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that the scheme was inconsistent with law, and contrary to the public policy of the State: and if it did not render the whole paper void as a will, it did so at least as to the items or portions in favor of Amanda and her children, because of its tendency to promote illegal and immoral intercourse between Amanda and her alleged paramour, the said Eubanks, such intercourse being destructive and subversive of the welfare and interests of society.

The items of the will bearing upon these questions are the following: Item 4. "I give, bequeath and devise to Julian H. Dickson and Charles G. Dickson, minor children of Amanda A. Dickson, and the natural sons of my deceased friend, Charles H. Eubanks, and to the survivor of them, in case either should die leaving no child or children, or representatives or representors of a deceased child or children, the two tracts of land in Hancock county * * * (describing), adjoining the land of Baxter, the Alexander place now occupied by said children and others, containing in all five hundred acres, more or less. I appoint Amanda A. Dickson, the mother of said children, the testamentary guardian of the property given to her children by this item of my will, and my executors are directed to turn over said property to her as such guardian, to be managed by her for them till they, or either of them, marry or come of age, at which time, as the case may be, said property may be divided, share and share alike. If both of said children should die before marriage or attaining lawful age, leaving no child or children, or the representative of a deceased child surviving, then the property in this item shall go to Amanda A. Dickson, their mother." Item 7. "I give, bequeath and devise all the rest and residue of my estate, not expressly disposed of by this will otherwise, as well all I now own, as all I may hereafter accumulate up to the time of my decease, including lands, live-stock, farming implements, crops on hand and crops growing, railroad stock, bonds, notes, accounts, and every thing else of value I may own at my death, to Amanda A. Dickson, of Hancock county, now living with her mother near my plantation, for and during her uatural life, free clear and exempt from the marital rights, power, control or custody of any husband she may have, with full power to her, the said Amanda A. Dickson, without the aid or the interposition of any court, to sell said property, and convey the same, and to reinvest the proceeds of said sales in other property, or in good security, to be held by her for her life as aforesaid. I charge the property bequeathed by this item of my will with the support and education of the children of the said Amanda A. Dickson, as well those hereafter to be born as those now living; their support to be ample, but not extravagant; their education to be the best that can be procured for them with a proper regard for economy; all of which I leave to the sound judgment and discretion of the said Amanda A. Dickson, without any interference from any quarter. As either of the children of the said Amanda A. Dickson, born or to be born to her, come of age or marry, I direct her to set off to such child so marrying or coming of age a portion of said property, she to determine, in her unlimited discretion, what property and how much shall be set off, with only this instruction, that the amount must not be so great as to defeat or imperil my purpose to provide for her during life, and for her children, as well those to be born hereafter as those now in life. Upon the death of the said Amanda A. Dickson, I give, bequeath and devise what may remain of the property embraced in this item of my will to the children of the said Amanda A. Dickson and the representatives of any deceased child, share and share alike, such representatives tak

ing per stirpes, and not per capita." The ninth item named the propounders as his executors, directed them to prove his will in solemn form, and to turn over to said Amanda all the property given her for life, and requested them to see to it while they live

that Amanda A. Dickson and her children are protected in their person and their property, under the laws, so far as they may be able to do so;" and gave each of the executors $2,500 in lieu of commissions.

