CORRESPONDENCE.

POWER IN. TRUST - TOWNSHEND V. FROMMER, 125 N. Y. 446.

Editor of the Albany Law Journal:

Your issue of March 12 contains an interesting criticism of Townshend v. Frommer. I entirely disagree with the writer, and would like to point out what appear to be two fatal defects in his reasoning, which were specially called to my attention by the discussion of this same case in Mr. Chaplin's recently-published book on Suspension of the Power of Alienation.

The facts, as stated by your correspondent, were as follows: C. owned land subject to a mortgage. She conveyed that land to a trustee on trust, to receive the rents and profits and pay them to her during her natural life, and on the further trust that at her death he should convey the same in fee to the children of C. living at her death, and the surviving children of such as might then be dead, in equal portions, per stirpes and not per capita. The mortgage was subsequently foreclosed. C. and trustee were made parties. Children of C. then living were not made parties. C. died. The plaintiff, a grantee of children and grandchildren of C., brought ejectment against the defendant, a grantee of the purchaser at the foreclosure sale.

The question to be decided was, whether it was or was not necessary, in the foreclosure suit, to bring in the then living children of C. as parties. And the answer to this question depended entirely on another, clearly stated in the opinion of the court, on page 454, whether the then living children of C. did or did not during C.'s life have a vested remainder. If so they were necessary parties. If not so, they were not necessary parties. This was the only point to be settled.

Now in approaching this point, I think your correspondent's error is just here that he assumes that the mere fact that there are beings in existence who would certainly take the fee if the life estate were to terminate now, is conclusive on the character of the future interest, and invariably renders it vested. In support of this claim he cites the phraseology of the statutory

definition of vested remainders, and the case of Moore v. Littel, 41 N. Y. 66.

*

*

Now this view of the statute, and the rule expressed in the opinion in that case, that all remainders of this class, including the one then under discussion, must be vested, have been entirely exploded. I will here only quote the words of the Court of Appeals in Hennessy v. Patterson, 85 N. Y. 91, where, in speaking of Moore v. Littel, they say "the case was really decided upon the ground * that the remainder was contingent, but nevertheless an expectant estate," etc. Hennessy v. Patterson is itself a case of the class under consideration, yet the court held that the remainderman took a contingent and not a vested remainder. In fact the intent of the grantor, or testator, as shown in the form in which he has chosen to cast his future gift, still has a large influence, as at the common law, in determining whether it is to be regarded as vested or contingent. The cases above cited, and the point in hand, are very fully and clearly discussed in the book I have already referred to, in sections 28-52.

The other weak link in your correspondent's chain is that he overlooks the fact that in searching for the intent of the grantor or testator, on the question of vesting, the courts have established a distinction between cases where, after a trust, there is a power to convey to particular existing persons, or a particular existing class, actually pointed out, and those where there are as yet no persons who have acquired the description employed in the will or deed to designate the remaindermen. On this point I should like to quote Mr. Chaplin's statement, which seems to me to sum the whole matter up very concisely:

"Sec. 372. (1) If the persons to whom the conveyance is to be made cannot be ascertained until the time comes for the conveyance, then the reversion remains in the heirs of the devisor, or in the grantor and his heirs, until that time comes, even though there are persons in being who, if the trust estate should now terminate, would thereby at once become the persons entitled to the estate. In such a case the donee cannot execute the power, and the statute cannot execute the use, until the trust estate does terminate. In the meantime the interests of the now-living persons in whom the estate may become vested when the trust terminates are contingent. Such was the state of facts in Townshend v. Frommer. And it seems that their interest is not a remainder at all." (Citing authorities.) "Sec. 373. (2) But if the persons to whom the conveyance must be made by the donee of the power are specifically designated persons in existence, they take a vested remainder in spite of the power." (Citing authorities.)

