is immaterial what avenue was chosen. Had it been particular clause under construction, but as well from the language of the whole will, from the relations of the testator to the persons who are the objects of his bounty, and from surrounding circumstances. Kennard v. Kennard, 63 N. H. 303, 310. But little aid is to be derived from a resort to formal rules, or a consideration of judicial determinations in other cases apparently similar. It is a question in each case of the reasonable interpretation of the words of the particular will, with the view of ascertaining through their meaning the testator's intention. Robison v. Orphan Asylum, 123 U. S. 702, 707; Bosley v. Bosley, 14 How. 390, 397. The term "personal property" in its broadest legal signification, includes every thing the subject of ownership not being land or an interest in land, as goods, chattels, money, notes, bonds, stocks and choses in action generally. In the ordinary and popular understanding however it is frequently used in a more restricted sense as including goods and chattels only, and embracing such movable and tangible things as are the subjects of personal use, and it is at least doubtful whether the term "personal property" is generally understood to include money, notes and choses in action. In its popular meaning it is commonly applied to goods and chattels. It is sometimes used in wills with similar import, as where a testator bequeathed to his wife "five hundred dollars in personal property, such as she may select." Wallace v. Wallace, 23 N. H. 149. The will furnished evidence that the testatrix understood and used the term "personal property" in this restricted sense. The language of the bequest to the daughters is: "All my wearing apparel, household furniture, and personal property of every name, nature and description." In the construction of wills, as well as statutes, when certain things are enumerated, and a more general description is coupled with the enumeration that description is commonly understood to cover only things of a like kind with those enumerated. This is because it is presumed the testator had only things of that class in mind. Given v. Hilton, 95 U. S. 591, 598. By this rule of construction the words "personal property " in the bequest to the daughters are to be interpreted as em WILLS-INTENTION OF TESTATOR-CHANGING CONDITION OF PROPERTY.-Where it clearly appears by a will that the intention of the testator was to give all his property remaining after the discharge of certain legacies in equal shares to several persons named, that intention will not be defeated because after making the will, not intending to change the disposition, he changed the form of the residue from real to personal estate. The question in this case arises from a change in the condition of the property after the execution of the will. There is no evidence of any change in the relations of the testatrix and the residuary legatees to indicate or account for an intention on her part to change the apportionment of her property between them. The evidence of a change of purpose in its distribution is furnished solely by the fact of a sale of a large portion of her real estate by the testatrix, and allowing her will to remain unchanged. It is not reasonable to believe that the testatrix without cause intentionally changed the disposition of her property so materially as to reduce the shares of two of the resid uary legatees to one-fourth of the amount provided for by the will, as the property then was, with a corresponding increase to the shares of the other two. The absence of evidence showing a motive for changing the operation of the will upon the property is evidence upon the question whether any change was in-bracing only things of like kind with those enumertended by the testatrix. It is to be assumed that the testatrix understood the terms and conditions of the will, and their legal effect, when it was executed. Its provisions, applied to the property at that time, show an intention to divide the bulk of it equally between the four residuary legatees named in the will. Her property then consisted of real estate of the value of $2,900, her wearing apparel, household furniture, and like property which she was then using in her daily life, and a note against a son-in-law for about $40. The will provides that the wearing apparel, household furniture and personal property of every name, nature and description be equally divided between the two daughters; that legacies of $200 each be paid to two grandsons, and a nominal legacy to a son; and that the rest of the property-it now being in real estatebe equally divided between the two daughters, the plaintiff and a grandson. By the subsequent sale of a large part of the real estate it was converted into personal estate, and consequently transferred from the operation of the residuary clause to the special bequest to the daughters, unless the words "personal property," as used in the bequest to the daughters, are understood as used in a special and unrestricted sense. The determination of the question raised depends