the death was not caused by external and vio-, lent means, within the meaning of the policy, we think it a sufficient answer that the gas in the atmosphere, as an external cause, was a violent agency, in the sense that it worked upon the intestate so as to cause his death. That a death is the result of accident, or is unnatural, imports an external and violent agency as the cause. The cases collated on the respondent's brief sufficiently establish that as a proposition. Trew v. Railway Pass. Ins. Co. 7 Jur. N. S. 878; Reynolds v. Accidental Ins. Co. 22 L. T. N. S. 820; McGlinchey v. Fidelity &C. Co. 80 Maine, 251, 6 New Eng. Rep. 450. The case of Hill v. Hartford Accident Ins. Co. 22 Hun, 187, cited by appellant, was that of a physician's death from drinking by mistake water from a goblet in which was some poison. It was held, by a divided court, that the injury was not effected through external and violent means withing the meaning of similar provisions of a policy. We cannot approve of the reasoning of the court, and agree with the general term opinion in this case, that the rule there laid down was too strict. In McGlinchey v. Fidelity & C. Co. 80 Maine, 251, 6 New Eng. Rep. 450, the Supreme Court of Maine held similar views of construction of an accident policy, and rested, among other authorities, upon the general. term opinion in this case. The order of the General Term should be affirmed, and judgment absolute should be ordered in favor of the plaintiff, under the defendant's stipulation.* All concur, except Ruger, Ch. J., and Andrews, J., not voting. *See 45 Hun, 313. SOUTH CAROLINA SUPREME COURT. C. E. YOUMANS, Appt., v. F. W. WAGENER et al., Respts. On a conveyance in fee simple to a married woman of land purchased by a third person on execution against her husband, an inchoate right of dower therein becomes merged in the fee; and if she conveys the land she cannot claim dower therein after the death of her husband. (March 7, 1889.) Afterwards and still during the coverture, the purchaser at said sale sold and conveyed the land to the demandant, who conveyed to the defendants F. W. Wagener & Co. After this sale the husband died; and the appellant instituted the proceedings below in the probate court demanding dower therein. The probate court, as stated above, sustained the claim, but on appeal to the circuit court this decree was overruled, His Honor, Judge Pressley, holding that, the demandant having become the owner in fee simple of the land, her estate in dower became merged therein, and that in conveying to Wagener & Co. she conveyed an absolute estate, free from the in APPEAL by demandant, from a judgment cumbrance of dower. He therefore reversed of the Common Pleas Circuit Court of Hampton County reversing a judgment of the Probate Court in favor of demandant in proceedings to establish an alleged dower right. Affirmed. The case sufficiently appears in the opinion. Mr. A. M. Youmans, for appellant: Under our statue, the only way that a widow can renounce or release her dower is by the form and in the manner prescribed by statute. A privy examination of the wife is a condition precedent to an effectual renunciation of dower. Townsend v. Brown, 16 S. C. 92. Mr. James W. Moore for respondents. Simpson, Ch. J., delivered the opinion of the court: This appeal involves the question whether the appellant is entitled to dower in certain real estate, denied her by the Circuit Court for Hampton County, on appeal from the probate court, which had decreed for her. The following seem to be the facts upon which the claim was made: The husband of the demandant owned the tract of land in question during the coverture, and during said coverture it was sold at sheriff's sale under execution against said husband. the judgment of the probate court. The appeal assails this ruling as error, and the respondent defends the judgment below, first, on the ground upon which it is based by the Circuit Judge above, to wit, merger; and secondly, he urges in the argument the doctrine of estoppel as sufficient to sustain said judg ment. When a greater and a less estate meet in the same person without any intermediate estate the less estate is merged in the greater, or, to use the language of the old law, is "drowned" and ceases to exist. This is merger. 2 Rapalje & L. Law Dict. 815; Mangum v. Piester, 16 S. C. 316. So, too, by operation of law, where one right unites in the same person with another right of greater legal worth, the first right is extinguished. For instance, where one acquires a remedy or security of a higher nature, in legal estimation, than the one he already possesses for the same right, then his remedies in respect of the minor right or security merge in those attaching to the higher one. An instance is a bond taken for a simple contract debt, or a bond reduced to judgment-the principle in all these cases, both as to the merger of estate and the extinguishment of rights, being that the larger estate or right of which the party becomes possessed puts him in possession of the lesser as completely