his case fully and sufficiently represented in the court below. The profession, on reading it, would not esteem it a safe or valuable precedent.

In the later case of State v. Hoyt, 46 Conn. 330, that court qualified its rulings by holding that proof of the insanity of a person accused of crime is a matter of defense wholly, and the burden of proving it rests on the accused.

The case of State v. Pike, 49 N. H. 399; S. C., 6 Am. Rep. 533, was decided in 1870. The defeuse relied on was dipsomania-an inordinate craving of alcoholic stimulants. The defendant was convicted of murder in the first degree. The chief questions discussed on error arose on the refusal of the court to give the following instruction to the jury: "The defendant requested the court to instruct the jury that the sanity -the mental capacity of the defendant to commit any crime charged in the indictment-is a fact to be proved by the State beyond all reasonable doubt; that there is no legal presumption of sanity which can have any weight with the jury as a matter of law; that there is no legal presumption of sanity which is a substitute for evidence, or which, as a matter of law, affects the burden of proof in criminal cases." An offer had been made in the court below to prove by non-expert witnesses their naked opinion that the accused was insane when he committed the homicide. This testimony had been rejected, aud it was claimed that in this ruling there was error. The majority opinion of the court was delivered by Smith, J., affirming the judgment, in which all the justices, except Justice Doe, appear to have concurred. Then follows a most elaborate opinion by Justice Doe, which I can but regard as a dissenting opinion, although not so expressed in the book. It covers thirty-six pages, discloses much thought, reading and research, and is expressed in a bright, incisive and combative style. He first devoted many pages to prove that all witnesses-non-experts as well as experts-should be allowed alike to testify to their opinions of a prisoner's insanity. In this he opposed the views of his brother justices, and he stands opposed to our uniform rulings, which I need not cite. He also declared in terms that "there was error in the refusal of the court to instruct the jury that there is no legal presumption of sanity; and also in the instruction that every person of mature age is presumed to be sane until there is evidence tending to show insanity." In this he also stood opposed to his brother judges. He did more. He antagonized every authority I have ever seen or heard of on the subject.

And

as I understand his position, he took the ground that there are no legal tests on the subject of sanity or insanity; that the judges can give no direction for determining such issue, and that it is solely and purely a question of fact, to be determined by the jury on the sworn testimony before them. The presiding judge must give no instructions or directions as to the constituents or classifications of mental disorders, nor as to the dividing line which separates accountable sanity from irresponsible insanity. To allow him to do so would be to receive unsworn testimony from a non-expert witness. The result of this is that the judge must sit quietly by in his supposed ignorance, as a silent looker on, while the forensic battle is waged between opposing counsel, with their expert opinion testimony before the jury, as the sole triers and arbiters of the facts. Who is to determine the pertinency of the evidence offered? Not the presiding judge, for not knowing what constitutes insanity, he can not know what facts and circumstances tend to prove its existence. Can there be judicial adminis tration without a presiding umpire to determine the disputes of opposing litigants? As well put a locomo

tive engine in motion without an engineer, or launch a ship without a pilot or rudder.

The error of Judge Doe's position, as I understand it, and in fact of the whole New Hampshire court, lies in the assumption that the question of sanity or insanity is one purely of fact. I admit it is largely so, but no question of judicial contestation can ever become solely a question of fact. Law pervades every human transaction, every question of status, every inquiry of right and wrong, as vital force pervades every fibre, every corpuscle, of the living animal. The legal element may be agreed between the contestants, and hence may not be visible; still it is there, and denies and determines what the issue is, and how the suit is to be maintained or defeated.

It is my opinion that the inquiry of insanity, like most others in judicial administration, is a mixed question of law and fact. Of law, as to the extent and measure of mental disorder which absolves from legal accountability; of law, necessarily, in determining the pertinency of testimony offered in proof or disproof of the alleged mental disorder. Like most, if not all, other courts whose utterances on these questions have fallen under my observation, this court stands unmistakably committed to this doctrine. Hence we have held that what is called emotional or moral insanity is not a disease of the intellect, but sheer depravity-a surrender of the higher teachings of conscience to baser and debased passions, instincts and appetites. This we hold, the intellectual faculties remaining sound, is no defense to a criminal accusation. Hence we have held (and I understand my brothers as asserting it in this case) that to excuse conduct otherwise criminal, on the plea of insanity, the mind proper, as distinguished from the emotions, must be diseased, and the act charged must have been connected with that disease as effect with cause. Hence we have held, and so decide in this case, that on the trial of such issue in the primary court the presiding judge is within proper bounds when he determines what testimony is and what is not pertinent to the issue.