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1. We shall consider, first, whether this will, in the various items mentioned above, and according to its scheme, and the proof had upon that subject, can be deemed contrary to public policy and void, and whether that question was clearly and properly submitted to the jury under the charge of the court and the testimony in the case. To do so intelligently, it will be necessary to state accurately the several charges of the court upon that subject, to which the caveators, excepted, and these will be found in the eighteenth, twenty-second, twenty-fourth, twenty-fifth and twenty-eighth grounds of the motion for a new trial, which are as follows: "(18) The court erred in charging the jury, at request of counsel for the propounders, as follows: There is no public policy in Georgia which prevents colored persons from taking property under a will,' without more, and without coupling to that the consideration of illicit intercourse, which may have produced said will." (22) At request of counsel for caveators the court charged the jury, that "If Amanda was the bastard child of David Dickson, begotten in this State, of a negro slave, prior to the late emancipation, he was under no obligation to support or provide for such child prior to such emancipation, except as a slave, if his slave, but then only while she was his slave; and was further requested in writing to charge: No obligation was upon David Dickson, if he so begot said slave, to support or provide for her after emancipation, or if such obligation existed, it ceased upon her becoming twenty-one years old,' and the court so charged, leaving out the words, or if any such obligation existed, it ceased upon,' and inserting 'and' after emancipation, and then refused to charge, as requested in writing: 'If this will was made after such majority, and Amanda was such bastard of this testator, the parts giving this property to her are void, because contrary to public policy.' The refusal of this request was error." "(24) The court erred, in refusing to charge, as requested in writing by the counsel for the caveators: If the jury believe from the evidence that this will sought to be propounded is contrary to the policy of the State of Georgia, then the jury would be authorized to find against the will.'" (25) The court erred in refusing to charge as follows: 'Under the Constitution and laws of the State of Georgia, marriages between white persons and negroes are forbidden, and the public policy of the State is against the mingling of the blood of these races, and if you believe that this will is against said policy, it is absolutely void,' though requested in writing by counsel for the caveators." "(28) The court erred in concluding his charge as follows: Every man in this State has a right to will his property to whom he pleases. There is no policy of the State which would make it unlawful or contrary to such policy for a man to will his property to a colored person, to any bastard, or to his own bastard, and such considerations as these would not alone authorize a will to be set aside, but you may consider all the facts, relationships and circumstances in evidence in deciding the questions made before you, which I have already stated and explained to you.' It was error in the conclusion thus to group and state the facts touching the case; thus to use the words set aside in the statement of the absence of a policy as to a testator's bastard, without re

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gard to whether he owed any legal obligation to such bastard, and because it did not sufficiently emphasize that matter of illegal cohabitation."

policy, and consequently void; and this conclusion is drawn from the prohibition of marriage between these races, as found in our Constitution and laws. Illicit It will be remarked that this will makes no provis- intercourse between persous of the same as well as ion for Julia, who it is alleged, was the concubine of different races is made penal by our Code, as also inthe testator; that there was no pretense of marriage tercourse between persons standing in near relations between Eubanks and Amanda, and that there is no of consanguinity or affinity to each other, whether that direct evidence going to establish the fact that the in- intercourse took place in consequence of prohibited tercourse between Amanda and Eubanks took place marriage or otherwise. It is well settled that a white and was carried on in consequence of any previous man may be guilty of fornication or adultery with a agreement or promise on the testator's part to make colored woman, and vice versa; and that a white or provision for Amanda and the children born in con- colored man, if a child is begotten in consequence of sequence of that intercourse. The will was made after such illicit intercourse, may be held liable for basthat intercourse had ceased, and after the death of tardy. Allen v. Harris, 40 Ga. 220. Indeed there is Eubanks. It was not seriously insisted that past co- no difference in this respect between the rights and habitation would render a gift by the party holding liabilities of the different races. The fourteenth such a relation to a woman, void or illegal, and had amendment of the Constitution of the United States it been so contended, the argument could have rested provides in express terms that "all persons born or upon no legal principle whatever. Indeed from a very naturalized in the United States, and subject to the early period the law has been well settled to the con- jurisdiction thereof, are citizens of the United States trary. Vide Beall v. Beall, 8 Ga. 224; Hargroves v. and of the State wherein they reside. No State shall Freeman, 12 id. 342; Davis v. Moody, 15 id. 175. A make or enforce any law which shall abridge the contract to make compensation for the injury done in privileges or immunities of citizens of the United consequence of past illegal cohabitation, which con- States, nor shall any State deprive any person of life, tained no stipulation for future intercourse, has been liberty or property, without due process of law, nor held to be valid; and even where such a contract had deny to any person within its jurisdiction the equal been fully executed, and the intercourse was kept up protection of the laws." The Supreme Court of the afterward, yet if it did not appear that the subsequent United States has decided that this amendment made cohabitation was made a stipulation in the contract, all colored persons born in the United States, and it has been maintained; where there was no evidence subject to its jurisdiction, citizens of the United of any promise or understanding, other than that in- States and of the States in which they reside. Slaughferred from the fact of future illicit intercourse be- ter-House cases, 16 Wall. 90, 95, 97; Bradwell v. State, tween the parties, this did not affect the validity of id. 130; Murdock v. Memphis, 20 id. 615; Walker v. the transaction. Thus where a bond had been given Sauvinet, 92 U. S. 90; Munroe v. Phillips, 64 Ga. 32. in consideration of past cohabitation, without any ex- Under the Constitution of Georgia (section 5017 of the press stipulation to that effect, or without evidence Code), “all citizens of the United States, resident in from which it could be shown that the future cohabi- this State, are hereby declared citizens of this State;" tation of the parties was one of its conditions, and it is made the duty of the General Assembly to although in fact they subsequently so cohabited, it enact such laws as will protect them in the full enwas held that the bond was nevertheless valid, and joyment of the rights, privileges and immunities due upon it an action could be maintained. Chit. Cont. to such citizenship. And to this effect is section 44 979; Trovinger v. McBurney, 5 Cow. 253; Gray v. of the Code. All distinctions as to the rights pertainMatthias, 5 Ves. 286; Hull v. Palmer, 3 Hare, 532;ing to citizenship between the two races are abolished Brown v. Kinsey, 81 N. C. 245; Greenh. Pub. Pol. 204-❘ by this legislation and by these constitutional provis207, both inclusive, and other citations in the notes thereto; Gay v. Parpart, 106 U. S. 679. "The test," says Dillard, J., in delivering the opinion in Brown v. Kinsey, "always is, does it appear by the contract itself, or was there any understanding of the parties, though not expressed, that the intercourse was to continue?"