as though it had been enforced by itself, and therefore there is no longer any reason | given notice that he would claim to support to claim it. Now it is true that in the case before us there is no union of two estates (an inchoate right of dower not being an estate), nor is there a coinciding of two rights, in the sense referred to above; the claim for dower being a mere inchoate right and the estate a fee simple estate. There is therefore technically no merger of estates or of rights. But the principle upon which it has been established that a merger in such cases takes place is present here. The demandant, when she purchased the land, became the owner in fee, with an incumbrance of an inchoate right of one third to herself, as dower. Had her husband been dead at that time and her right to dower been consummated, there is no doubt but that the dower would have been merged, drowned in the fee, because the fee would have given her possession of the dower as well. Why not, then, the same result as to her inchoate right? This is a new case, it is true, no question of dower having ever been before this court, or courts elsewhere, upon the precise state of facts here, so far as our researches have gone, or so far as references of counsel have been made. In the absence of all authority upon the precise point involved, we conclude, from the analogy of merger established as above, that His Honor was correct in holding that merger had taken place here, and that in conveying the land in question to F. W. Wagener & Co. she conveyed an absolute estate free from the incumbrance of dower. As to the question of estoppel. His Honor below did not in terms express himself upon that subject; and the respondent not having 3 L. R. A. the decree upon that ground, it is not properly before us; and even if it was, it would be unnecessary to consider it, as the decree must be affirmed upon the ground already stated. It does not need the estoppel. It is the judgment of this court that the judg ment of the Circuit Court be affirmed. Let this be certified to the Probate Court for Hampton County. McGowan, J.: I concur. McIver, J., concurring: I concur upon the ground that the warranty in the deed to Wagener & Co. operated, by way of estoppel, as a conveyance of the subsequent ly vested estate of dower, upon the well settled doctrine that where one conveys an estate, with warranty, to which, at the time, he has no title, or a defective title, and subsequently acquires a good and complete title, such title passes the grantee through the estoppel raised by the warranty. Wingo v. Parker, 19 S. C. 16, and cases there cited. to In the case of Townsend v. Brown, 16 S. C. 91, cited by appellant, the deed contained no clause of warranty, but was a simple quitclaim deed; and hence that case is not applicable. It does not seem to me that we are precluded from considering this question by reason of the omission of counsel for respondents to give notice as required by the proper practice, that he would endeavor to sustain the judgment below on this ground; for this question was distinctly made in the appeal from the decree of the Judge of Probate; and therefore it is one of the questions "fairly arising upon the rec ord of the case," and was in fact, argued by counsel for appellant. UNITED STATES CIRCUIT COURT, SOUTHERN DISTRICT OF NEW YORK. WESTERN UNION TELEGRAPH CO. v. The MAYOR etc. OF NEW YORK, Jacob (.... Fed. Rep.....) 1. State legislation compelling electric wires in the streets of a city to be placed under the surface of the streets, although such streets, being letter carrier routes, by subsequent legislation; but these regulations are always subject to the same constitutional restrictions and limitations that apply to the property of private individuals. Wood, Railway Law, p. 2; Burlington & M. R. R. Co. v. Spearman, 12 Iowa, 112; Grand Rapids, N. & L. S. R. Co. v. Grand Rapids & 1. R. Co. 35 Mich. 265; People v. O'Brien, 111 N. Y. 41; East St. Louis C. R. Co. v. East St. Louis U. R. Co. 108 Ill. 265; Phila. & G. F. Pass. R. Co's App. 102 Pa. 123; Central Bridge Corp. v. Lowell, 4 Gray, 474. The effect of the legislation sought to be plainant is to compel the complainant to relinquish its easements in the streets of the City of New York without any compensation therefor, and is invalid. are all post roads, is an exercise of police power, and is not an unlawful attempt to regulate commerce or an invasion of the rights of a telegraph company as a business agency of the general gov-enforced by the defendants as against the comernment under the Act of Congress of July 24, 1866 (U. S. Rev. Stat. title 65), to operate its lines on "any post road of the United States." 2. The privilege of a telegraph'company, which is a business agency of the general government, to maintain its wires along the structure of an elevated railroad in the streets of a city, such railroad being an independent post road of the United States, cannot be destroyed by state legislation. 