It will be observed that the cases I have collated and considered were decisions made by courts which hold that moral insanity is a defense to a criminal prosecution. I think this fact should be considered in weighing their value as authority. The phrases, "sudden impulse" and "overpowering or subverting the will," are frequently encountered in the opinions delivered in those cases. Impulse is emotional rather than intellectual. It is a sudden emotional influence brought to bear on the will as an intellectual faculty, and as a rule not the offspring of the reasoning faculties. It is rather the antithesis of a formed judg ment. It differs from the cognitive knowing faculty, and not infrequently so dominates the latter as to acquire for the time the mastery of the will. The will, the executive faculty of the mind, cannot with propriety be said to be subverted. To be subverted or overturned is to cease to have purpose-to cease to act, for without the function of the will there can be no physical action. The will retains all its power, but for the time ceases to act in harmony with the knowledge-possessing faculty. It is perverted, but not subverted. I am speaking in common parlance, and employing language in its popular sense. When the will is perverted by a disease of the brain or intellectual faculties, then any act caused thereby is blameless in the sight of the law. On the other hand, if there be no disease of the intellectul faculties, and the act done, though by a perverted will, is nevertheless the offspring of moral depravity, debauched appetite, blunted sense of right, or other kindred prompting of a wicked heart, then for such an act there is a moral

and legal accountability in the amplest sense of those terms. The murderer, the assassin, the burglar, the incendiary, can truthfully plead that their wills have ceased to be the executors of their intellectual promptings. Criminal passion or appetite has obtained mastery over their higher and purer intellectwal endowments, and perverted their wills to its baser I have indulged in these reflections, because I think the expressions, "sudden impulse" and "subversion of the will," are inaccurate and misleading, at least under our jurisprudence.

uses.

Keeping my self reasonably abreast with advanced thought, and with the later and better understanding of mental disorders, I am willing to disclaim as untenable one of the tests of legal accountability declared by the judges in the McNaghten case. This was a case of partial insanity, called "mental delusion." There can be no difference, in a legal point of view, between delusion, illusion and ballucination. In that case it was said that the delusion would be a defense only when the supposed facts, if real, would have justified the act done. This rule is too exacting. At the head of this opinion I have presented my views of the questions discussed in the form of syllabi.

In the present case the wife and daughter were tried and convicted of the murder of the husband and father. The homicide was perpetrated with a gun in the hands of the daughter, at the alleged instigation of the wife. The defense interposed for the daughter was idiocy. The wife's defense was insanity, in the form of mental delusion. The delusion or hallucination was her alleged belief in a superuatural power and influence the husband had and exercised over her, by which he could bring sickness and even death upon her. That by the exercise of this power, he had brought on her protracted sickness, and she feared and believed he would ultimately destroy her life. Of course this fear and belief could only be gathered from her own conduct, and expressions of belief and fear. If this delusion proceeded from mental disorder or defective mental organism, it is questionable if the case does not fall directly within the rule declared in the McNaghten case. If the wife believed her husband possessed supernatural power over her, by which through unseen influences he could bring upon her disease, and even death; that he had exerted that power, and caused her to be sick for a great length of time, and she believed, intended ultimately to take her life-in what manner could she rid herself of such impending peril? She could not flee away from it if she would, for the power being supernatural, it could pursue her whithersoever she fled. Supposing her delusion to be a fact, how could she save her own life by any preventive measures short of taking his?