upon the construction to be given to the phrase "personal property." If the language is susceptible of more than one construction, in what sense did the testatrix use it? The interpretation of a will is the ascertainment of the testator's intention. That intention is gathered not only from the words of the cease. It was unnecessary and meaningless if she un ated. Benton v. Benton, 63 N. H. 289. If the language was intended to embrace every thing except the real estate, the enumeration of the wearing apparel and household furniture was superfluous. A similar construction was adopted in Dole v. Johnson, 3 Allen, 364, a case strongly resembling the case at bar, where the language of the bequest was, "All my household furniture, wearing apparel, and all the rest and residue of my personal property," and it was held not to include money, stocks, securities or evidences of debt. The language of the residuary clause is, "And as to the rest, residue and remainder of my property, it now being in real estate, I give, * *." The use of the phrase, it now being in real estate," is significant as being descriptive of the property upon which the testatrix then understood the residuary clause was to operate, and as emphasizing her intention that the property which was then real estate should be equally divided among the four residuary legatees, whatever its form or condition might be when the will took effect. The words "it now being in real estate" carry a suggestion of a possibility that the property might not be in real estate when the will became operative at her decease, and show that she did not understand that by the bequest of personal property any part of what was then real estate would in any event be included. The use of this language was consistent, in the view that the testatrix understood the bequest to the daughters as including only the wearing apparel, furniture, and articles of like kind which she might have at her de derstood and intended the bequest to the daughters to include every thing but the real estate. The provision of the will authorizing the executor, for the better settling and dividing of the property among the devisees, to sell all the real estate of which the testatrix might die seized, and from the proceeds to pay the funeral charges and debts, erect suitable grave-stones, "divide my personal property between my two daughters as above mentioned," pay the money legacies to the persons named and the expenses of administration, furnishes evidence that the testatrix understood that the personal property to be divided between the two daughters included only the wearing apparel and furniture, and goods of like character. It is evident from this clause in the will that the testatrix intended and understood that the residuary legatees should receive, not land, but money; and that the real estate, when converted into money by a sale, would not pass to the two daughters under the special bequest of the personal property to them. The language of the whole will, considered in the light of the circumstances under which it was made, the condition of the property and the relations existing between the testatrix and the residuary legatees, indicates that the term personal property was used by the testatrix in the bequest to the daughters as embracing goods and chattels only, and not as including money and choses in action. In this view the sale and conversion of the real estate into money did not affect the disposition of the property under the will. N. H. Sup. Ct., July 19, 1888. Bills v. Putnam. Opinion by Clark, J. MEETING OF THE GENERAL COMMITTEE AT the meeting of the general committee of the State Bar Association, at the Capitol, on the 19th inst., an extensive and, with but few exceptions, complete programme for the next annual meeting of the Association was arranged by the committee, consisting of the following gentlemen: Arthur L. Andrews, chairman: Senator Wm. H. Robertson, Katonah; Julien T. Davies, New York city; Simon W. Rosendale, Albany; Jesse L. L'Amoreaux, Ballston Spa; Matthew Hale, Albany; R. A. Parmenter, Troy; E. Carlton Sprague, Buffalo; Robert T. Turner, Elmira, and J. W. Near, Hornellsville. The secretary, L. B. Proctor, an ex officio member of the committee was present, and reported large additions to and rapidly increasing interest in the Association in all parts of the State. The programme will be different from the one carried out last year. The first day of the meeting, Tuesday, January 15th, will be held in the Senate chamber and will be devoted entirely to the addresses of the president, Martin W. Cooke, of Rochester, and Hon. T. M. Cooley, President of the Inter-State Commerce Commission. On the evening of the same day a banquet will be given, where it has not yet been decided. One of the leading and most interesting features of the anniversary will be the discussion of practical legal questions, interesting to the public as well as to the profession, by eminent lawyers from this and other States. The committee adjourned, subject to another call to complete the programme, at which time the