will be looking for a chance to add still more to the judicial places, regardless of the burdens to be thereby added to the taxpayers' already ample load. Will not the assignment of Justice Lambert to Appellate Court work in New York be made a pretext? Is there not, in fact, an endless chain, in this matter? The metropolis, not permitted by the rural Solons to elect judges enough, draws on the rural districts-which must thereupon create more justices, to supply the artificial shortage. Albany Argus. : 0: Uniform Divorce Law. We have on a former occasion referred to the re sult of the deliberations of the "national congress." and consider “disappointing" a mild form of characterization. In our judgment this movement has proved itself to be nothing more than a solemn farce. Outside of any criticisms to be made upon the provisions of the proposed bill, it must be remembered that even that bill was not actually promulgated as a basis of concurrent State action. According to the sentiment of the "congress" no additional causes of divorce should be adopted in any State, and the nominal statute is only for the guidance of such States as may be willing to reduce the number of causes already existing. We have long believed that the only feasible remedy for the present condition of interstate polygamy is the adoption of an amendment to the national Constitution giving ongress the power to legislate. We were gratified at President Roosevelt's recommendation to that end and wish that it might be taken up and agitated by all the agencies of public opinion. There are great diffifficffiuffilties, both of inertia and of conscientious lifference of opinion, to be encountered, but we do not believe that reform upon the lines indicated by the President is impossible of accomplishment. We share in the hesitation expressed by Law Notes at invading States' rights and indiscriminately conferring powers upon the Federal government. But, as we have often said, the question of uniform matrimonial status, and, flowing from it, that of the legitimacy of children, is in a class by itself, and, both as affecting personal rights and rights of property, peculiarly an appropriate matter for national regulation.-N. Y. Law Journal. "So far as the congress has attempted constructive work in the uniform divorce bill, the result must, we think, be considered disappointing. None of the States where public opinion supports a stricter divorce law will probably for a moment think of adopting this bill. In those States the looseness of whose divorce laws is one of our national shames, some benefit might be experienced from its enactment, but even here the difference is a matter of degree. Perhaps the most salutary effect of the congress will be to draw attention to the hopeless muddle of our laws on this subject and to quicken the growth of a public sentiment opposed to lax divorces. When that sentiment develops, as we trust it will with time, some future successor of the national divorce congress may find the materials ready for framing a satisfactory law. At present the task seems hopeless and beyond the powers of any set of men, however wise and right-thinking, who have not power to enforce decrees founded upon a worthier conception of marriage. Much trouble and many scandals might be avoided were it possible to have national legislation on the subject of marriage and divorce, and by this course the settled public opinion DEVISE OF LAND OWNED BY TESTATOR IN CONJUNC of the older States might override the vagaries in legislation of our newer Western sisters. President Roosevelt, with characteristic directness, recommends an amendment to the national Constitution in order that Congress may have power to legislate on marriage, divorce and polygamy. The natural advance of civilized public opinion must cause polygamy to die out even among the Mormons, and it would seem that this is not a time for adding to the powers of the Federal government unnecessarily. So many matters are coming up which may enlarge the powers of the nation in the ordinary course of things, or which may render enlargement advisable, that, unless we are to lose our dual form of government altogether, we should emphasize those powers of the States which still exist beyond dispute." : 0: Equitable Election. TION WITH ATTEMPTED DEVISE TO ANOTHER OF NEW YORK COURT OF APPEALS. CATHERINE M. BEETSON, appellant, v. MARIE E. STOOPS, respondent, impleaded with others. Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department, entered on the 21st law of November, 1905, affirming a judgment in favor of the defendant, Marie E. Stoops, and against the plaintiff. George H. Taylor, Jr., for appellant; Henry Wetherhorn, for respondent. CHASE, J.