3. A statute confirming a contract between commissioners for placing electric wires under ground, and a subway company, to lay subways for such wires is none the less an exercise of police power because it gives to such company special privileges but no exclusive privileges or franchises. 4. So long as public officers confine them- SUIT The case is fully stated in the opinion. The court has full jurisdiction to entertain this bill and to grant full relief. N. 0. M. & T. R. Co. v. Miss. 102 U. S. 135, 139 (26 L. ed. 96, 97); Southern Pac. R. v. Cal. 118 U. S. 109, 112 (30 L. ed. 103, 104). The complainant has acquired and now holds vested property rights in the streets of the City of New York. Telegraph poles set in the ground, and the wires and insulators attached thereto, are real property; they become appurtenant to and form a part of the realty, and are to be treated as such by the court. Y. Am. U. Teleg. Co. v. Middletown, 80 N. 408; N. Y. O. & W. R. Co. v. W. U. Teleg. Co. 36 Hun, 205. Railway companies, telegraph companies, electric light companies and all other companies formed under the laws giving the Legisla ture a right of alteration and repeal of their charters, acquiring property under such legislation may have their property rights regulated NOTE.-Police power of State, in the regulation of the use of private property, see State v. Marshall, 1 L. R. A. 51. 719. See Leloup v. Port of Mobile, 127 U. S. 640 (32 L. ed. 311): Cooley, Const. Lim. 4th ed. Ill. Cent. R. Co. v. Bloomington, 76 Ill. 447; See also Tiedeman, Police Power, § 191; People v. Jackson & M. Pl. Road Co. 9 Mich. 307; Com. v. Essex Co. 13 Gray, 239; Washington Bridge Co. v. State, 18 Conn. 53. This relinquishment is not on behalf of the public, but is for the benefit of the Consolidated Electrical & Subway Company, which is a mere private corporation. See Lake Shore & M. S. R. Co. v. Chicago & W. 1. R. Co. 97 Ill. 522. It is such legislation as creates a monopoly, or grants an exclusive privilege or franchise by a local Act, and is therefore unconstitutional and void. See opinions of Judge Allen, in People v. in N. Y. Electric Lines Company v. Crimmins, Squire, 1 N. Y. S. R. 634; and Judge Freedman, MS. Op. N. Y. Sup. Ct. Sp. Term, Nov. 4, 1886. The court will look to the practical effect of the contract and legislation. Astor v. N. Y. Arcade R. Co. 22 N. Y. S. R. 1. See Johnston v. Spicer, 9 Cent. Rep. 566, 107 N. Y. 187. The police power can never justify the transthe owner's consent; and the power claimed fer of private property to a stranger without by the board of electrical control under this statute is nothing short of a power to transfer the earnings and property rights of the complainant to the subway company without the complainant's consent. 129, 151; Re Deering, 93 N. Y. 361; Re Jacobs, See Langdon v. Mayor of N. Y. 93 N. Y. 98 N. Y. 98; N. O. Gaslight Co. v. La. Light & H. Co. 115 U. S. 650, 662 (29 L. ed. 516, 521). of the Act of 1866 was to make the complainThe effect of the acceptance of the provisions the transmission of government messages of ant an agent of the United States, in respect to all sorts; and also it is an instrumentality of interstate commerce. Under this twofold aspect it is entitled to certain rights as against the operation of even the police power of the States. See W. U. Teleg. Co. v. Texas, 105 U. S. 460 (26 L. ed. 1067); W. U. Teleg. Co. v. Atty Gen. of Mass. 125 U. S. 530 (31 L. ed. 790). Messrs. Platt & Bowers, Henry R. Beekman, and David J. Dean, for defendants: Every federal decision giving effect to the rights of telegraph companies under the Act of 1866 or under the provisions of the Constitution as to commerce has carefully protected the rights of the States in their ownership of property and their power to make their own police regulations. See Pensacola Teleg. Co. v. W. U. Teleg. Co. 96 U. S. 1 (24 L. ed. 708); W. U. Teleg. Co. v. Texas, 105 U. S. 460 (26 L. ed. 1067); W. U. Teleg. Co. v. Atty-Gen. of Mass. 125 Ú. S. 530 (31 L. ed. 790); Ratterman v. W. U. Teleg Co. 127 U. S. 411 (32 L. ed. 229); Leloup v. Port of Mobile, 127 U. S. 640 (32 L. ed. 311). The Acts of the Legislature of the State of New York, chap. 499 of the Laws of 1885 and chap. 716 of the Laws of 1887, are reasonable police regulations. Kidd v. Pearson, 128 U. S. 1 (32 L. ed. 346), 2 Inters. Com. Rep. 232; U. S. v. Dewitt, 76 U. S. 9 Wall. 41 (19 L. ed. 593); Slaughter House Cases, 83 U. S. 16 Wall. 62 (21 L. ed. 404). The complainant has acquired no vested rights in the streets of the City of New York. In the first place, there is no proof in the case that any of its poles have stood for twenty years; in the next place, they are there by mere license, being placed in the streets under no claim of right or title, but in pursuance of the privileges conferred by the Act of 1848. See St. Vincent Female Orphan Asylum v. Troy, 76 N. Y. 108; Flora v. Carbean, 38 N. Y. 111; Wiseman v. Lucksinger, 84 N. Y. 31; White v. Spencer, 14 N. Y. 247; Burbank v. Fay, 65 N. Y. 57; Blanchard v. W. U. Teleg. Co. 60 N. Y. 510. There can be no ownership of property in this State that is not subject to police regulation. People v. Squire, 10 Cent. Rep. 437, 107 N. Y. 593, 604-606; Mugler v. Kan. 123 U. S. 664 (31 L. ed. 211). The Acts of the Legislature of the State of New York in question have been considered by the courts of this State and held constitutional. People v. Squire, 10 Cent. Rep. 437, 107 N. Y. 593; Brown v. N. Y. 63 N. Y. 244. Wallace, J., delivered the following opin It is the established law of the land that the police power regulations which do not interfere with the exercise of the control of Con-ion: gress over foreign and domestic commerce appertains to the States and will be enforced and sustained in the federal court. Gibbons v. Ogden, 22 U. S. 9 Wheat. 