subject of Judge Cooley's address will be announced. It is the design of the committee to make the coming meeting one of the most prominent and interesting convocations that will take place at the Capitol during the coming winter. A. L. ANDREWS, Chairman. NEW BOOKS AND NEW EDITIONS. COCHRAN'S LAW LEXICON. The Student's Law Lexicon, a dictionary of legal words and phrases, with appendices explaining abbreviations and references to reports and giving the meaning of Latin and French maxims commonly found in law books. By William C. Cochran. Cincinnati: Robert Clarke & Co., 1888 A concise and apparently useful work for students. It seems to contain the principal titles. It would have been an improvement to have put abbreviations of legal phrases and of titles of reports in separate tables. POOR ON REFEREES. This is by Walter S. Poor, and is published by L. K. Strouse & Co., New York, and contains about 400 pages. It embraces actions and special proceedings, and covers the subjects of references to hear and decide and references merely to report, is amply furnished with authorities, and has a large number of forms. It seems to be well done and without padding, and takes a place not at present supplied by any other work. MORSE ON BANKS AND BANKING. by Little, Brown & Co., Boston. The work has been This is the third edition, in two volumes, published before the profession for eighteen years and has won for itself an undisputed place and an excellent reputation. It is a most excellent treatise in every respect. It considers 3,400 cases-twice as many as the last edition. The subject is of vast importance and demands this independent treatment. We have often used the work, and can speak from personal knowledge of its great merit. ABBOTT'S NEW PRACTICE AND FORMS. The second and concluding volume of this work by Austin Abbott is now published. We found occasion to commend the first volume most heartily, and need now only emphasize what was then substantially said -that it is unquestionably the best treatise on the subject ever offered to the profession. It is published by Baker, Voorhis & Co., New York. THE COURT OF APPEALS DECISIONS. following decisions were handed down Tuesday, Oct. 23, 1888: Judgment affirmed with costs-Sarah V. Denise, respondent, v. Daniel S. Denise, adm'r, etc., appellant. appellant, v. Charles T. Redfield, respondent. -Judgment affirmed with costs-Jessie A. Redfield, Judgment affirmed with costs-Mary J. Peck, appelrespondent.—Judgment affirmed with costs-Charlant, executrix, etc., v. D. Cady Smith, executor, etc., pellants, v. George H. Everet, respondent.—Motion lotte A. Wakeman and others, executrices, etc., apto dismiss denied, and undertaking permitted to stand on payment by appellant of $10 costs of motion-Patrick K. Murphy, an infant, by guardian, etc., appellant, v. William H. Mairs, respondent.-Motion to appellant, v. John H. Perry, respondent.Motion to dismiss granted with costs-Frederick K. Wagner, prefer granted without costs-Mary C. Remer, respondent, v. Long Island Railroad Company, appellant. Motion to restore case to calendar granted Reuben G. Wright, respondent.-Motion to strike without costs-William H. C. Shepard, appellant, v. case from the calendar denied with $10 costs-George L. Nay and another, administrators, etc., v. John M. Curley. A The Albany Law Journal. ALBANY, NOVEMBER 3, 1888. CURRENT TOPICS. MORE tyrannical exercise of judicial power was never seen than that exhibited by Chief Justice Austin in the Bahamas, in the case of a prisoner who after sentence committed a serious assault upon the judge, and was thereupon condemned to undergo thirty lashes and penal servitude during his natural life. It is almost inconceivable that such a sentence should have been pronounced by any magistrate in his senses. Every court should possess the independent power of protecting itself from insult and violence, and therefore it is impossible to approve the policy of those States which, as has been stated, require the finding of a jury before a person can be punished for contempt. But the magistrate who inflicts such a disproportionate punishment commits himself rather than the offender. Mr. Elliott F. Shepard should send him a copy of the Mail and Express with the following at the head of the editorial department: "He that hath no rule over his own spirit, is like a city that is broken down and without walls." If this business of allowing practical tests in evidence is not discouraged by the courts it will soon afford a basis for an independent treatise. This journal has undertaken to keep track of the cases on the subject, and yet some must have escaped us, for such tests are seldom heard of except in the trial courts. In a recent murder case in New Jersey, says the National Law Review, "the defense was that the deceased fractured his skull by a fall during the altercation. To prove that this was probable, Dr. Andress was called as an expert. He had a large package which he fondly handled, and while telling his story, unwrapped. He said that on January 9th he visited New York and procured a head taken