-Andrew moll and Kathrina Moll were husband and wife, and resided in the city of New York. They had one child, their only heir at law, who diel leaving two children, the plaintiff and the defendant, Stoops, then small girls, who, after the death of their father, resided with their grandparents, the said Andrew and Kathrina Moll. Andrew Moll was the owner in fee simple absoluute of the real property at No. 177 Seventh avenue, in the city of New York, and Kathrina Moll was the owner in fee simple absolute of the real property at No. 267 West Twenty-second street, in the city of New Pork. On the 28th day of June, 1887, Kathrina Moll lied intestate seized of said real property on West Twenty-second street. The title to said real property descended to her said grandchildren in equal shares, subject to the life estate of Andrew Moll, her husband. Said grandchildren continued to reside with their grandfather and he retained possession of sail real property and on that day he died seized of the Seventh avenue property. On the 4th day of February, 1902, Andrew Moll was living on said Twenty-second street property and on that day he died seized of the Seventh avenue property. He lert a will, dated the 15th day of February, 1900, by which he directed that his debts, funeral and testamentary expenses be paid. The will then providel: Second. I hereby give, devise and bequeath unto my dear grandchild, Catherina Margaretha Moll, born at New York city July 24th, 1881 (plaintiff), the house and lot known as number one hundred and seventy-seven (177) Seventh (7th) avenue (describing it), and to her heirs and assigns forever absolutely. "Third. I hereby give, devise and bequeath unto my dear grandchild, Marie Emma Moll, born at New York city March 1st, 1883 (defendant, Stoops), the house and lot now known as number two hundred and sixty-seven (267) West Twenty-second (224) street (describing it), and to her heirs and assigns forever absolutely." By the will the testator expresses the wish that each of said grandchildren will keep the real property so given to them until they attain the age of twenty-six years, and he then adds to said grandchildren, in equal shares, the rest, residue and remainder of his estate. The said two pieces of real property were each worth $24,000. Neither Andrew nor Kathrina Moll owned any other real property, and the personal property of the said Andrew Moll was about sufficient to pay his inlebtedness and the expenses of administering his estate. The will of Andrew Moll was probated and thereupon the plain- | tiff claimed the title and ownership of the Seventh avenue property under the will of Andrew Moll, deceasel, and took and has retained the exclusive pos session of the same. She then brought this action to partition the Twenty-second street property, and alleges in her complaint that she is the owner of an undivided one-half interest therein, and that the defendant Stoops is the owner of an undivided onehalf interest therein, and she further alleges that she owns no other lands as tenant in common with her sister, the defendant Stoops, and she demands judgment for the partition and sale of the Twentysecond street property, and that it be decreed that said Andrew Moll was never seized of the premises in Twenty-second street, and that he had no right or authority to devise the same or any part thereof. The defendant Stoops invokes the rule in equity that where a testator assumes by his will to devise property owned by him, and also other property not owned by him, that the perso to whom is devised the property owned by such testator cannot accept such devise, with knowledge of all the facts, without being precluded from asserting a claim to other propedty devised by the same instrument. No question arises in this court relating to the matter of election on the part of the plaintiff, because the coupnsel for the plaintiff stated upon the argument that if the plaintiff is required to elect she will accept the Seventh avenue property and renounce all interest in the Twenty-second street property. The language used by the testator in devising real property to his grandchildren is exactly the same in each case, and there is no doubt or uncertainty as to the testator's intention. The plaintiff argues, however, that the testator was in possession of the Twenty-second street property as a tenant for life, and consequently at the time of making the will he had an interest in such property. A will speaks from the death of the testator. The testator's life estate in the Twenty-seconl street property ceased at the very moment when the will took effect. He did not have an interest in the real property that survived his death and it could not be transferred by will. It is clear that the testator did not make his will with the mistaken and absurd idea that he could transfer his life estate to his grandchild, for the language of the will itself is unmistakable evidence of the testator's intention to give to the defendant Stoops the fee simple absolute of the Twenty-second street property. The facts to which e equitable doctrine of election applies are clearly established. The equitable rule invoked by the defendant has been followed by the courts for centuries, and it is thoroughly established in England and in this country. It was provided in Justinian's Institutes (Lib. 2, tit. 20, sec. 4) that a testator may not only bequeath his own property or that of his heir, but also the property of others, and if the thing bequeathed belongs to another the heir can be obliged either to purchase and deliver it or to render the value of it if it cannot be purchased. The section, however, provided that it should be understood to mean that the bequest could be made if the deceased knew that what he bequeathed belonged to another, and not if he was ignorant of it. It