the fraudulent intent of his grantor, or of the fraud, rendering void the title of such grantor. Second Division, March 8, 1892. Aldrich v. Bailey. Opinion by Haight, J. 8 N. Y. Supp. 435, reversed.

WILLS-AFTER-BORN ISSUE-EFFECT OF JUDGMENT. (1) Testator devised one-third of his realty to his widow for life, remainder to his grandchildren who should survive her, and he gave his residuary estate to his five grandchildren, to be paid to them respectively as they should attain their majority, with the provision that, if children should be born to his daughter H., "after my death and after my executors may have divided my estate," they should share in the estate de vised to the widow in preference to the other grandchildren, so that each might receive the same amount. Held, that it was the intent of the testator that such provision should apply to a child born to H. after testator's death, whether before or after the final division of his residuary estate by his executors. (2) The estate of the remaindermen was not affected by the fact that the widow elected to take as dowress instead of devisee. (3) In an action for the partition and sale of real estate of which testator died seized, the final judgment provided that one-third of the proceeds of the sale should be invested, and the income paid to the widow during life, and that at her death the principal sum should be divided between the five grandchildren of the testator, "subject however to open and let in to share in the same any children that H. shall have previously had born to her after the death of testator, and provided also that if, previously to the birth of said after-born children, a division of the residuary es tate of testator shall have been made by said executors between said five grandchildren, then said after-born children shall be preferred out of the said principal sum to be divided, to the extent as far as may be of making them equal with said five grandchildren." Held, that such judgment should be construed so as to carry out the intent of the testator, and permit a child born to H. after the death of testator, but before a final division of the residuary estate, to be preferred in the division of said principal sum after the death of the widow. (4) In an action for the construction of that clause of the will which provided for the division of the residuary estate among the grandchildren, and for the preference of after-born grandchildren out of the estate devised to testator's widow for life, the judg ment excluded after-born grandchildren from sharing in the residuary estate. Held, that such judgment did not affect the right of an after-born grandchild to be preferred in the division of the estate left to the widow of testator. Second Division, March 8, 1892. Hotuling v. Marsh. Opinion by Haight, J. 8 N. Y. Supp. 690, affirmed.

widow is an "unmarried woman," within the meaning of the Revised Statutes, article 3, title 1, chapter 6, providing that "a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage." We should suppose that the case of Brown v. Clark, 77 N. Y. 369, was a sufficient authority in point, although the testatrix in that case was a woman who had never been married at all. For any discussion as to the operation of the acts passed by the Legislature of this State in relation to married women, and their effect in conferring upon them testamentary capacity, reference may be had to that case. At common law the feme sole, in marrying, merged her legal identity in that of her husband. In the unity of person caused by the marriage relation the wife lost the control of her property, and hence of her will. Under our statutes that identity of person is only affected and separate legal capacity is only conferred upon the wife to the precise extent mentioned in the Enabling Acts. As we have repeatedly held the com

mon law has been no further abrogated than is read in the statute. Nothing has been enacted which alters the provision that her will is revoked by a subsequent marriage. There is sufficient reason for the continuauce of the rule in the changed relations of the woman. Her new status as wife induces the presumption of a new testamentary intention, and demands a new tesmentary act. The unmarried woman, referred to by the statute, must be defined according to that rule of statutory construction which requires that the words used in legal enactments shall be understood and taken in their ordinary and familiar significance. So read, the unmarried woman of the statute is the woman who is not in a state of marriage. That the Legislature could have had any other idea is both inconceivable and unreasonable. March 1, 1892. In re Kaufman's Will. Opinion by Gray, J. 16 N. Y. Supp. 113, affirmed. WILL-RIGHTS OF LEGATEES-TRUSTS.—(1) A testator bequeathed money to his executors, in trust to invest the same, and pay the proceeds in monthly installments to the testator's son for his support and the support of his daughter during her minority. The will also provided, that if the son's said daughter should survive her father, then she should have half of said money, the other half to go elsewhere. Held, that the trust continued during the son's life, although he survived his said daughter. (2) A testator who had six grandchildren bequeathed $10,000 to each of [his] grandchildren, to be paid to them on their severally attaining the age of twenty-five years," and also provided that "in the event of the decease of either of said grandchildren prior to attaining the age of twenty-five years, the share of such deceased shall be equally divi ded between the surviving grandchildren." Held, that grandchildren born after the testator's death took no share in the legacy of a grandchild who died before attaining the age of twenty-five years. March 1, 1892. In re Smith. Opinion by Andrews, J. 12 N. Y. Supp. 105, and 14 id. 947, affirmed.