fresh from the body of a man sixty years old. Returning to Sparta he fastened it on an apparatus resembling a human body, the whole weighing about ninety pounds. This was dropped from an angle of forty-five degrees, the skull striking a round stone. It was fractured worse than that of Morris, although he weighed one hundred and eighty pounds. The prosecution were so surprised they forgot to object, and before any one knew what was coming, the shrunken and ghastly trophy of medical experiment rolled on the floor. The effect was electrical. Woman shrieked, men shrunk backward, and the court turned pale. One woman fainted, and for a few moments the room was filled with uproar, the persons in the rear striving to get a view, while those in front retreated from the grinning skull. When order was reVOL. 38 No. 18. stored the head was taken from the court, and on an objection the whole evidence was stricken from the records. The court said that the principle involved was unsettled in this State, and somewhat resembled the evidence on which the McPeek Case was taken to the Supreme Court." The experiment reminds us of the rape case in Michigan, where the girl testified that the defendant had dragged her over a fence. The defendant's counsel, to contradict her, offered evidence of unsuccessful experiments to lift girls over this fence! Among marked newspapers which accumulated on our table during vacation was a copy of the Philadelphia Times, containing an account of the summary disposition by Judge Finletter, in the Common Pleas in that city (we believe), of an ejectment suit against a kindergarten school-mistress. It seems that the Times had published the day before a humorous account of the proceedings, of which however no complaint was made, at least in open court, and which did not appear to have come to the knowledge of any of the jury. On the convening of court in the morning the Judge observed: "An article has appeared in one of the morning newspapers widely circulated and largely read giving a lengthy, amusing and no doubt entertaining account of the proceedings in this case yesterday, which is calculated to affect the rights of the parties litigant. The jury may or may not have read this article, or have been influenced or endangered or prejudiced by it, and I will not ask them if they have read it. I cannot however consistently, with a judicial sense of fairness or right, permit any parties litigant here to be subjected to such risks. It is essential to the proper administration of justice that juries should be influenced only by the evidence and the law of a case as they hear them in court. It is no pleasant duty to summarily end a cause which has already taken up so much of the public time, but under the circumstances it is clearly my duty to withdraw a juror and continue the case. The jury are discharged from further consideration of this cause." This seems, upon the present showing, a very extraordinary, and so far as we can recollect, an unprecedented proceeding. It is hard indeed upon suitors if they can be put to the expense of several trials because some "funny man" on a newspaper chooses to entertain his readers with a humorous account of the case or the conduct of it. The Times very pertinently asks: "Shall we abolish newspapers or courts?" Especially singular does it appear when there were no proof that the article had influenced or even been seen by the jury. If this is to be the rule of procedure it would be very easy for a defendant, fearing a verdict against him. to procure the "funny man" to work a continuance by making merry over the case in a perfectly unobjectionable way. It would be difficult to sustain such action in those States which hold that a verdict is not invalidated by the fact that the jury cal study as to which there are no 'schools,' it will do all that can be asked. Its licentiates will be too intelligent to indulge, as a class, in vagaries, sectarian medicine will disappear or dwindle to insignificance, and the physician will be free to follow where the torch of truth lights the way." We observe that in Massachusetts very recently a woman was allowed to recover for services rendered as a "faith-curer" or "mind-curer." On the other hand, in this State, we believe, an apothecary was fined fifty dollars for looking at a customer's tongue and selling him some medicine adapted to his symptoms. IN NOTES OF CASES. Mr. W. A. Purrington, counsel of the Medical Society of the county of New York, read an interesting and clever paper before the Social Science Association at Saratoga in September, on the question, "How far can Legislation aid in maintaining a proper standard of Medical Education?" He pretty severely arraigns our statutes on this sub- N Ex parte McNulty, California Supreme Court, ject, especially for the lack of a State board of September 28, 1888, it was held that it is not a medical examiners. He makes the following rec- crime for a physician to advertise. Thornton, J., ommendations: "Legislation can aid in the educa- said: "I cannot hold that the Legislature has the tion of all these