would seem, however, by reference to the Roman Digest (Lib. 31, 1, 67, sec. 8) and the Code (Lib. 6, tit. 42, 1, 25, and Lib. 6, tit. 37, 1, 10) that a bequest made upon an erroneous supposition that the subject belonged to the testator would not be void if the legatee stood in a certain degree of relationship to the testator or the subject was the property of the heir. The Code Napoleon substantially recognizes the rule, but reversed it by providing in section 1021 of said Code that "where a testator shall have bequeathed an object belonging to another the legacy shall be annulled whether the testator were aware or not that it did not belong to him." The rule was early adopted in England and it is there held, as it is in this country, that it does not make any difference in its application whether the testator at the time of making his will erroneously supposed that he owned the property bequeathed or knew that it belonged to another. The rule in England was stated by Lord Erskine in Thellusson v. Woodford, 13 Ves. 209, as follows: The jurisdiction exercised by this court compelling election may be thus described: A person shall not claim an interest under an instrument without giving full effect to that instrument as far as he can. If, therefore, a testator, intending to dispose of his property and making all his arrangements under the impression that he has the power to dispose all, that is, the subject of his will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to defeat his disposition, giving to that person an interest by his will, that person shall not be permitted to defeat the disposition, where it is in his power, and yet take under the will. The reason is the implied condition that he shall not take both; and the consequence follows that there must be an election; for though the mistake of the testator cannot affect the property of another person, yet that person shall not take the testator's property unless in the manner intended by the testator .. without reference to the circumstance, whether the testator had any knowledge of the extent of his power or not. Nothing can be more dangerous than to speculate upon what he would have done if he had known one thing or another; it is enough to say he had such intention; and the court will not speculate upon what he would have done in the different cases put. If the instrument is such as to indicate what the intention was, the only question is, did he intend the property to go in such a manner? not whether he had power to do so, and would have done done it, had he known he could not without a condition imposed upon another person; whether he thought he had the right, or, knowing the extent of his authority, intended by an arbitrary execution of power to exceed it, no person, taking under the will, shall disappoint it." The rule is well stated by Mr. Swanston in his notes to Dillon v. Parker, 1 Swans. 339, from one of which I quote: "The owner of an estate, having, in an instrument of donation, applied to the property of another, expressions which, were that property his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his estate in favor of the proprietor whose rights he assumed, is understood to impose on that proprietor (to the extent at least of indemnifying those whom, by defeating, the intended disposition, he disappoints), the benefit conferred on him by the instrument, if he asserts his own inconsistent proprietary rights, or if he accepts that benefit, of completing the intended disposition by the conveyance in conformity to it of that portion of his property which it purports to affect. The foundation of the doctrine is still the intention of the author of the instrument; an intention which, extending to the whole disposition, is frustrated by the failure of any part; and its characteristic, in its application to these cases, is that by equitable arrangement effect is given to a donation of that which is not the property of the donor, a valid gift, in terms absolute, being qualified by reference to a distinct clause, which, though inoperative as a conveyance, affords authentic evidence of intention. The intention being assumed, the conscience of the donee is affected by the condition (though destitute of legal validity), not express but implied, annexed to the benefit proposed to him. To accept the benefit, while he declines the burden, is to defraud the design of the donor. The doctrine of election, in common with many other doctrines of our courts of equity, appears to be derived from the civil law." In a note to the first American edition of Coke upon Littleton, vol. 1, page 525, it is said: "The doctrine of election in equity is chiefly applicable to cases where a devisee or legatee claims under and also against the will. There have been numerous cases on this subject, the result of which appears to be, that a person shall not claim an interest under an instrument without giving full effeet to that instrument as far as he can. has been said to be universal and without exception." The decisions of the English courts affecting said rule since the publication of the note by Mr. Swanston have been very numerous and approve the rule with substantial unanimity. This rule Our Court of Chancery, in Leonard v. Crommelin, as upon the general principles of right, justice and fair dealing. Its general application and the foundations upon which it rests are stated in Pomeroy's Equity (3d ed., vol. 1, sec. 461, etc.), and also by most of the other writers of equity. 