Was her alleged delusion insanity? Was it, if it existed, a disease of the reasoning faculty? What say psychological experts on this subject? It is believed that the delusion claimed for her is a very common superstition with the grossly ignorant, particularly among the colored population. Less than three centuries ago the whole English-speaking people labored under this delusion or superstition, and called it witchcraft. So firmly did they believe it that they made the practice of it a capital felony. Many unfortunates to whom this dark art was imputed paid the penalty by the most torturing of all known methods of inflicting the death sentence. Were our ancestors, from the king on his throne to the laboring peasant, all insane? Even the great and good Sir Matthew Hale was a believer in witchcraft. He said "that there were such creatures as witches he made no doubt at all; for first, the Scriptures had affirmed so much; secondly, the wisdom of all nations had provided laws against

such persons, which is an argument of their confidence in such crime." On the other hand, if the great, the noble and the learned, two or three centuries ago,slaughtered men and women indiscriminately as the imputed possessors of this demoniacal power, and under all the forms of law and for the public welfare, is it right to make an example of one ignorant, superstitious woman, if she destroyed one life, as the only means, to her benighted vision, of saving her own? Of course this is stated on the hypothesis that she really believed her husband possessed and was exercising this dangerous power.

Let us pursue this line of thought a little further. In the world are very many religious faiths, each perhaps asserting a divine or supernatural inspiration. Take three of the most prominent, the Christian, the Mohammedan and the Buddhist, each numbering its adherents by the hundred millions. With each of these faiths the profession of the other two are mere superstitions or hallucinations. Are the invocations to Allah and to the Enlightened One any more an illusion to our comprehension than Christian worship is to theirs? Our faith, we maintain, is founded alike on Divine revelation and the inherent evidences of its purity and truth. Is their mental delusion a species of partial insanity? And if in the zeal of the religion of Mohammed, propagation by the sword is believed to be a duty, is such act to be excused on the score of mental illusion? What of the believers in spiritualistic materializations, mind-reading, and the many other isms which live their brief day, and are not without a following? Are the believers in such supernatural power mentally diseased? Such inquiries may be amusing, if not interesting, to the visionary and speculative. They can only bewilder, when applied to the actual transaction of business life. Judicial administration is too real to enter upon such doubtful and dangerous speculations. In the language of Judge Curtis: "It searches after those practical rules which may be administered without inhumanity for the security of civil society, by protecting it from crime. It inquires, not into the peculiar constitution of mind of the accused, or what weakness, or even disorders, he was afflicted with, but solely whether he was capable of having, and did have, a criminal intent." I hold we should take our steps cautiously inadopting the theories of psychological enthusiasts, lest we disarm retributive justice of all its restraining energy.

This is a dissenting opinion, and I wish to be understood as intimating no opinion, either one way or the other, on the sufficiency or insufficiency of the asserted insanity relied on in this case. It being, under the opinion of my brothers, a question of fact for the jury, I will leave it to them, without any attempt to bias them by any thing I may say. I regret the necessity I have felt resting upon me of differing with my brothers in this case. I regret what I conceived to be a duty to express my views so much at length. On a question of less importance, I would not have done so. I have feared however, and still fear, that the effect of their ruling will be to let in many of the evils which result from allowing the defense of emotional insanity. I acquit them of all intention to alter the rule of this court on that subject. Still I think the line cannot be too clearly and sharply drawn which separates the pitiable, unfortunate victims of diseased mental faculties from the recklessly depraved, whose chief evidence of insanity is found in the causeless atrocity of their crimes. Human life has become all too cheap; and while we spread the mantle of mercy over the criminally irresponsible, the lawless should be made to feel that the way of the transgressor is hard. The terror of the law may thus become a minister of peace.

WILL-EXECUTORY DEVISE-CONDITIONAL

ESTATE.

VERMONT SUPREME COURT, SEPT. 21, 1887.

RANDALL V. JOSSELYN.

A will provided that "when my son has attained the age of twenty-one, or at my decease, if thereafter, he is to have the management and control of said property, which I give to him and heirs absolutely, provided he has chil. dren or their descendants who can inherit said property, or the avails of the same, from him at the time of his de cease; but in the event of his death without children, or their descendants who can inherit from him, I then will and direct that all my said property go to my nephew

and his heirs, or to his children and their descendants, in the event of his death before the death of my said son." Held, that this was an executory devise, and that the son took a conditional estate only, subject to be defeated by his death without children or their descendants surviving him.

BILL

ILL for construction of a will. The opinion states the case.

William E. Johnson, for orator.

French & Southgate, for defendant.