"Sec. 374. This point appears to be settled by the case of Moore v. Appleby. This was a suit by a purchaser, under a contract of sale, to recover an advance payment, on the ground of defective title. Objection to the title was based on the following facts: Testator devised his land - including the parcel in question-to G. upon two trusts; first, to receive the rents and profits and apply them to the use of C. for life, and secondly, at the death of C. to convey the land to C.'s children, or, if there were no children, to C.'s heirs. In an action to partition testator's lands during C.'s life, his children were not brought in as parties. It was objected by the purchaser that their rights in the parcel covered by the contract of sale, under which plaintiff had made his advance payment, had not been cut off by those proceedings. The question was thus presented, whether the children of C. living during his life had a vested remainder. The only distinction between the facts in this case and that of Townshend v. Frommer is that here the class to whom the trustee was directed to convey was designated, and members

of it were already in existence answering to the description of children of C.,' while in Townshend v. Frommer there were during the trust term no persons in being answering to the description by which testator chose to indicate those to whom the future conveyance should be made, namely, the children of said Clarissa living at her decease, and the surviving children of such of them as may then be dead.' The differeuce in the form of describing the future grantees is clearly such as would at common law, and under our statute, render the members of the class in one case ascertained, and in the other case yet to be ascertained. And out of this distinction arises the difference in the decisions of the court in the two cases.

"Sec. 375. For in Moore v. Appleby the court, having shown that apart from the presence of the attempted express trust, or valid power to convey, the children of C. would take a vested remainder after the trust estate, add: 'And that was not defeated in this instance by the direction given to the trustee to convey, assign and transfer the estate on the termination of the trust, for that was not a purpose for which a trust could be created under the provisions of the statute. This direction, at most, created only a power over the estate in the trustee, and where such a power may be created the land, notwithstanding its existence, will descend to the persons entitled to inherit it, subject to the execution of the power. ** ** Under these provisions of the statute, as they have been construed, the persons entitled to the property in remainder after the decease of the testator's son Charles C., which would terminate the trust estate, had a vested interest in the property, and should have been made parties to the action in partition * * * .' And this result was approved, and the judgment unanimously affirmed, by the Court of Appeals.

"Sec. 376. It appears impossible to reconcile this case with Townshend v. Frommer, except on the principle already stated, that where there is a power to convey at the end of the trust term, and there are in the meantime no persons possessing the capacity, or answering the description, by which the creator of the estate has chosen to designate the future grantees, the future interest continues contingent until there are persons who possess that capacity and answer that description. While where there is a power to convey, at the end of the trust term, to persons now answering to the description, or to a designated class now represented by members answering to the description, there the existence of the power does not in any way interfere with the vested character of the future estate.

Sec. 377. The suggestion that the distinction between the two cases lies in the fact that in one the instrument was a will and in the other a deed" (citing Mr. Abbott's note in 26 Abb. N. C., at 465), "appears to be without substantial basis either on reason or authority. The true distinction seems to be clearly pointed out in the opinions of the courts in the following words:

"Moore v. Appleby. "What the statute therefore designed was *** that the property in remainder should, in the case of a devise of this nature, devolve upon the persons entitled to take it in remainder. And that was not defeated in this instance by the direction *** to convey *** on the termination of the trust.'

"Townshend v. Frommer.

"Upon the question of the vesting quality of an estate, which is limited to take effect at a future day, upon the termination of a prior trust estate, in persons then to be ascertained, cases where the trust was to convey to definite persons named might be as unsatisfactory as authorities as where the grantor or testator had given the remainder directly. It is the uncertainty here as to the precise persons in whom would exist the right to enforce the execution of the power in trust if, upon Mrs. Curtis' death, any estate remained to be conveyed, that introduces the element of contingency.'