Neither at the testator's death nor when the will was executed could a continuance of the relations between Eubanks and Amanda have been contemplated, for as before remarked, Eubanks was then dead. There is absolutely nothing in the case to show that the testator, as contended by the caveators, had knowledge of any illicit intercourse between Worthen, one of his executors, and Amanda subsequent to Eubank's death. The circumstances in proof warrant no such inference, and nothing beyond vague suspicion or mere conjecture could impute to him knowledge of the fact, or of a purpose on his part, to make provision with a view to the creation of such a relation between these last named parties. One thing is certain, that there was no offspring from the intercourse during the life of the testator, nor is there a single fact in proof to charge him with knowledge of it, or to show that he in any way encouraged or promoted it. His will certainly made no provision for the carrying on of such intercourse, or for the maintenance and support of any offspring that might result therefrom. The principal complaint here is that any thing which has a tendency to induce intercourse between persons of the white and negro races is contrary to public

ions. As to their civil rights they stand upon the same footing.

It follows therefore that whatever rights and privileges belong to a white concubine, or to a bastard white woman and her children, under the laws of Georgia, belong also to a colored woman and her children, and that the rights of each race are controlled and governed by the same enactments or principles of law. Among the rights of citizens of this State, enumerated in section 1654 of the Code, are the right to the acquisition and enjoyment of private property, and the disposition thereof, the right to vote, hold office, etc. It is unquestionably true that the testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the State. Code, § 2399. And this accords with the general law upon this subject. Most persous in modern times, by that law, are deemed capable of taking under wills, and the exceptions as to those who are incapable of taking are carefully enumerated, and rests generally upon grounds of public policy. Upon these grounds alien enemies are excluded from benefits under wills, and so are others whose participation in such benefits could in any sense of the word be called immoral; if a will makes a devise or bequest to further or carry into effect some illegal purpose which the law regards as subversive of sound policy and good morals, such devise or bequest will be held void, and the executor would not be justified in paying it.