WALKER, J. The testatrix, Sarah S. Randall, devised and bequeathed all her estate, real and personal, to her son, Charles E. Randall, who was her only child and heir, subject to the following conditions and limitations: "In the event of my decease before my son shall have attained the age of twenty-one years, I leave the care and management of my property, for the benefit of my son, to my executor hereinafter named, until my son shall have attained the age of twenty-one years. My said executor is hereby authorized before my son arrives at such age, with the consent of my son, to change any of my property into money or other property, for the benefit of my son, if my executor and my son deem it best to do so. When my son has attained the age of twenty-one years, or at my decease, if thereafter, he is to have the control and management of said property, which I give to him and heirs absolutely, provided he has children or their descendants who can inherit said property, or the avails of the same, from him at the time of his decease; but in the event of the death of my said son without having any child or children or their descendants who can inherit from him, I then will and direct that all my said property, or the avails of the same, if changed into other property or into money, go to and become the property of my nephew, Lloyd Norris Josselyn, my sister's only child, and his heirs, or to his child or children, and their descendants, in the event of his death before the death of my said son."

The will was duly probated. On the settlement of the executor's administration account there was left belonging to the estate of the testatrix certain personal property, a piece of land in Wisconsin, and a dwelling-house, outbuildings and land adjoining in Woodstock, Vermont, which were occupied by the testatrix as her homestead at the time of her decease. All the residue of her estate was, on the 2d day of August, 1882, decreed by the Probate Court to the orator, the said Charles E. Randall, pursuant to the terms and provisions of said will, and he being then of full age, received possession of the whole estate from the executor. He now desires to sell and convey the real estate situated in Woodstock aforesaid, if he has authority under the will to convey a good and perfect title to the same in fee, and brings this bill in chancery for the purpose of having the court determine what right and interest he has in the real estate in Woodstock under the will, and prays that he may be

permitted to sell and convey the Woodstock premises on such terms as to the court may seem meet and proper. The decree of the Probate Court did not settle the question involved. The question arising then in the case is what estate the orator, Charles E. Randall, took in the devised premises under the will of the testatrix.

In determining this question the whole will must be considered, and all the clauses construed together. In no other way can the intention of the testatrix be ascertained. In construing the will, the mind and intention of the testatrix, if it can be discovered, must prevail, unless that intention is in conflict with some fundamental principle of law, which ought not to be disregarded to meet the wish or caprice of the testatrix. There is a devise or gift to the orator as first taken, and a limitation over to the defendant, Josselyn, or his children and their descendants. Effect must be given to both, if consistent with the rules of law, if such was clearly the intent of the testatrix. It is contended by the orator that the will gives him, as first taker, power to dispose of the whole estate, and that this power is inconsistent with, and therefore destructive of, the limitation over, and that as the limitation cannot be carried into effect, he takes the whole estate in absolute fee-simple. There is no doubt of the rule that where there is an absolute power of dispostion given by the will to the first taker, the limitation over upon his dying without children, etc., is void as being inconsistent with the absolute estate. The power of disposal vests the whole estate in the first taker. 4 Kent Comm. 264. But we think the orator's contention is not supported by the language of the will. The construction contended for would defeat the intention of the testatrix. The will, in the event of the decease of the testatrix before her son attained the age of twenty-one years, leaves the care and management of her whole estate to the executor during the son's minority, and gives the executor power during that time to change any of her property into money or other property for the benefit of the son, if both deem it best to do so. When the son reaches the age of majority, or at her decease, if thereafter, he is to have the control and management of her property, which she "gives to him and heirs absolutely, provided he has children, or their descendants, who can inherit said property, or the avails of the same, from him at the time of his decease."

No clause of the will gives the property to the son except upon the express proviso and limitation therein stated. It gives him the fee conditionally. In the event of his decease, without issue living, his interest in the estate is defeated, and the whole goes over to the nephew or his issue. The estate does not vest absolutely in the son, unless he leaves issue at his decease who can inherit it from him. The "control and management" of the property, which the will gives him, manifestly does not include power of disposal. It gives him the use, possession, superintendence and direction of the property, and the power of exercising a general restraint over the same until the happening of the event that will determine who takes the property in fee-simple absolute. The language of the will shows that the testatrix did not intend that her property should vest absolutely in her son on his attaining the age of majority, with power of disposal. In direct and clear language, she makes the estate given to him a conditional one, and contingent during his life, subject to be defeated by his death without children or their descendants surviving him.

