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Northwestern Mut. Life Life Ins. Co. v. Stevens

208 Nassoly v. Tomlinson.

208 Nead v. Wall..

191 Neal v. Flint

238 Neal v. Lehman,

270 New Memphis Gas & Light Co. v. City of Memphis.. 412 New York Life Ins. Co. v. Priest..

304 New York Security & Trust Co. v. Equitable Mortgage Co

255 Northern Pac. Ry. Co. v. Charles.

397 Northern Pac. R. Co. v. Lewis..

396 Northern Pac. R. Co. v. Pauson


PAGE Smith v. Brown.

112 Sneed v. Sabinal Miving & Milling Co..

235 Snow v. Snow..

236 Snyder Manf'g. Co. v. Snyder.

380 Springer v. Howes...

64 St. Paul, M. & M. Ry. Co. v. Drake.

412 State of Florida v. Charlotte Harbor Phosphate Co..... 190 State Trust Co. of New York v. Nat. Land Imp. Manfg. Co ....

380 Stevens v. Shannahan.

380 Stevenson v. United States.

396 Stuart v. Hayden..

368 Sullivan v. Colby...

238 Texas & P. Ry. Co. v. Elliott..

237 Texas & P. Ry. Co. v. Thompson.

191 The Lena Mowbray

287 Thomas v. Lancaster Mills of Clinton, Mass..

235 Townsend v. Vanderwerker

144 Trustees of Amherst College v. Allen..

191 Tulare Irrigation Dist. v. Kaweah Canal & Irrigation Co......

412 Tyler Min. Co. v. Last-Chance Min. Co


O'Connor v. Rich...

79 Omo v. Bernart..

144 Oregon Short Line & U. N. Ry. Co. v. Skottowe 397 Ornelas v. Ruiz,.

349 Orth v. City v. Milwaukee..

236 Owen v. Dewey..

112 Owens v. McCloskey.

368 Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co. 237 People v. Rock Island & P. Ry. Co.....

304 Petersburgh Sav. & Ins. Co. v. Dellatore.

127 Philadelphia & R. Coal & Iron Co. v. Daube.

288 Pollock v. Horn..

288 Pooley v. Luco

379 Powell v. Cash..

380 Price y. Elmbank.



Ulman v. Ritter...

413 Union Elevator Co. v. Kansas City Suburban Belt Ry.

Union Nat. Bank of Oskosh v. German Ins. Co. of

237 Union Pac. Ry. Co. v. Callaghan.

836 United States v. Fuller..

397 United States v. Hanley

255 United States v. Hughes.

175 United States v. Oregon & C. R. Co.

32 United States v. Rauers..

144 United States v. Reder.

47 United States v. Sayward..

175 United States r. Severens..


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Ray r. Tatum.

336 Ritter v. Ewing:

413 Ritter v. Mutual Life Ins. Co..

191 Rosen v. United States

237 Rosenberg v. Jett

320 Ross-Meehan Brake Shoe Foundry Co. v. Southern Malleable Iron Co....

412 Rothschild v. Hasbrouk..

412 Royal Baking Powder Co. v. Raymond.. RW. Rogers Co. v. Wm. Rogers Manufg. Co. 191 Salem Bedford Stone Co. v. Hobbs.

270 Sample v. London & L. Fire Ins. Co..

380 Sawyer v. Nelson..

413 Schade v. Gehner..

836 Schip v. Pabst Brewing Co..

238 Schlegel v. Herbein..

349 Scott v. Allegheny Val. Ry. Co.

238 Seeley v. Kansas City Star Co..

287 Seneca Nation of Indians v. Christy.

397 Shelby County v. Union & Planters' Bank.

303 Silver State Council No. 1 of American Order of Steam Engineers v. Rhodes..


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WE complete in this issue publication of the desirable to make a close and careful study of

The portion of the report treating of pracThe Albany Law Journal. tice in other States will serve as a valuable in

dex to the revisers of procedure, as indicating ALBANY, JANUARY 4, 1896.

the statutes of other States of the Union, refer

ring to the different enactments and giving a Current Lopics.

summary of those States which have codes and (All communications intended for the Editor should be ad

those still using the common law method of Jressed simply to the Editor of The ALBANY LAW JOURNAL.

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

The body which shall ultimately take up the

matter of revision, will find it necessary and TE

report of the Commissioners of Code Re- each one of the codes referred to with a view to vision.

ascertaining in what respect it may contain proA further examination and study of the report visions desirable to be introduced in our own impresses us very favorably with the manner procedure. The same is true with reference to in which the commissioners have performed the procedure in other countries, more particuthe duty imposed upon them “To examine larly that in England, where, under the Judicathe Code of Procedure of this State and ture act, as amended, it has been found the the codes of procedure and practice acts in business of the courts can best be carried on force in other States and countries and the under a brief statute, supplemented by rules rules of court adopted in connection there framed by the courts or under the direction of with," so as to enable them to discharge the judges. the duty incumbent upon them by the act, “ To The conclusion at which the Commissioners report thereon to the next Legislature in what arrived, " That the history of the development respects the civil procedure in the courts of this of civil procedure in this State shows that the State can be revised, condensed and simplified.” time has arrived when it will be convenient and