The conditions of a testamentary gift tending to

separation or divorce between husband and wife would be treated as void, and to the same general principles of good morals and sound policy may be referred various miscellaneous restraints upon testamentary disposition which local law sees fit to enforce. Thus under the Louisiana Code, a will made in favor of the testator's concubine is treated as null and void. Gibson v. Dooley, 32 La. Ann. 959. Doubtless the local conception of public policy on such points is liable, in different jurisdictions and at different times and different epochs, to great variations. Decisions must greatly vary in consequence. Schouler Wills, §§ 22, 23. There is nothing in the law of Georgia that we have seen inhibiting compensation for past illegal cohabitation being made by a white man to a white woman, and under the law as it now stands there can be nothing to prevent its being made by such white man to his colored paramour. No arrangement for future cohabitation with a black or white woman would be valid, in favor of the woman or any party deriving a benefit from it. There is nothing in our law prohibiting a putative father from making provision for his illegitimate child or for the illegitimate offspring of such child. And even conviction of treason or felony or any lower grade of crime works no corruption of blood or forfeiture of estate. Bill of Rights, § 2, par. 3; Code, § 5020. So that a felon or his offspring may take testamentary benefits under the law of this country. No one would contend for a single moment that a contract, agreement or understanding, founded upon a consideration, in whole or in part, for the commencement or continuance of meretricious intercourse between the sexes, would not be directly contrary to law or public policy and the best interests of society. What is public policy? And where must we look to find it? And in ascertaining and applying it to the transactions of life, by what rules and precautions are the courts to be guided? On this latter topic, it is manifest from many decisions that judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy, and prejudice to the public interest must clearly appear before a court would be warranted in pronouncing the transaction void on this account.

In Richmond v. Railroad Co., 26 Iowa, 190, 202, it is said that " the power of courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and like the power to declare a statute unconstitutional, | should be exercised only in cases free from doubt." After laying down in terms somewhat different the same general rule, it was said by Howe, J., of the Supreme Court of Wisconsin, in pronouncing the judgment of the court in Kellogg v. Larkin, 56 Am. Dec. 164, 168: "He is the safest magistrate who is more watchful over the rights of the individual than over the convenience of the public; as that is the best government which guards more vigilantly the freedom of the subject than the rights of the State." So in Swann v. Swann, recently determined in the United States Circuit Court for the Eastern District of Arkansas (21 Fed. Rep. 299) it was said by Caldwell, J., delivering the opinion: "No court ought to refuse its aid to enforce a contract on doubtful or uncertain grounds. The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of the State, or injurious to the morals of its people. Vague surmises and flippant assertions as to what is the public policy of the State, or what would be shocking to the moral sense of its people, are not to be indulged in."

In the leading case of Richardson v. Mellish, 2 Bing. 229 (9 E. C. L. 557), the observance of the rule as thus

limited is strongly upheld and rigidly enforced by the whole court. Each of the justices presiding in that case delivered separate opinions, though they all concurred in the result. Best, C. J., says: "We have heard much of this being a contravention of public policy, and that on that ground it cannot be supported. I am not much disposed to yield to arguments of public policy; I think the courts of Westminster Hall (speaking with deference, as an humble individual like myself ought to speak, of the judgments of those who have gone before me) have gone much further than they were warranted in going in questions of policy; they have taken on themselves sometimes to decide doubtful questions of policy, and they are always in danger of so doing, because courts of law look only at the particular case, and have not the means of bringing before them all those considerations which ought to enter into the judgments of those who decide on questions of policy. I therefore say, it is not a doubtful matter of policy that will decide this, or that will prevent the party from recovering; if once you bring it to that, the plaintiff is entitled to recover, and let that doubtful question of policy be settled by that high tribunal, namely, the Legislature, which has the means of bringing before it all the considerations that bear on the question, and can settle it on its true and broad principles. I admit that if it can be clearly put upon the contravention of public policy, the plaintiff cannot succeed, but it must be unquestionable; there must be no doubt. Looking at all the facts of this case, I can see no unquestioned principle of policy that stands in the way of the plaintiff to prevent him recovering in this action." Criticising and explaining two cases (Card v. Hope, 2 Barn. & C. 661, and Blatchford v. Preston, 8 Term R. 89) which were relied on as opposed to this rule, the learned chief justice admits that in one of the cases there are expressions used by Chief Justice Abbott which seem to bear upon the present case. But," he says, "the expressions of every judge must be taken with reference to the case on which he decides, otherwise the law will get into extreme confusion. That is what we are to look at in all cases. The manner in which he is arguing is not the thing; it is the principle he is deciding. If ever I could have imagined it could have extended to such a case as this I would have protested against, though I could not have prevented, the decision. I would in my place have protested against it, for I should have seen the injustice and confusion to which such a doctrine would have been liable to be extended. I am quite satisfied that not one of the learned judges who decided that case ever conceived that its authority could be pressed to the extent to which it has been pressed in this case." His colleague, Park, J., refers to those cases for the principles they determine, and not for their facts. He concurs, as far as necessary in the respective judgment rendered in them, and says: "The judgment given by my Lord Chief Justice Abbott was very elaborate, but though I concur in the judgment in that case, I am by no means prepared to agree with every dictum in that judgment. I am quite satisfied that the reference to the general policy in that case by Lord Chief Justice Abbott was going further than was absolutely necessary, and I think there is nothing here to show illegality." Sir James Burrough, the other judge, said: "The next point is that it is illegal. I am of the opinion that on the face of this count there is no illegality. If it be illegal, it must be illegal either on the ground that it is against public policy or against some particular law. I, for one, protest, as my lord has done, against arguing too strongly on public policy; it is a very unruly horse, and when you once get astride it, you never know