....

ABSTRACTS OF VARIOUS RECENT DECISIONS.

EXECUTION-EXEMPTION-BOARDING-HOUSE FURNITURE.-Under an exemption from sale under an execution of "all household and kitchen furniture," held, that where a widow with one child occupied a house of seven or eight rooms, and took boarders incidentally for the purpose of support, that she was entitled to hold exempt from sale the furniture in the rooms occupied by the boarders. The only inquiry in this case is, was the property levied upon, within the meaning of the statute, "household and kitchen furniture?" It is not denied that the property seized was such as was adapted to household and kitchen uses, and the exemption is given to every family. The meaning of the words "household" and "furniture," as used in the statute now in force, was considered in Alsup v. Jordan, 69 Tex. 304, and we might rest a holding that the property in question was not subject to forced sale on what was said in that case, but we will notice some adjudicated cases, the holdings in which lead to the same result. In Hoopes' Appeal, 60 Penn. St. 220, it appeared that a testatrix made a bequest of her "household furniture," and a question arose as to what passed under that bequest. The testatrix was the keeper of a large boarding-school, furnished with such things as were necessary for the boarding and lodging of pupils, as well as with necessary desks and other furniture for the school-rooms, and it was held that the bequest passed all beds and other furniture used by the boarding pupils, as well as that used by the testatrix for home purposes, but that it did not pass desks and other furniture of the school-rooms. In disposing of the case the court said: "It [household fur

of a firm of brokers sued a customer to recover a balance due on a stock account. The customer's margin had become depleted, and had not been made good after repeated requests, and a panic. coming on, the customer's agent was notified by the brokers that they would be obliged to sell him out, and they did so without giving notice of the time and place of sale. The market continued to fall, so that the stock could have been purchased at the same or lower price within ten days after the sale.

The defendant's attorney moved for a dismissal on the authority of Gillet v. Whiting, 120 N. Y. 402, Second Division, opinion per Haight, J.

In this case the court held that the sale without notice was wrongful, and operated as conversion. Citing Markham v. Jaudon, 41 N. Y. 235; Baker v. Drake, 66 id. 518, and the opinion then proceeded to state:

"The learned General Term was of the opinion that the fact of conversion did not go to the whole damages asked by the plaintiffs, but entitled the defendant to a reduction of the plaintiffs' damages by the amount proven to have been suffered by the defendant from the sale at the particular time when it took place, and that no such amount was proven. We do not understand this to be the law. This action was based upon performance of the agreement by the plaintiffs, in which they undertook to carry for the defendant the stock purchased, and if, instead of performing the contract on their part, they converted the stock to their own use, they have no ground of complaint or cause of action against the defendant."

The plaintiff's attorney in the Supreme Court claimed that in thus laying down the law in this case, the Second Division was in direct conflict was a long line of decisions of the Court of Appeals, among which lately decided are: Gruman v. Smith, 81 N. Y. 25, decided April 13, 1880, opinion by Church, C. J.; Capron v. Thompson, 86 id. 418, decided October 18, 1881, opinion by Miller, J.; Porter v. Wormser, 94 id. 431-446-7, decided January 15, 1884, opinion by Andrews, J.

These cases are not referred to in Gillett v. Whiting, neither in briefs of counsel nor in the opinion itself, and the presumption would naturally be that they were not brought to the attention of the court.

They are not in terms distinguished or overruled, or even criticised, and we have therefore the strange anomaly of entirely different rules of law applicable to precisely the same state of facts.

Thus the case of Gruman v. Smith, 81 N. Y. 25, was an action brought by plaintiff as assignee in bankruptcy of Fitch & Co., stock brokers, to recover an alleged balance on a stock transaction.

The evidence showed that Fitch & Co. purchased one hundred shares of Rock Island, May 14, 1870, ou a margin, and carried same for him.

Fitch & Co. called for more margin September 17, 1873, and not receiving it, three days after sold the stock without notice to the defendant, and sent him an account showing a balance against him of $1,596.29. Defendant refused to accept the sale.