fellow-workers chiefly by vesting constitutional power to enact a law punishing a the licensing power in a central board of medical physician who has been decided to be competent to examiners, and to some extent under the diploma practice, as was the case with the petitioner here, standard: 1. By fixing a minimum age under which when a certificate was issued to him, for what is they will not be allowed to practice their calling. styled 'unprofessional conduct,' and as advertising 2. By requiring of each of them a fixed term of himself in a newspaper and in a printed pamphlet study of certainly not less than two graded years, as a specialist in certain enumerated diseases. This leaving to the board, where created, the care of de- goes beyond the police power, under which power tails. 3. By requiring proof by examination or the statute to be considered was enacted. That a certificate that each candidate for license had stud- rule of professional conduct by a board of medical ied, before beginning his professional course, at men prohibiting such advertisements and declaring least those branches of a general education in which them unprofessional, can be declared a misdemeanor law students are examined in this] State before they and punished, would extend the police power becommence their legal studies. 4. By declaring that yond whatever has been allowed. As well might no medical school—including in the terms schools the board declare that wearing any other hat than of dentistry, pharmacy and midwifery - shall be one of a white color by a physician should be unincorporated by special act, and providing a gen- professional conduct, and cause it to be punished eral law for the incorporation of such schools only as a misdemeanor, The advertisement of the charupon proof made of the possession by the incor- acter mentioned does no harm to any one. It may porators of sufficient capital-say not less than a be of benefit to the public by giving to the subjects hundred thousand dollars and teaching plant to of the diseases mentioned information of the existjustify the belief that the school will be capable of ence and residence of a person who has peculiar exercising faithfully its franchises. 5. A skill in curing them. Such laws are passed to preminimum course of medical study should be pre- vent injury to the community, not to prevent or scribed, in which a grade of at least seventy per exclude a benefit to it, We are told that at one cent should be attained on examination. ** time the able and celebrated Hahnemann, a compe6. Finally, the law should not recognize any di- tent and properly licensed physician, was proseploma as of itself conferring a right to practice cuted and persecuted in a German State for commedicine. Even if the possession of such a docu- pounding his own medicines, under a law enacted ment should be required as an antecedent to examiin the interest of apothecaries. I cannot conclude nation by the health board, it should not be al- that such a statute here could be regarded as a lowed to take the place of such examination." He valid exercise of power under our Constitution. advances broad views as to sectarianism in medi- Professional etiquette prescribed by a class of men cine, saying, "the law has nothing to do with so eminent in standing as the medical practitioners medical theories; " "if possessed of that qualifica- of our State is a matter to be regarded and retion," education, "the society concede that the spected, but it has its limits, and I cannot conceive practitioner has a right to use whatever system that a violation of it by a competent physician can may commend itself to his understanding or lack ever be by the State made a penal offense. The of understanding;" "if the law will forbid the rules in regard to such etiquette between the mempractice of medicine to all but those who give bers of the medical, as between those of the legal proof of a fair general education, and reasonable profession, must find their enforcement from a attainments in the branches of sciences and medisource other than the State. It is highly proper * * * * and just that it should be so. As the State cannot make the conduct of petitioner penal directly, it cannot do so indirectly. To hold, as contended here by counsel adverse to the claims of petitioner, would be to affirm the validity of a statute in which an attempt is seemingly made to accomplish that indirectly which cannot be directly done." See People v. McCoy, 37 ALB. LAW JOUR. 113; 38 id. 122. pen. buggy, drove upon a visible and dangerous landslide in the road, and thereby his buggy was upset and he was injured, he is not entitled to recover. The court said: "To render a county liable for an injury sustained on a highway, the defect, either alone or combined with some matter of pure accident, for which the plaintiff was not in fault, must have been the sole cause of the injury. Hawes v. Fox Lake, 33 Wis. 438. In Wilson v. Charlestown, 8 Allen, 137, it was held that a person who voluntarily attempted to pass over a sidewalk which he knew to be very dangerous by reason