The report indicates careful and laborious for the public interest to undertake a re-arstudy of the history of procedure and gives a rangement and more thorough classification and summary of the practice in other states and also a revision of our entire Civil Procedure,” is in of the procedure in other countries, followed line with the views of the profession as exby a review of procedure in this state, and con- pressed during the past three or four years, cluding with a recommendation for a general and follows the suggestions made by the State revision of the Code of Procedure, following Bar Association and New York City Bar Assosubstantially the recommendations made on be- ciation, as to the necessity for amendment and half of the committee of the Bar Association revision. last year, out of which the appointment of the The statement of general statutes which present Commission arose.

should be included in a practice act, is also The historical review is carefully compiled valuable as suggesting the manner in which the and will be valuable for reference upon that different statutes relating to practice are scatsubject.

tered through the Session Laws, VOL. 53 - No. 1.

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It will be part of the work of the revisers to most proper, in their opinion, for that purpose, collate these statutes and embody them in a having also power of removal and change in completed Code.

such a way as to enable them to secure the serWe may, therefore, regard it as substantially vice of members of the profession best qualified settled that a revision of the Code of Procedure for the work. is not only desirable but necessary and that it

This question is an important one to the prowill be undertaken at an early day. The ques- fession, since it is imperative that the revision tion which presents itself to the profession, should be carried on in the most thorough mantherefore, is as to the manner in which the work ner by persons most competent for the task, shall be undertaken and to whom shall be con- and that when completed it shall be not only fided the selection of proper persons to carry the most perfect Code of Procedure in existence, it on in accordance with the wishes of the bar. but as nearly as possible an ideal system of The preliminary work has, as we have seen, practice. been carried on by the Commissioners of the

The Court of Appeals handed down decisStatutory Revision, but it would evidently be ions in all cases argued before it on Thursday, casting upon them a burden which they ought December 19, so that the court, with the two not to be asked to bear to place in their hands

new judges on the bench, will commence fresh a revision which must necessarily extend over

on the new year. Among the important cases a period of two or three years, and which should which were decided was that of Losey v. Stanbe carried on in a most careful manner to the ley, in which the court, among other things, substantial exclusion of all other work by those holds that future legal estates in lands not who take the matter in hand.

covered by a trust, but created to take effect Still another reason of a public nature will in possession on the termination of a prior almost necessarily prevent the work from being trust estate for life, are not within the proviscarried on by the Commissioners of Statutory ions of the Statute of Uses and Trusts declaring Revision, namely, the great necessity for an im- that every valid express trust shall vest the mediate completion of the work of revision of whole estate in the trustees. Another importthe General Statutes. This, together with the ant point decided was that a court of equity labor of drafting and revising bills presented to has no inherent power to direct a mortgage of the Legislature, will make it a practical impos- the real property of infants ; its power in this sibility for the present Commission to undertake respect being purely statutory. The opinion the work.

seems to be especially important and to involve In view of these facts, it is a question worthy many interesting qnestions, while the opinion of very serious consideration whether the super of Judge Andrews is scholarly and succinct. vision of the work should not be committed to the material part of the decision is as follows: such members of the courts as may be thor- This appeal presents a question of broader oughly competent, by reason of their learning interest than attaches merely to the pecuniary and experience, to suggest what is most desir- rights of the parties to the litigation. It inable by way of amendment and revision. No volves a consideration of the power of the body of men can be so competent as that selec- Supreme Court in dealing with the real propted from the judges of our highest courts to de- erty of minors, and the extent of its jurisdiction termine whether the Code should contain a in directing a sale or mortgage of their propcomplete system of practice as is attempted in erty. By the will of Elizabeth J. Stanley a the present Code, or whether the practice act trust was created in the real property of which should contain the more general rules and prin- she died seized, during the life of her son, ciples, to be supplemented by rules of court as James W. Stanley, for his benefit, with remainin England and in some of the states. It is der to his children or their descendants living quite true that the work of revision could not at his death, and in default of such issue to cerbe performed by the members of the court, but tain other specified devisees. James W. Stanley they certainly could supervise whatever might was unmarried at the death of his mother and be done, and select such persons as would be the remainder to his children was contingent until the birth of issue. He subsequently power of sale contained in the will. (Albany married and there were two children of the Fire Ins. Co. v. Bay, 40 N. Y. 9; Bloomer v. marriage (the infant defendants) who were liv- Waldron, 3 Hill, 361; Rogers v. Rogers, un ing when the mortgage in question was execu- N. Y. 228.) When, therefore, theapplication for ted. Under the will, the first born child of leave to mortgage the premises in question was James W. Stanley took at its birth a vested made to the court by James W. Stanley, October estate in remainder in the land devised, subject 15, 1888, the infant defendants were vested with to open and let in after-born children as they a legal estate in the remainder in the premises, severally came into being, and such vested and the trustee had no power under the will to remainder became a fee simple absolute in the sell or otherwise affect or incumber their estate children living at the death of their father. for the purposes specified in the application. (1 Rev. St. 723, § 13; Moore v. Little, 41 We shall pass without comment the question N. Y. 66; Williamson v. Berry. 8 How. (U.S.] urged upon us, that the appointment of James 495.) The estate in the children of James W. W. Stanley, the sole beneficiary of the trust, as Stanley was a legal estate. The estate of the the trustee, was unauthorized and void.

