the Bar Association last year, out of which the appointment of the present Commission arose.

The historical review is carefully compiled and will be valuable for reference upon that subject.

VOL. 53 No. 1.

The body which shall ultimately take up the matter of revision, will find it necessary and desirable to make a close and careful study of each one of the codes referred to with a view to ascertaining in what respect it may contain provisions desirable to be introduced in our own procedure. The same is true with reference to the procedure in other countries, more particularly that in England, where, under the Judicature act, as amended, it has been found the business of the courts can best be carried on under a brief statute, supplemented by rules framed by the courts or under the direction of the judges.

The conclusion at which the Commissioners arrived, "That the history of the development of civil procedure in this State shows that the time has arrived when it will be convenient and for the public interest to undertake a re-arrangement and more thorough classification and a revision of our entire Civil Procedure," is in line with the views of the profession as expressed during the past three or four years, and follows the suggestions made by the State Bar Association and New York City Bar Association, as to the necessity for amendment and revision.

The statement of general statutes which should be included in a practice act, is also valuable as suggesting the manner in which the different statutes relating to practice are scattered through the Session Laws.

It will be part of the work of the revisers to collate these statutes and embody them in a completed Code.

We may, therefore, regard it as substantially settled that a revision of the Code of Procedure is not only desirable but necessary and that it will be undertaken at an early day. The question which presents itself to the profession, therefore, is as to the manner in which the work shall be undertaken and to whom shall be confided the selection of proper persons to carry it on in accordance with the wishes of the bar. The preliminary work has, as we have seen, been carried on by the Commissioners of the Statutory Revision, but it would evidently be casting upon them a burden which they ought not to be asked to bear to place in their hands a revision which must necessarily extend over a period of two or three years, and which should be carried on in a most careful manner to the substantial exclusion of all other work by those who take the matter in hand.

Still another reason of a public nature will almost necessarily prevent the work from being carried on by the Commissioners of Statutory Revision, namely, the great necessity for an immediate completion of the work of revision of the General Statutes. This, together with the labor of drafting and revising bills presented to the Legislature, will make it a practical impossibility for the present Commission to undertake the work.

In view of these facts, it is a question worthy of very serious consideration whether the supervision of the work should not be committed to such members of the courts as may be thoroughly competent, by reason of their learning and experience, to suggest what is most desirable by way of amendment and revision. No body of men can be so competent as that selected from the judges of our highest courts to determine whether the Code should contain a complete system of practice as is attempted in the present Code, or whether the practice act should contain the more general rules and principles, to be supplemented by rules of court as in England and in some of the states. It is quite true that the work of revision could not be performed by the members of the court, but they certainly could supervise whatever might be done, and select such persons as would be

most proper, in their opinion, for that purpose, having also power of removal and change in such a way as to enable them to secure the service of members of the profession best qualified for the work.

This question is an important one to the profession, since it is imperative that the revision should be carried on in the most thorough manner by persons most competent for the task, and that when completed it shall be not only the most perfect Code of Procedure in existence, but as nearly as possible an ideal system of practice.

The Court of Appeals handed down decisions in all cases argued before it on Thursday, December 19, so that the court, with the two new judges on the bench, will commence fresh on the new year. Among the important cases which were decided was that of Losey v. Stanley, in which the court, among other things, holds that future legal estates in lands not covered by a trust, but created to take effect in possession on the termination of a prior trust estate for life, are not within the provisions of the Statute of Uses and Trusts declaring that every valid express trust shall vest the whole estate in the trustees. Another important point decided was that a court of equity has no inherent power to direct a mortgage of the real property of infants; its power in this respect being purely statutory. The opinion seems to be especially important and to involve many interesting questions, while the opinion of Judge Andrews is scholarly and succinct. The material part of the decision is as follows:

This appeal presents a question of broader interest than attaches merely to the pecuniary rights of the parties to the litigation. It involves a consideration of the power of the Supreme Court in dealing with the real property of minors, and the extent of its jurisdiction in directing a sale or mortgage of their property. By the will of Elizabeth J. Stanley a trust was created in the real property of which she died seized, during the life of her son, James W. Stanley, for his benefit, with remainder to his children or their descendants living at his death, and in default of such issue to certain other specified devisees. James W. Stanley was unmarried at the death of his mother and the remainder to his children was contingent

ted.

until the birth of issue. He subsequently married and there were two children of the marriage (the infant defendants) who were living when the mortgage in question was execuUnder the will, the first born child of James W. Stanley took at its birth a vested estate in remainder in the land devised, subject to open and let in after-born children as they severally came into being, and such vested remainder became a fee simple absolute in the children living at the death of their father. (1 Rev. St. 723, § 13; Moore v. Little, 41 N. Y. 66; Williamson v. Berry. 8 How. [U. S.] 495.) The estate in the children of James W. Stanley was a legal estate. The estate of the trustee was for the life of James W. Stanley and terminable at his death. The will created two distinct legal estates in the devised property, viz., an estate in the trustee for the life of the beneficiary, with the right of possession and to receive the rents and profits during the continuance of the trust, and an estate in remainder which became vested on the birth of children as before stated. The trustee had no power over the estate in remainder except such as may have been given him by the will. He could not sell or incumber it or in any way by his own act alter or affect the interests of the remaindermen unless authorized by the will. The provision of the Statute of Uses and Trusts (1 Rev. St. 729, §60), declaring that every valid express trust shall vest the whole estate in trustees, is by settled construction limited to the trust estate, and has no application to future legal estates in lands covered by the trust, to take effect in possession on the termination of the trust. The trustee in the

present case had an estate for the life of James W. Stanley, and it was this estate and this only which vested in the trustee. (Stevenson v. Lesley, 70 N. Y. 512.) The will of Elizabeth J. Stanley conferred on her executor and trustee a power to sell the real estate devised, if deemed by him advisable so to do for the purpose of investment of the proceeds. gave him no power to sell the lands for the payment of debts, or for any other than the specified purpose. It conferred no power to mortgage, and it is not claimed nor could it be reasonably contended that the mortgage in question can be sustained as an exercise of the

It

power of sale contained in the will. (Albany Fire Ins. Co. v. Bay, 40 N. Y. 9; Bloomer v. Waldron, 3 Hill, 361; Rogers v. Rogers, 111 N. Y. 228.) When, therefore, theapplication for leave to mortgage the premises in question was made to the court by James W. Stanley, October 15, 1888, the infant defendants were vested with a legal estate in the remainder in the premises, and the trustee had no power under the will to sell or otherwise affect or incumber their estate for the purposes specified in the application. We shall pass without comment the question urged upon us, that the appointment of James W. Stanley, the sole beneficiary of the trust, as the trustee, was unauthorized and void. We entertain some doubt whether a trust is void in its inception where the instrument creating the trust appoints the sole beneficiary the trustee, but we have no doubt that the appointment of the beneficiary as trustee by the court, on the death or resignation of the testamentary trustee, does not extinguish the trust. The incompatibility of the two relations united in the same person is evident. Whether a trust so constituted in the first instance may not be sustained, leaving it to the court to substitute a competent trustee, will need consideration when the question directly arises. (Rogers v. Rogers, supra; Woodward v. James, 115 N. Y. 346.)

We come to the main question, and that is whether the court, either by virtue of an inherent or statutory power, could, upon the application made in this case, authorize James W. Stanley to bind the estate of the infant remaindermen by mortgage. That the Supreme Court, acting as a court of equity, possesses an inherent jurisdiction for some purposes over the persons and estates, real and personal, of minors, cannot, we think, be successfully controverted. The origin of the jurisdiction of the Court of Chancery in England over the persons and estates of infants is involved in some obscurity. The better opinion seems to be that it grew out of the transfer by the crown to the chancellor of the supervision theretofore exercised by the king as parens patriæ over persons who by reason of non-age, were incapable of acting for themselves. (See 2 Sto. Eq. Jur. § 1327, et seq.) The chancellor intervened for the protection of minors and their property, and the precedents