of ice upon it, maintain an action against the town, which was which he might easily have avoided, could not bound to keep the way in repair, to recover judgment for injuries sustained by falling upon the ice. The duty of the county to the travelling public does not extend to the degree of keeping its roads in such a condition that no injury can possibly hapWhile the proper degree of care is required from the county, so upon the other hand, at least ordinary care is required from the traveller. He cannot shut his eyes against apparent dangers and drive recklessly along the highway. He is bound to keep his eyes open and maintain a proper degree of watchfulness against danger. Hubbard v. Concord, 35 N. H. 52. He cannot, with impunity, drive into or over a dangerous place in the highway, simply because he cannot pass without doing so; neither can he drive against an obstruction because it happens to be in the highway. Raymond v. Lowell, 6 Cush. 524. If the plaintiff ble or reasonable person would have incurred it, in voluntarily incurred danger, so great that no sensithe absence of negligence on the part of the defendant that exhibits a design or intention to wantonly injure him, he will be precluded from a recovery. ***Let us apply these legal rules and principles to the facts proved in the case at bar. The plaintiffs proved the following facts: On July 17, 1887, passed over road section No. 72, a public road in the plaintiffs, with their child, in a one-horse buggy, dence and the church there was a land-slide in said Ritchie county, to church. Between their resiroad, consisting of dirt and rocks which had come * * ** In Sandford v. Clarke, Q. B. Div., June 26, 1888, 59 L. T. Rep. (N. S.) 226, it was held that as a weekly tenancy was a reletting by the landlord at the beginning of each successive week, if his premises were in a defective condition at the beginning of the week in which the plaintiff was injured by reason thereof, the landlord would be liable to her in damages. The court, by Wills, J., said: "I express no opinion as to the case made by the plaintiff, but she gave evidence that for some considerable time before the date of the accident the plate over the hole of the defendant's coal cellar was defective, and the accident was the direct consequence of the defect. This is not the case of a perfectly proper apparatus which the tenant leaves in a dangerous condition in order to spite the landlord and to do him an injury, as was suggested by the defendant's counsel. It seems the tenant was a weekly tenant, and it follows that unless there are special terms as to the tenancy the landlord is entitled to enter upon the premises at the end of every week, and his allowing his weekly tenant to remain is a practical reletting by him. If the landlord at the beginning of any week let the premises in a proper condition, but during the week the coal cellar became defective, the tenant would be liable; but if they were defective when the landlord let them, then he would be responsible. An owner of real property is bound to maintain his premises so as not to be dangerous to persons frequenting the highway of which they form a portion. It seems to me that the liability is clear on the authority of Gandy v. Jubber, 5 B. & S. 78; that was a case of a tenancy from year to year, and the Court of Queen's Bench held that the nature of the tenancy was such that the landlord might re-enter at the end of every year, but the Court of Exchequer Chamber, in the undelivered judgment referred to, thought that view was erroneous; and Martin, B., in Bartlett v. Baker, 34 L. J. 11, Exch.; 3 H. & C. 153, was of opinion that the decision of the Queen's Bench was not right. That decision was due to the mis-depth at the lower edge of the land-slide. Upon apprehension of the true nature of a tenancy from year to year. That tenancy does not of itself mechanically come to an end, but requires legal notice on the part of either side to terminate it. This case falls within the principle of Gandy v. Jubber, as decided by the Court of Exchequer Chamber (ubi sup.) from the bank above into and across the road to land-slide was ten or twelve feet wide, near four within about two feet of the lower edge. Said feet deep at the upper edge of the road, and extending, with a gradual descent, to a few inches in their return from church on the same day, and in crossing said land-slide, two wheels of the buggy passing over a rock about six inches high, and near the middle of the land-slide, the buggy suddenly pitched forward, and thus frightened the edge to frighten him, and thereupon the horse ran horse, there being nothing else to plaintiffs' knowlaway. Plaintiffs reined the horse to the upper side of the road, the buggy running in a tilt upon two In Phillips v. Ritchie County, West Virginia Su- wheels; and at a distance of about forty feet from preme Court of Appeals, September 15, 1888, it the land-slide the buggy turned over, two wheels was held that where the plaintiff, sitting in his thereof having ascended the bank at the upper side and a new trial must be had." |