The will does not authorize or contemplate any change in her property after the son attains the age of majority. In the devise over the language is: "I will and direct that all my said property, or the avails of the same, if changed into other property or money, go

66

to and become the property of my nephew," etc. The phrase, or the avails of the same," in the devise to the son, and the phrase, "or the avails of the same, if changed into other property or money," in the limitation over, when read in connection with the words "my property" and "all my said property," and construed with other parts of the will, we think, do not indicate or imply a power of disposal in the son. They clearly have reference to changes made in her property by the executor under the authority given him by the will, which she intended should be subject to the devise over, and treated the same as property left by her. No express authority to dispose of her property is given to the orator, and none is fairly implied from the language of the will. The limitation over is not of such estate as the son, as first taker, shall have, as in Ide v. Ide, 5 Mass. 500; nor of such property as the son or first taker shall die possessed of, as in AttorneyGeneral v. Hall, Fitzg. 314, and in Jackson v. Bull, 10 Johns. 19, which word were held to imply an absolute power of alienation, and consequently an absolute ownership, destructive of the limitation; but the limitation here is of "all my said property, or the avails of the same, if changed into other property." The testatrix evidently intended that her son should succeed to the inheritance, if he had issue at his decease to take it from him; otherwise that the nephew or his issue should succeed to it, so that the estate should descend in the line of her blood, rather than in the line of her husband,

This view of the testatrix's meaning or intention, derived from the provisions of the whole will, is strengthened from the situation of the testatrix in respect to her son and sister's descendants. The son was her only child and heir, and would have inherited her whole estate absolutely if she had left no will; and it is not probable that she would have attempted by will to limit and qualify his interest in her estate, and give it over to her sister's descendants, on the happening of the specified contingency, if she had intended that the whole should vest in him absolutely on her decease. The general intent and controlling idea of the will is to vest the estate in the son only upon the condition and limitations expressly stated therein. To read it otherwise would be reading it contrary to its primary signification, and defeat, rather than effectuate, the intention of the testatrix.

neous.

The defendant insists that the orator takes under the will simply a life estate, with a vested remainder in the defendant and his children, subject to be defeated on the orator leaving children or their descendants at his death. We think this contention is erroBy the terms of the will, if the son shall leave no children or their descendants who can inherit from him, at his decease, then the defendant or his descendants will take the estate, given in the first instance to the son, from the testatrix under the will, not as a remainder, but in substitution for the preceding estate. If the son leaves children or their descendants, they will take the estate given to him, not as a remainder under the will, but by descent from him, out of the fee devised to him, which has not been defeated by the prescribed event. The language of the primary devise does not in terms limit the estate to a life-estate in the son, but it in terms gives to him the fee on the specified condition, on the occurrence of which the fee is to cease and go over, and vest in the devises over, if there then be any to take, and if there be none, then the devise over will become inoperative, and the conditional fee will become absolute in the son. 2 Jarm. Wills, 489; 2 Redf. Wills, 647; Drummond v. Drummond, 26 N. J. Eq. 234; Jackson v. Staats, 11 Johns. 337. Nor is the testatrix's language consistent with an estate

of inheritance descendible to an indefinite failure of issue, which would constitute an estate in fee-tail which under our statute would be a life-estate in the first taker, with remainder in fee-simple to the person to whom the estate tail on his death would first pass, for the limitation is not upon an indefinite failure of issue, but is expressly confined to a failure of issue at the time of the death of the first taker. The limitation cannot operate as a limitation of remainder after a life-estate, for it is not an estate immediately expectant on the natural determination of a particular estate of freehold limited in the will. The limitation is a devise over to the defendant or his children and their descendants in derogation of, or in substitution for a preceding estate in fee-simple in the son, the fee-simple given to the son being subject to be defeated in favor of the devisees over, on the simple condition of his having no issue at its decease to whom it can descend. It is a strict executory devise. 2 Jarm. Wills, 485; 2 Redf. Wills, 645. This construction of the will will carry out the intention of the testatrix. The condition of the devise over is valid, and within the rule as to perpetuities, for the event under which the fee passes away from the collateral heirs of the son must happen, if at all, at the decease of the first devisee.