Plaintiff offered to prove that the stock went below ninety, and could have been replaced by defendant, without loss, within a reasonable time after the sale. Held, that a stock-broker who sells a customer's stock held on margin, without notice to the customer does not thereby, as a matter of law, extinguish all claim against the customer for the advance. The unauthorized sale is a conversion, and the broker is liable for damages sustained by his customer, but the latter can claim no greater benefit than would have accrued to him if the act complained of had not been committed. Also held, that a dismissal of the complaint was error; but that defendant was entitled to be allowed as damages the difference between the price for which the stock sold and its market price within such reasonable time after notice of sale as would have enabled de

fendant to replace the stock in case such market price exceeded the price realized.

In Capron v. Thompson, 86 N. Y. 418, plaintiffs purchased for defendant fifty-six thousand six hundred and fifty shares of Columbus, Cleveland & Indiana R. Co. stock. Subsequently, without authority from defendant, they pledged a portion of said stock to secure a loan to themselves, and such portion was thereafter sold by the pledgee. The stock was never tendered to defendant, nor the amount due thereon demanded. Held, that the pledge and sale of the stock did not constitute a failure to perform a condition precedent, but established a breach of condition subsequent to the purchase. That plaintiffs were entitled to credit for the purchase, but were liable to damages sustained by their customer by reason of the subsequent conversion. The case of Gruman v. Smith, supra, cited and approved, and the principle there laid down is held to be applicable to this case.

Porter v. Wormser, 94 N. Y. 431. In May, 1889, plaintiff contracted to purchase of defendants, who were stock brokers, $1,000,000 U. S. four per cent bonds, which the latter agreed to carry for a specified time. Subsequently, Juue, 1869, plaintiffs gave defendants a "stop order" to sell $500,000, at 1004 ex July coupous and accrued interest, and $500,000 at 100%1⁄2 ditto. The stop order authorized a sale at the market price whenever bonds were bought and sold by other parties at the price fixed. On August 13, 1869, bouds sold at the Stock Exchange at 101 flat," i. e., carrying the accrued interest from July 1, thereupon defendants sold at that price $200,000 on plaintiff's account. The accrued interest at that time was less than one-half per cent. Next day bonds sold at 100%, and defendants sold $300,000 at 101 and 101%, and on August 15 they sold $500,000 at 101%, the lowest price on that day. The losses on the transaction were charged in plaintiff's account. The court says, page 446: "They (the defendants) had no right to sell the bonds as vendors until some default had accrued on the part of the plaintiff, but in selling the bonds they did not assume to act by virtue of any right as vendors, but only as agents under the stop order.' It is the case of an agent authorized to sell property for his principal making a sale not strictly within his authority. Such a transaction gives the principal a right of action against the agent for any damages sustained by the former." But if no damages have resulted, nothing can be recovered because both wrong and damage must occur to sustain the action. In this case not only were no damages shown, but, on the contrary, it affirmatively appears that the plaintiff was not injured by the sale of the 13th. Gruman v. Smith and Capron v. Thompson were cited and approved.

The defendant's attorney in Minor v. Beveridge con. tended that in view of this conflict of authorities, the trial court should be bound to follow the three cases of the First Division of the Court of Appeals, rather than the decision of the Second Division, in 120 N. Y.

Judge Beach confessed himself to be greatly surprised at the decision in 120 N. Y., and to be considerably puzzled at the change it made in the well-settled rule. He finally decided that he would dismiss the complaint, but directed the exceptions to be heard in the first instance at the General Term.

The case in 120 N. Y. is such a decided departure from that which has been previously recognized by the rules in regard to stock brokers that it has caused considerable discussion among the bar, and it is impor tant that those acting as counsel in stock cases should know it.

The Second Division of the Court of Appeals is of considerable assistance in disposing of business, but it is very awkward for the practicing lawyers when they find it and the First Division on both sides of a proposition in this way. G. W. W.

The New York Tribune had recently a short article entitled "Attorney-General Rosendale Wary." Either our estimable and honored friend has been misreported or there was a typographical error in the dropping of "un" before "wary." Let us premise by warning the attorney-general against reporters and interviewers. They generally misrepresent what the victim says, as we are quite inclined to believe is the fact in this instance. The following is the Tribune's account:

"What do you think of section 38 which says: 'Every officer authorized to make arrests on criminal process in any city or town in which any licensed premises are situated may enter upon such licensed premises while the same are permitted by the license to be kept open for carrying on the licensed business therein?' Does that section, in your opinion, prevent a policeman from entering a liquor store at times wheu it would be a violation of law to sell liquor, for the purpose of arresting the liquor dealer who is thus violating

the law?'