1 Edwards' Ch. Rep. 206, says: "It is an elementary principle, upon which the doctrine of election is founded, that a person shall not claim an interest under one instrument (either deed or will, for it applies to both) without giving full effect to it as far as he can, and renouncing any right to property which would defeat the disposition (Thellusson v. Woodford, 13 Ves., 220), or, to use Lord Rosslyn's words, as quoted in Moore v. Butler, 2 Sch. & L., 267, no person who puts himself in a capacity to take under an instrument without performing the conditions of the instrument, and the conditions may be express or implied."" This court, in Havens v. Sackett, 15 N. Y. 365, refers to the rule as a well-established rule of the courts of equity, which may be expressed in these terms: "One who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it. For example, if a testator has affected to dispose of property not his own, and has given a benefit to the person to whom that property belongs, the legatee or devisee accepting the benefit so given to him must make good the testator's attempted disposition. If he insist on retaining his own property which the testator has attempted to give to another person, equity will appropriate the gift made to him for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of his rights. If the parties have done nothing to conclude themselves, and the court will not consider anything done in ignorance of their rights as binding them, the party whose property has been given to another will be put to his election either to take what is offered to him in the instrument, yielding up to the party who would otherwise be disappointed, his own property, or to keep what was his own, abandoning the provision made for him in the instrument." The rule is referred to with approval in Chipman v. Mongomery, 63 N. Y. 221, Haack v. Weicken, 118 It has been ap N. Y. 67, and in many other cases. proved and stated in the Federal courts (Peters v. Bain, 133 U. S. 670, 695), and in Arkansas (Fitzhugh v. Hubbard, 41 Ark. 64); Georgia (McGinnis v. McGinnis, 1 Ga. 496); Illinois (Van Schaack v. Leonard, 164 Ill. 602); Indiana (Moore v. Baker, 4 Ind. App. 115); Kentucky (Huhlein v. Huhlein, 87 Ky. 247); Maryland (Hyatt v. Vanneck, 82 Md. 465); Missouri (Keene v. Barnes, 29 Mo. 377); North Carolina (Isler v. Isler, 88 N. C. 581); Ohio (Hibbs v. Union Cent. Life Ins. Co., 40 Ohio St. 554); Pennsylvania (Zimmerman v. Lebo, 151 Pa. St. 345); West Virginia (Bennett v. Harper, 36 W. Va. 546), and other States. Equity requires in this case that the plaintiff give effect to the provision of the will giving the Twentysecond street property to her sister, the defendant Stoops, and the judgment in favor of said defendant is right and should be affirmed, with costs. CULLEN, Ch. J.; O'BRIEN, EDWARD T. BARTLETT, HAIGHT, VANN and WILLARD BARTLETT, JJ., concur. Judgment affirmed. : 0: Abuse of the Mails. The recently reported case in which the police took action against the editor of Judy-Rex v. De Marny (noted ante, p. 179)-draws attention to the fact that the law is strong enough to deal with a class of offence which is growing in extent with alarming rapidity. It would indeed be, as the Lord Chief Justice truly observed, lamentable if it were otherwise. The insertion of advertisements, after full knowledge of the circumstances, with a view to inducing readers to send money to a foreign country for the purchase of disgusting literature is now held to be within the reach of the law, and the conviction has been upheld. The legal question turned upon the Post Office Protection Act, 1884, sec. 4, which enacts that a person shall not send, or attempt to send, a postal packet which incloses any indecent photograph, book, or any indecent article whether similar to the above or not. The defence urged that no evidence was forthcoming to show that the editor had caused the books and photographs to be published or sent through the post. The Common Serjeant directed the jury to convict if they were satisfied that these documents were obscene, and that the editor know, when inserting the advertisements, that they were of this character. The Court for Grown Cases Reserved supports this direction. No reasonable man could read the evidence adduced in this case without being convinced that abstract justice has been done by the decision, and that the information given to the editor by the police before taking action removed every suggestion of harshness. Over and above the merely legal points discussed in the Judy case, there are one or two very important matters involved of general interest. In the first place, it may be inquired whether the Home Office and Scotland Yard, in conjunction with the railway authorities, will now, in view of facts in their possession. bestir themselves to ensure that the food for the mind provided on the railway bookstalls shall be as wholesome as the law requires The rule does not rest so much upon presumptions that that for the body should be. On many occa sions the authorities have