203 (6 For definitions of the police power- The deposit in Congress of the power to regulate foreign commerce and commerce among the States was not a surrender of that which may properly be denominated police powers. Hannibal & St. J. R. Co. v. Husen, 95 U. S. 470 (24 L. ed. 529); Patterson v. Ky. 97 U. S. 501 (24 L. ed. 1115; Webber v. Va. 103 U. S. 344 (26 L. ed. 565); Thomson v. Union Pac. R. Co. 76 U. S. 9 Wall. 579 (19 L. ed. 792); First Nat. Bank v. Ky. 76 U. S. 9 Wall. 362 (19 L. ed. 703); Union Pac. R. Co. v. Peniston, 85 U. S. 18 Wall. 5 (21 L. ed. 787). For examples of cases analogous and similar to the present police regulation, see 5 Op. Atty-Gen. 554; U. S. v. Hart, 1 Pet. C. C. 390; Mutual U. Teleg. Co. v. Chicago, 16 Fed. Rep. 309; Atchison, T. & S. F. R. Co. v. Shaft, 33 Kan. 521, 19 Am. & Eng. R. Cas. 529; Clark v. Boston & M. R. Co. (N. H.) 5 New Eng. Rep. 48, 31 Am. & Eng. R. Cas. 548; Smith v. Boston & M. R. Co. 63 N. H. 25; Munn v. Ill. 94 U. S. 113 (24 L. ed. 77); License Cases, 46 U. S. 5 How. 583 (12 L. ed. 256). A State has a right, as a measure of police protection, to require the discontinuance of any manufacture or traffic. This case presents the general question whether certain acts of the municipal authorities of the City of New York, respecting matters of grave local concern, done or about to be done pursuant to powers devolved upon them by the Legislature of the State, are such an invasion of the paramount authority of the National Government as to render them unwarranted. The mere statement of this proposition shows that the complainant has properly invoked the jurisdiction of this court, and has a right to rely upon its interposition by injunction if the acts of the defendants are thus unwarranted, are injurious to the complainant, and are of a nature remediable by courts of equity. Telegraph companies that have accepted the restrictions and obligations of the law of Congress of July 24, 1866 (title 65, U. S. Rev. Stat.) become as to government business agencies of the general government, and are given the privilege to "construct, maintain and operate” lines of telegraph over and along any post road of the United States, but not so as to interfere with "the ordinary travel" on such roads. All the streets of the City of New York are post roads, because they are letter-carrier routes, and all railroads are post roads. Rev. Stat. § 3964. The complainant accepted the provisions of this law of Congress in 1867. A telegraph company occupies the same relation to commerce as a carrier of messages that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. Telegraph companies are subject to the regulating power of Congress in respect to their foreign and interstate commerce, and this power resides exclusively in Congress. The complainant has long been engaged in Boston Beer Co. v. Mass. 97 U. S. 25 (24 L. ed. 989); Minneapolis & St. L. R. Co. v. Beck-interstate and foreign commerce. In the course with, 129 U. S. 26 (32 L. ed. 585); Hewett v. Western Union Teleg. Co. 4 Mackey, 437. of its operations the complainant has lawfully erected its poles and strung its wires in and along many of the streets of New York City, | person would be." W. U. Teleg. Co. v. Attywhich, as has been stated, are post roads of the Gen. of Mass. 125 U. S. 530, 548 [31 L. ed. 790, United States; and it has also put up and now 793]. maintains over and along other streets a number of wires upon the structures of the Manhattan Railway Company, an elevated railway of the city, also a post road, pursuant to a lease from the railway company. The defendants, assuming to proceed by the sanction and mandate of certain Acts of the State Legislature, have compelled the complainant to remove its poles and wires from some of the streets, and have notified it to remove them from other streets, and to remove its wires from the structures of the elevated railway; and they propose, if the complainant fails to comply with these requirements, to remove the poles and wires themselves. Under these circumstances, the complainant asks this court to examine the authority under which this destruction of its property is threatened, and determine whether there is any justification in law for acts which apparently invade its privilege to maintain and operate its lines upon the post roads of the United States, interfere with its operations as a government agent, and interrupt and impede the discharge of its functions as an instrument of interstate and foreign commerce. It is not open to discussion that the complainant is protected by the national authority against any encroachment under state authority upon the rights and immunities expressly granted to it by the Act of Congress, or which it enjoys in its dual capacity as an agent of the general government and an instrument of interstate and foreign commerce. Concerning the immunity of the complainant as an agent of the general government for the transaction of government business from an unwarranted interference through state legislation with its operations, the doctrine first enunciated in McCulloch v. Maryland, 17 U. S. 4 Wheat. 