We trustee was for the life of James W. Stanley entertain some doubt whether a trust is void and terminable at his death. The will created in its inception where the instrument creating two distinct legal estates in the devised prop- the trust appoints the sole beneficiary the truserty, viz., an estate in the trustee for the life of tee, but we have no doubt that the appointment the beneficiary, with the right of possession and of the beneficiary as trustee by the court, on the to receive the rents and profits during the con- death or resignation of the testamentary trustee, tinuance of the trust, and an estate in remain- does not extinguish the trust. The incompatider which became vested on the birth of bility of the two relations united in the same children as before stated. The trustee had no

person is evident.

Whether a trust so constipower over the estate in remainder except such tuted in the first instance may not be sustained, as may have been given him by the will. He leaving it to the court to substitute a compecould not sell or incumber it or in any way by tent trustee, will need consideration when the his own act alter or affect the interests of the question directly arises. (Rogers v. Rogers, remaindermen unless authorized by the will. supra; Woodward v. James, 115 N. Y. 346.) The provision of the Statute of Uses and

We come to the main question, and that is Trusts (1 Rev. St. 729, $60), declaring that whether the court, either by virtue of an inevery valid express trust shall vest the whole herent or statutory power, could, upon the estate in trustees, is by settled construction application made in this case, authorize James limited to the trust estate, and has no applica- W. Stanley to bind the estate of the infant tion to future legal estates in lands covered by remaindermen by mortgage. That the Suthe trust, to take effect in possession on the preme Court, acting as a court of equity, termination of the trust. The trustee in the possesses an inherent jurisdiction for some purpresent case had an estate for the life of James poses over the persons and estates, real and W. Stanley, and it was this estate and this only personal, of minors, cannot, we think, be sucwhich vested in the trustee. (Stevenson v.

cessfully controverted. The origin of the Lesley, 70 N. Y. 512.) The will of Elizabeth jurisdiction of the Court of Chancery in EngJ. Stanley conferred on her executor and land over the persons and estates of infants is trustee a power to sell the real estate devised, involved in some obscurity. The better opinif deemed by him advisable so to do for the ion seems to be that it grew out of the transfer purpose of investment of the proceeds. It

by the crown to the chancellor of the supergave him no power to sell the lands for the vision theretofore exercised by the king as payment of debts, or for any other than the parens patriæ over persons who by reason of specified purpose. It conferred no power to non-age, were incapable of acting for themmortgage, and it is not claimed nor could it be selves. (See 2 Sto. Eq. Jur. § 1327, et seq.) reasonably contended that the mortgage in The chancellor intervened for the protection of question can be sustained as an exercise of the minors and their property, and the precedents are numerous where the chancellor authorized 26; Jenkins v. Fahey, 73 id. 355, 36 1.) The the application of their property for their edu- obiter remarks of Ch. Kent on this subject in cation and maintenance, and, at times when Matter of Salisbury (3 Jo. Ch. 348) and in the interests of the infants seemed imperatively Hedges v. Riker (5 Jo. Ch. 163) are contrary to require it, permitted even the capital of a to the general current of authority. The text fund belonging to the infants to be anticipated books are explicit in stating the modern docor broken in upon for such or similar purposes. trine on the subject. (Pom. Eq. Jur. $ 1309; (Harvey v. Harvey, 2 P. Wms. 21; Saunders Bispham's Eq. $ 549.) The question of the v. Vautier, 4 Beav. 114; Rocke v. Rocke, 9

inherent power

of a court of equity to order a Beav. 66; In re Bɔstwick, 4. Jo. Ch. 99.) But sale of an infant's real property, upon the this power of management and disposition ex- theory of a supposed benefit to him is quite ercised by the chancellor (if not always so) distinct from its acknowledged power in the came to be regarded as extending only to the enforcement and protection of trusts and from personal estate of infants and to the income of the power of courts in the exercise of their their real property. It did not extend to the ordinary jurisdiction to establish or enforce binding of the inheritance. The question rights of property between parties to a litigacame before Lord Hardwicke in Taylor v.

tion, whether infants or adults. Phillips (1 Ves. 229) and he said: “There is

Having reached the conclusion that the 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 inherent jurisdiction of the court over the estate the court. As to personal things, as in the of the infant defendants, it remains to consider composition of debts, it has been done; but whether it can be sustained under any statunever as to the inheritance; for that would be tory authority. The legislature possesses whattaking on the court a legislative authority, do

ever power as parens patriæ was in England ing that which is properly the subject of a pri- lodged in the sovereign over the estates of invate 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.

(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. I remainder in the same land taking effect on

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