been informed as to the filthiness appearing regularly in papers displayed for any eye to see. The headmasters of certain prominent schools have spared no pains to bring the facts home. It is impossible nowadays to pretend ignorance of what is going on in our midst. Secondly, we may mention that in one paper of ill-repute advertisements for "manicure" are inserted, in many of which a strange misprint occurs. The police have been furnished with facts which go to show that the establishments thus denoted are known to be the rendezvous of undesirable characters. So often is it the police experience that they are discouraged by the magistrates in ferreting out these people that they naturally enough become averse to taking action except in the grossest cases, and without any organized method. Public opinion will not for a moment tolerate impure foods and drugs; it wants but little encouragement to set its face equally against the more insidious dangers of poison in the press.-Law Times (London). : 0: Constitutional Laws Regulating Trust In vestments. Article III of the present Constitution of Pennsylvania, restraining in many ways the exercise, of legislative power, contains two sections which relegate the approval and control of trust investments to the courts. Section 7 consists mainly of prohibitions of local or special acts, but its concluding clause, taken from the old Constitution, reads: “Nor shall any law be passed granting powers or privileges in any case where the granting of such powers and privileges shall have been provided for by general law, nor where the courts have jurisdiction to grant the same, or give the relief asked for." As a drastic, immediately-operative remedy for a specific abuse within the general purview of this clause and of the clause inhibiting "Any local or special law ་ granting to any corporation, association, or individual, any special or exclusive privilege or immunity," the Convention also adopted section 22: "No act of the General Assembly shall authorize the investment of trust funds . . . in the bonds or stock of any private corporation; and such acts now existing are avoided." Though this was a severe blow to prospects and present value of many favored securities, and though saving investments heretofore made" was rather a saving of interested or too-confiding trustees than any benefit to the investments, the evils of that form of graft were too apparent even in 1872, to be ig nored. The people ratified the work of the convention after the revulsion of 1873 had struck between wind and water multitudes of these flotations, so that they were foundering one after another, or rather by squadrons. Many of the people who rigged and launched them had faith enough and money enough to buy in the hulks. We are now in the midst (perhaps a little beyond the midst!) of another career of speculative adventure in all avenues of business; and it is desirable that this time the brakes be not clapped on so late and so rudely as to contribute to the wrecking of the machine; but, on the contrary, that it be given a little necessary leeway on a smooth road, so graded and guarded, however, as to encourage the chauffeurs to go slow. It will be observed that none of the clauses of the Constitution above quoted prohibits the selection by the trustee, or the authorization or ratification by the courts, of any safe corporate security. Each of the clauses is but a prohibition of favors by special or direct legislative grant. It may even be doubted whether section 22, standing alone, would prohibit direct statutory regulations sanctioning investments in the bonds or stocks, not of any particular corporation, or of all or many private corporations indiscriminately, but in such classes and qualities of these securities as would be approved by an intelligent and cautious investor. But while such statute, consistent with a bona fide intent not to evade the Constitution and not to favor particular interests, might be held not in conflict with section 22 (or with section 7, unless the courts have the necessary power), the other construction seems to have been accepted. During the thirty-three years that the limitation has been in force, many legitimate securities of private corporations have been established in the market, and there has been a demand for legislation or other measures to protect trustees in selecting them, and thus to reduce the artificial competition of trust estates and the national banks for the already authorized securities. Yet the prevailing opinion has been that the Act of March 29, 1832 (P. L. 190), sec. 14, as extended by the Act of May 8, 1876 (P. L. 133), covers the whole area subject to legislative control. [The substance of these acts is quoted below.] It will be seen, moreover, that both the old act and its supplement leave the whole matter to the courts, where it belongs, and do not exert or assert any power of direct control. Practically, though not in form or legal effect, the acts recognize, as proper, investments-without any order of either common pleas or orphans' court -in the national, State, municipal or real securities designated, if made with due care and judgment. Since 1876 the legislature, notwithstanding the demand mentioned, has not attempted to extend even |