26; Jenkins v. Fahey, 73 id. 355, 361.) The obiter remarks of Ch. Kent on this subject in Matter of Salisbury (3 Jo. Ch. 348) and in Hedges v. Riker (5 Jo. Ch. 163) are contrary to the general current of authority. The text books are explicit in stating the modern doctrine on the subject. (Pom. Eq. Jur. § 1309; Bispham's Eq. $549.) The question of the inherent power of a court of equity to order a sale of an infant's real property, upon the theory of a supposed benefit to him is quite distinct from its acknowledged power in the enforcement and protection of trusts and from the power of courts in the exercise of their ordinary jurisdiction to establish or enforce rights of property between parties to a litigation, whether infants or adults.

Having reached the conclusion that the

inherent jurisdiction of the court over the estate of the infant defendants, it remains to consider whether it can be sustained under any statutory authority. The legislature possesses whatever power as parens patria was in England lodged in the sovereign over the estates of in

are numerous where the chancellor authorized the application of their property for their education and maintenance, and, at times when the interests of the infants seemed imperatively to require it, permitted even the capital of a fund belonging to the infants to be anticipated or broken in upon for such or similar purposes. (Harvey v. Harvey, 2 P. Wms. 21; Saunders v. Vautier, 4 Beav. 114; Rocke v. Rocke, 9 Beav. 66; In re Bostwick, 4 Jo. Ch. 99.) But this power of management and disposition exercised by the chancellor (if not always so) came to be regarded as extending only to the personal estate of infants and to the income of their real property. It did not extend to the binding of the inheritance. The question came before Lord Hardwicke in Taylor v. Phillips (1 Ves. 229) and he said: "There is no instance in this court binding the inherit-order made in the case has no support in the ance of an infant by any discretionary act of the court. As to personal things, as in the composition of debts, it has been done; but never as to the inheritance; for that would be taking on the court a legislative authority, doing that which is properly the subject of a private bill." And in Russell v. Russell (1 Mol-fants, consistent with constitutional limitations. loy, 525) the lord chancellor of Ireland said: From the origin of the State government the "I have no authority to bind an infant's legal legislature has enacted statutes conferring estate. This was decided long ago by Lord upon courts in certain cases and under careful Hardwicke in Taylor v. Phillips. The chan- restrictions the power to order the sale or cellor has never since attempted to deal with mortgage of the real property of infants for the legal inheritance of infants without the aid their benefit. The petition presented to the of Parliament." The subject of the inherent court in this case asked that the order be jurisdiction of equity over the estates of in- granted "pursuant to the statute in such case fants was considered by Nelson, J., in his dis- made and provided," but no specific statute senting opinion in Williamson v. Berry, supra, was referred to. On the argument at the bar which upon this point, has been frequently the only statutory authority relied upon to susreferred to with approval. Speaking of the tain the order was the sixty-fifth section of the powers of management and control over the Statute of Uses and Trusts, as amended by property of infants vested in courts of chancery, chapter 257 of the Laws of 1886. The original he says: "They relate to their personal and section declared that: "When the trust shall the income of their real estate, the court having be expressed in the instrument creating the esno power to direct the sale of the latter for tate, every sale, conveyance or other act of the their maintenance and education; that power trustee in contravention of the trust shall be rests with the legislature." The doctrine has absolutely void." This was plainly a provision been frequently declared in this State that a for the protection of the trust estate against court of equity has no inherent power to direct destruction or impairment by the unauthorized the sale or mortgage of the real property of in- act of the trustee. The estate to which the fants, and that its power in this respect is section refers is the trust estate, that is, the espurely statutory. (Rodgers v. Dill. 6 Hill, tate held under the trust. It did not in the 415; Baker v. Lorillard, 4 N. Y. 257; Forman nature of things comprehend legal estates in v. Marsh, 11 id. 544; Horton v. McCoy, 47 id. | remainder in the same land taking effect on

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