316 [4 L. ed. 579], and reiterated in subsequent adjudications whenever the question has arisen, is familiar that the States have no power by taxation or otherwise to retard, impede, burden or in any manner control the agencies of the Federal Government, and they are exempted from the effect of state legislation, so far as that legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve the government. Respecting the position of the complainant as an instrument of interstate and foreign commerce, it suffices to quote the language of the supreme court in one of the more recent cases in which the question was considered: "Notwithstanding what is there said (in previous judgments) this court holds now, and has never consciously held otherwise, that a statute of the State intended to regulate, or to tax, or to impose any other restriction upon, the transmission of persons or property or telegraph messages from one State to another, is not within that class of legislation which the States may enact in the absence of legislation by Congress; and that such statutes are void, even as to that part of such transmission which may be within the State." Wabash, St. L. & P. R. Co. v. Ill. 118 U. S. 557 [30 L. ed. 244]. Speaking of the privilege conferred upon telegraph companies by the Act of Congress, Nevertheless, persons and corporations enthe Supreme Court of the United States in Pen- joying grants and privileges from the United sacola Telegraph Company v. Western Union Tele- States, exercising federal agencies and engaged graph Company, 96 U. S. 1, 11 [24 L. ed. 708, in interstate commerce, are not beyond the 711], used this language: "It gives no foreign operation of the laws of the State in which they corporation the right to enter upon private prop- reside or carry on their business; and it is only erty without the consent of the owner and erect when these laws incapacitate or unreasonably necessary structures for its business; but it does impede them in the exercise of their federal provide that whenever the consent of the owner privileges or duties, and transcend the powers is obtained no state legislation shall prevent which each State possesses over its purely dothe occupation of post roads for telegraph pur-mestic affairs, whether of police or internal poses by such corporations as are willing to commerce, that they invade the national jurisavail themselves of its privileges." diction. lows: Indeed, the language of one of the very latest This doctrine is well expressed in the words opinions of that court upon the question of the of the supreme court in Patterson v. Kentucky, power of the State to interfere with the right 97 U. S. 501, 504 [24 L. ed. 1115, 1116], as folof a telegraph company to maintain and operate its lines along a post road applies to the specific facts of this case, and, if literally interpreted, would control the present decision. The question before the court was as to the power of a State to tax the real and personal property, within the State, of a telegraph company which had accepted the provisions of the Act of Congress; but the court, while holding that the privilege granted did not exempt the telegraph company from such taxation, said: "While the State could not interfere by any specific statute to prevent a corporation from placing its lines along a post road, or stop the use of them after they were placed there, nevertheless, the company receiving the benefit of the laws of the State for the protection of its property and its rights is liable to be taxed upon its real or personal property as any other "By the settled doctrines of this court the police power extends at least to the protection of the lives, the health and the property of the community against the injurious exercise by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not in the sense of the Constitution, necessarily intrench upon any authority which has been confided, expressly or by implication, to the National Government." The statutes which the defendants are proceeding to enforce unquestionably belong in the category of police regulations, the power to establish which has been left to the individual estates. But statutes of this class may sometimes trench upon the federal jurisdiction; and when their provisions extend beyond a just regulation of rights for the public good |