"Sec. 378. It must however be admitted that a certain doubt is thrown upou the conclusion here arrived at, by the fact that if it is correct, the elaborate and valuable discussion in the opinion in Townshend v. Frommer, of powers to convey, and of the bearing of their presence upon the nature of the future interest of the proposed grantees, is not strictly essential to the conclusion reached by the court, inasmuch as the result would have been the same if the presence of the power had been entirely disregarded. But although thus not strictly essential to the result, yet the discussion in the opinion is still not inappropriate, and follows naturally from the form of the contention over the effect of the power in the case before the court. And this difficulty appears less serious than that involved in considering that Townshend v. Frommer directly overrules so recent and so important a case as Moore v. Appleby, without even a mention of it, and particularly in view of the fact that in Townshend v. Frommer the court, in the passage already quoted, appear to recognize without disapproval the existence of the class of cases represented by Moore v. Appleby, and look on their decision in Townshend v. Frommer as in no way inconsistent with earlier authorities.'

NEW BOOKS AND NEW EDITIONS.

P.

OSTRANDER ON FIRE INSURANCE. This is a monograph of moderate size, citing a moderate number of cases, and apparently chiefly devoted, as the title page indicates, to "an analytical discussion of recent cases." It is concisely written, and seems methodically arranged. The scheme of the work is judicious and useful, but of the value of the analysis we cannot speak upon such a cursory examination as we are able to bestow. The chapters on "other insurance and arbitration" cannot but prove of special use. There is even one chapter on the "iron safe clause" and another on "explosions." Altogether it looks like a practical and useful treatise. Rollins Publishing Co., Chicago.

RICHARDS ON INSURANCE.

This, a work on the general law of insurance, by Prof. George Richards, of Columbia College Law School, is designed primarily for the class-room, and professes to combine the benefits of the text-book with the case system in teaching law. The first part, in some two hundred and sixty pages, states the principles, and the second, in three hundred pages, sets forth the illustrative leading cases in full, with admirable short head-notes or suggestive catch-lines. There is also an appendix of statutes and forms. There can be no doubt of the excellence of the work as a manual for students, and it must possess a value for the practitioner as well. For example, in sixty pages, the author gives the meaning and legal effect of every clause in the New York fire policy. As the work of an experienced insurance practitioner and lecturer, we recommend it to students and the bar. Banks & Brothers, New York and Albany.

In the deplorable case of Osborne v. Hargreaves one point that strikes an Indian reader is the rapidity with which the dispute came on for trial. The jewelry is said to have been stolen about February 18, and on February 19 it was sold to Messrs. Spink & Co., jewelers in the city of London. Mrs. Hargreaves filed a suit against Messrs. Spink who pleaded the custom of market overt. The suit was heard on October 25 and judgment was given on November 2. Meanwhile Mrs. Osborne had filed a suit for slander and it came on for hearing on December 14. In an Indian district with heavy files the issues would barely have been settled by that time.-Indian Jurist.

ter. In addition, it has a metrical account of Turntable Law as held in Massachusetts in a case of small-boy. We do not understand that the portrait of Mr. Roger Foster, in the advertising pages, is intended to represent a small boy, but it looks amazingly young for a professional gentleman old enough to write a book on "Practice," and of whom we have heard and seen things for a good many years.

It was a happy thought of the Saturday Night Club of the city of New York to invite some of the leading representatives of the Press of the city to dinner at the Holland House last Saturday night. Under the genial and graceful leading of Mr. Clark Bell - an intellectual double-ender, lawyer and physician in one and the well-known editor of the Medico-Legal Journal-the feast passed off prosperously and the thirty-four feasters enjoyed themselves. Under the gentle and persuasive influence of the "loving cup," the mortal enemies of the Press, who hardly ever speak as they pass by, became enthusiastic in praise of one another, and mentally ransacked the dictionary for favorable epithets. We almost wished we had an enemy present that we might forgive him. The Tower of Babel or the day of Pentecost was scarcely more prolific in tongues, for Congressman Fitch spoke in German (so we are informed), Signor Lozano in Spanish, Mr. Willie Wylde in Irish-atte-Oxford, and the chairman bravely essayed a little French. Wit and wisdom flowed around the board, and brilliant and original sentiments were uttered on our right by Mr. Horace White on Bryant's "Waterfowl," and ex-Senator Miller on our left on the blessings of wood-pulp. Mr. Murat Halstead and Colonel Cockerill figuratively fell on each other's neck, and Mr. Wylde fell on everybody's neck à la Professor Sullivan. Mr. W. J. Hill sang several pretty songs very admirably. There were only three or four lawyers present, most of them went home early, and after that the editor of the ALBANY LAW JOURNAL felt as lonely as the one righteous man in Sodom, candidly confessed his inferiority in legal journalism to any of the omniscient gentlemen around him, and deprecated their harsh judgment in his allocution. If we have any influence with Mr. Clark Bell we would say, encore, da capo, do so some more. No brighter or better idea has dawned on the arid waste of journalism, and no man is better adapted to put it into concrete form than Mr. Clark Bell.