The rule is well settled that where the devise over depends upon a definite failure of issue at the decease of the first devisee, an estate in fee-simple with an executory devise is created.

The doctrine is very clearly explained by Kirkpatrick, C. J., in Den v. Taylor, 5 N. J. L. 413, where the testator devised all his lands to his nephew, Stephen Shepherd, his heirs and assigns, forever, with the limitation in "case he should die before he arrives to lawful age, or have lawful issue, then and in that case over" to his nephew, John Sheppard, and his nieces, Hannah and Louisa Sheppard. The court held that the devise gave Stephen an estate in fee, with a limitation to Johu, Hannah and Louisa, by way of executory devise, and not an estate in fee-tail, with a remainder over.

In Den v. Snitcher, 14 N. J. L. 53, the words of the limitation following the gift to the testator's son of the plantation were: "If he shall die without issue, then at his decease the plantation shall be divided;" the one-half part being given over in trust for the benefit of the monthly meeting of Friends. The court held that an executory devise, because the limitation over was on a definite failure of issue, the devise over taking effect at the decease of the first devisee.

In Den v. Allaire, 20 N. J. L. 6, it was held that where the limitation over is to take effect upon a definite failure of issue, the previous estate is a fee simple subject to be defeated upon the happening of the event specified in the limitation.

In Hatfield v. Sneden, 54 N. Y. 280, where the testatrix devised and gave her whole estate to her daughter Elizabeth and her heirs and assigns forever, providing her son, who was supposed to be lost, did not return, but if he should return, then the caughter and son to share the same equally, and providing further that if the son did not return. and the daughter should have no children living at her decease, her whole estate should go to Jacob Hatfield and his heirs and assigns forever, it was held that the daughter took the estate in fee, limited by the executory devise over to Hatfield, which would defeat the daughter's fee on To the same efthe happening of the specified event. fect are Richardson v. Noyes, 2 Mass. 56; Moffat v. Strong, 10 Johns. 12; Den v. Schenck, 8 N. J. L. 29; Seddel v. Wills, 20 id. 223; Pells v. Brown, Cro. Jac. 590; Roe v. Jeffery, 7 Term R. 589; Popham v. Banfield, 1 Salk. 236; 4 Kent Com. 268 et seq.

The essential quality of an executory devise is that

it cannot be affected by the owner of the precedent estate. 2 Jarm. Wills, 495. It is well settled that a valid executory deed of real or personal estate cannot be defeated at the will or pleasure of the first taker. It cannot be barred by any method of alienation. Pells v. Brown, Cro. Jac. 590; Wankford v. Wankford, 1 Salk. 299; Moffat v. Strong, 10 Johus. 12; Jackson v. Bull, id. 19.

The first taker has nothing more than the use of the property, and any conveyance of the real property by him would be inoperative and void as against the devisee over, if the contingency happens which will vest the fee in him. If the first taker could legally exercise acts of ownership over the property it would be useless for the law to recognize and guard such devises. Such a devise and the power of disposal are repugnant, and cannot both exist under the same devise.

Where the right to alienate the fee is not given to the first taker by the instrument creating the estate, the Court of Chancery cannot by its decree authorize a conveyance of the estate by him, which will give good title thereto in fee to the purchaser, without the consent of all the devisees over in whom the title may ultimately vest absolutely. While the instrument stands as the foundation of the estate, it is controlling upon the court. Chancery may perhaps, in a case calling for such intervention, require the first taker of property limited by an executory devise to give security before taking the property from the executor, and may restrain a contemplated sale of it; but it will not intervene to authorize a sale without the full consent of all persons who may have a contingent interest therein. As in every executory devise, the whole estate passes out of the devisor in the first instance (2 Washb. Real Prop. 344, 345; 2 Pow. Dev. 241), if the persons were all living who might take under the executory devise, and capable of contracting a conveyance of the estate joined in by the first taker, and all the possible devisees over would give a good title in fee to the purchaser. So on a bill brought for that purpose, in which all the possible devisees over are made parties, where the consent of all such possible devisees over to such a decree is shown by the pleadings, the Court of Chancery may doubtless by its decree authorize the conveyance of the estate by the first taker upon the conditions of the consent, or other equitable conditions, which would give a good title to the purchaser against thə devisees over.