"Mr. Rosendale stroked his beard, adjusted his eyeglasses, looked over the section carefully and then replied: "I cannot pronounce an official opinion upon it off-hand, but I say this, that I think the saloonkeeper will have a common-law right to the privacy of his saloon. You know the old English rule that every man's house is his castle, and that no one has a right to intrude upon it without his consent, but whether this new law gives the liquor dealer any more rights than he had before of non-interference by the police, that I cannot pronounce upon, for I have not compared the old Excise Law with the new one.'"

Now, Mr. Attorney is too good a lawyer seriously to have applied the "castle" doctrine to a man's public place of business, especially a grog-shop. The immunity of a man's "castle" or house is because of its sacredness as his home, the sleepingplace of himself, his wife and his children, his place of privacy and retirement. We know the "beerbarons are very powerful, but we do not believe that the courts would hold that their shops and gardens, etc., are their "castles," or that this privilege of privacy extends to places of public business. But then on the point aside from the castle doctrine, we suspect that Mr. Attorney has been misrepresented. In our judgment, whatever the Legislature may have intended, they have not succeeded, by enacting that officers may enter licensed premises while they are lawfully open, in implying that they may not enter when they are unlawfully open. We think that the New York police authorities are correct in their interpretation of this enactment. There is no discussion of the disputable right of breaking, in either case, for the question is of the right to enter an open public place, and it cannot be that the unnecessary grant of power to enter when it is rightfully open carries a denial of the right to enter when it is wrongfully open. The officer must have the same power in either case, to enter to make an arrest, that a plain citizen has to enter to get his grog. So we again advise Mr. Rosendale, out of friendship, not to be seduced by the sirens of the press into giving half-cocked opinions for which he gets no pay.

There is no other class of men so generous in its estimate of its brethren as the legal profession. This is notoriously evident at bar meetings convened to mourn deceased members of the bar, and which lie like bulletins or epitaphs. But some lawyers cannot wait for death, and gush over their brethren while they are yet alive, as if their motto were, "speak of the living just as unblushingly as if they were dead." We were led into this train of thinking by glancing over the first part of a new series of legal biographies edited by Mr. Clark Bell, issued as a supplement to the Medico-Legal Journal and entitled "The Supreme Court of the States and Provinces of North America." (We would suggest "Courts,") The first number polishes up the judges of Texas and Kansas, past and present, with portraits large and small. It is noticeable that nearly every one of the Texans here chronicled "fit into "the late unpleasantness, and is a Democrat in politics. Not that they are any the worse for the former. But we should prefer their charges on the bench to those on the field, and probably to those at the bar. On the whole the Texas courts are highly respectable. To be sure the Court of Appeals once had a dangerous attack of "big-head" when it assumed to overrule the Federal Supreme Court on a point of interState constitutional law, and once in a while it is a trifle too technical, as when it holds that a verdict of murder in the "fist" degree is not good as a verdict in the first degree; but that court deserves great credit for its industry, fearlessness and general intelligence in a rather disorderly country, where it is the fashion to wear "guns" and a man's life is frequently estimated as worth less than a mule. We do not think any less of a judge because as the biographer says, as an advocate he frequently "had the court, jury and spectators in tears." We take cum grano salis his assertion that another judge, during his term has lost less time from duty, performed more arduous work, participated in the decisions of more cases, and written more opinions than any other judge in this or any other State." The biographer evidently has not heard of our Judge Daniels. There is still another judge, of whom we never before happened to hear, who "is justly regarded as one of the brightest legal lights in the United States." We shall not confine our innocuous fun to our good southern brethren. When we come to pursue the sketch of Chief Justice Horton, of Kansas (born in Orange county in this State), we are fairly dazed by the antiquity of his ancestry, traced back to 1310. We really hope none of his granger neighbors will see this biography in which is set forth the Horton coat-of-arms, in detail, with its motto, "Quod vult, vaile vult;" "what he wills, he wills cordially and without stint." So did the late Mr. Tilden will, but that was all the good it did his beneficiaries. Being ourself a consistent plebeian, we are inclined more to admire the coat-of-arms of President Franklin Pierce, which he said was his grandfather's shirtsleeves at Bunker hill. But Judge Horton is an