The popularity of Shakespeare seems to continue. Volume 16 of the Bankside edition is at hand, containing the play of Henry Fifth, the players' text of 1600 and that of the first folio of 1623, with an introduction, conjecturing the sources of the play and commenting on the differences between the two texts, by the Rev. Henry Paine Stokes, of Cambridge University, England. The former text has seventeen hundred and twenty-one lines as against thirty-three hundred and seventy-six of the latter, which is a very remarkable growth. There must

be a large amount of Baconian autobiography in the latter! - Mr. Horace Howard Furness issues The Tempest in his superb and marvellously learned variorium edition. He again evinces his extraordinary insight of the spirit of the dramatist, altogether unparalleled in a scholar of such nice and critical learning. His defense of Caliban, in the introduction, is a beautiful piece of Shakespearian commentary, worth volumes of the Furnivalls and Gervinuses. We admire his scarcely-disguised contempt for the word-hunters who have so long, so industriously, and so stupidly groped about for Shakespeare's meanings. He frankly confesses that he does not care what "scamels " meaning of which he gives two solid pages of conjecture by others. The Century Dictionary says a scamel is a god wit. Well, it is clear that most of the Shakespearian commentators have none of it.

are, as to the

In American Notes and Queries, of March 12, 1892, is an explanation of the origin of the term "Lynch Law." The writer derives it from Col. Charles Lynch, a Virginian whig soldier of the Revolutionary War, who, as chief magistrate, was in the habit of holding a court at his house, in Avoca, Campbell county, for the trial of tories, who if found guilty were tied to a certain walnut tree, given thirty-nine lashes and made to shout "Liberty forever!" The prisoner was faced by his accusers, heard the testimony and was heard and gave testimony for himself. The writer says that in later times the stripes gave way to the sentence of death, "and many lives have thus closed without ceremony, but no one ever came to his death at the hands of the gallant Col. Lynch except on the battle-field." The tree itself never bore any human fruit. A wood-cut of the tree is given. So here goes another of the traditions of history.

Mr. Walter S. Perry, of Portland, Oregon, evidently mistakes this journal for an animal paper. He sends us a very merry newspaper effusion, of his own, relating to the trespass case of Williams v. Ready, 72 Wis. 408, about "the goat, the boy and the dog," and does us the undeserved honor to say: "I am confident that the able and conscientious reporter of the opinions of the Supreme Court of Wisconsin was entirely unconscious of the humor that lies in the situation described in his statement of the case; and I am quite sure that the humorist of the legal press, Mr. Irving Browne, will thank me for supplying his peculiar and highly entertaining talent with this material. I give you the statement as it stands with some few observations of my own, which are advanced merely as suggestions for Mr. Browne's future magnum opus." We vehemently disclaim this praise. The difficulty with Mr. Perry's "attempt at vindication of this persecuted trio of juvenile martyrs" is, that he (very successfully) injects fun into the case; our efforts have always been conscientiously restricted to extracting fun from the cases. Mr. Perry informs us that "the defendant had to pay but six cents; and,