In the devise in question, on the happening of the contingency, the estate vests ultimately in the defendant, Josselyn, if he survives the orator; but if he does not, then in the defendants' children, and their descendants living at the orator's decease. It cannot now be determined in whom of the devisees over the estate will ultimately vest. The person who will take may be yet unborn. The defendant's children and their descendants are not parties to the proceeding, nor have they in any way consented to the conveyance of their contingent interest. Their contingent rights are in no way affected by the defendant's answer, consenting that the orator may be authorized to convey the fee on furnishing security to him to account for the avails. A conveyance of their contingent interest under such circumstances, under a decree of the court, would be inoperative, and give no title to the purchaser against them, should the fee ultimately vest in them, or either of them. We hold that the testatrix intended to provide for the defendant or his children and their descendants on the contingency of her son dying without children, or their descendants, who could inherit from him, and that the devise over to him or them, on the happening of the contingency, will take effect as an executory devise, if there be any of them to take; and that the or

ator takes under the will a qualified or conditional fee in the land in question subject to be defeated on his dying without children or their descendants, if any of the devisees over be then living to take the land, to whom the same would in that event pass in absolute fee-simple; and that waiting the happening of this contingency, the orator has no power to convey the land, and give good title in fee thereto.

The decree of the Court of Chancery, so far as it is in accordance with these views, is affirmed, and reversed so far as it holds that the orator has power under the will to convey the land in question, and give good title thereto; and authorizes him to convey the same on giving the defendant a bond, with ample surety to account for the avails thereof. As this bill was filed by the devisee against a devisee over for the purpose of determining a construction of the will, neither party is allowed costs.

The cause is remanded to the Court of Chancery, with a mandate to enter upon a decree in accordance with the views herein expressed.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

ACTION-ASSUMPSIT-MONEY HAD AND RECEIVED.In order to maintain assumpsit for money had and received, there need be no privity between the parties, nor any promise to pay, other than that arising and implied from the fact that the defendant has money in his hands belonging to the plaintiff that he has no right conscientiously to retain. It is said that assumpsit for money had and received will not lie, for that there is no privity between the State and the village, as the latter received from third persons, and has retained the money in good faith, under an adverse claim of right and ownership. But in order to maintain this action there need be no privity between the parties, nor any promise to pay, other than what arises and is implied from the fact that the defendant has money in his hands belonging to the plaintiff that he has no right conscientiously to retain. In such case the equitable principle on which the action is founded implies the promise. When the fact is found that the defendant has the plaintiff's money, if he can show neither legal nor equitable ground for keeping it, the law creates the privity and the promise. Brand v. Williams, 29 Minn. 238; Knapp v. Hobbs, 50 N. H. 476; Bank v. Smith, 5 Conn. 75; Mason v. Waite, 17 Mass. 560; Hall v. Marston, id. 574; Vaughan v. Matthews, 13 Q. B. 190, note; Walker v. Conant (Mich.), 31 N. W. Rep. 786. Lord Mansfield says in Moses v. Macferlan, 2 Burr. 1005, that "if the defendant be under an obligation from the ties of natural justice to refund, the law implies the debt, and gives this action, founded in the equity of the plaintiff's case, as if it were upon a contract," or, as the Roman law puts it, "quasi ex contractu." Though as to its merits this case has always been doubted, and rarely followed, Corey v. Gale, 13 Vt. 644; Phillips v. Hunter, 2 H. Bl. 414, it does not seem to have been criticised on this point; and in Cary v. Curtis, 3 How. 236, the Supreme Court of the United States adopts its language as one of the principles on which the action for money had and received is maintainable. Howard v. Wood, 2 Show. 24; Freem. 473, 478, was indebitatus assumpsit for the fees and profits of the office of stewardships of a court-leet and court-baron, brought by a grantee of the reversion of the office for ninetynine years, against a stranger who took the fees and profits thereof to himself. It was objected that the action would lie only when there is a quasi contract or an agreement between the parties; as when another pays money to J. S. to my use, then J. S. agrees by