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where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail." Further on in his opinion he says: "As to the point of public policy a great deal has been said, many cases have been mentioned, and in Blatchford v. Preston a great number of general phrases is made use of by the learned judge. But you ought not to govern courts of justice by general expressions used in the administration of the law. They may have some weight, but they ought not to govern; you must look to what the point of decision was."

In Walsh v. Fussell, 6 Bing, 169 (19 E. C. L. 83), Lord Chief Justice Tindal, in pronouncing the judgment, said: "It is not contended that the covenant was illegal on the ground of the breach of any direct rule of law, or the direct violation of any statute, and we think to hold it void on the ground of its impolicy and inconvenience, we ought to be clearly satisfied that the performance of it would be necessarily attended with injury or inconvenience to the public." In order to ascertain whether the provisions of Girard's will-because they excluded ecclesiastics, missionaries and ministers of any sect from holding or exercising any station or duty in the college thereby founded, and limited the instruction to be given to the students to pure morality and general benevolence and the love of truth, sobriety and industry, thus excluding by implication all instruction in the Christian religion-were in contravention of the public policy of the State, the Supreme Court of the United States held that they were not at liberty to travel out of the record to ascertain what were the private religious opinions of the testator, nor to consider whether the scheme of education by him prescribed was such as they themselves should approve, or 18 was best adapted to accomplish the great aims and ends of education; nor could they look at the general consideration of the supposed interest and policy of the State of Pennsylvania on the subject, beyond what its Constitution and laws and judicial decisions made known to them. Consequently they held that the question as to what is the public policy of the State, and what is contrary to it, if inquired into beyond these limits, would be found to be one of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of the judicial duty and functions, and upon which men may and will "complexionally differ." They therefore disclaim any right to enter upon such examinations beyond what the State Constitution, laws and decisions necessarily brought before them. Vidal v. Girard's Ex'rs, 2 How. 127, 197 et seq. Such was the view taken by Starnes, J., and Benning, J., in Adams v. Bass, 18 Ga. 144 et seq., and 154 et seq., as to what constitutes public policy, and the sources from which the rules on that subject are to be derived.

We cannot think that the judge erred in refusing to charge the jury, that if they believed from the evidence that the will sought to be propounded was contrary to the policy of the State of Georgia, then they would be authorized to find against it. As to what constitutes public policy, and as to what contravenes it, is not a question of fact for the jury, but is a question of law to be determined by the court. Any other rule than this would lead to confusion and injustice, and instead of settling, would go far to unsettle, the law upon this subject.

In Pierce v. Randolph, 12 Tex. 290, Chief Justice Hemphill, as the organ of the court, says: 'But it seems that a new rule has been discovered by which to test the validity of contracts, and that is, the belief of the jury with regard to their tendency to immorality and breaches of the peace; and this even where such contracts have been declared by the courts of last

resort to be valid in law, and to have all the force and efficacy which the law can impart to any contract. No doctrine more subversive of law and of private and public rights could have been devised. In fact it sets them afloat upon public sentiment, to fluctuate and rise and fall with the ebb and flow of popular opinion, and when brought to trial, to succeed or fail, not according to the established rules of law, but upon the belief, the private opinions, or in other words, the whims and caprices of the juries before whom they were presented. The most sacred rights, those most cherished by the law, might be frustrated and defeated without any regard to law; a justice of the peace with his jury might deem them against morals, good order or public policy.' And after giving some striking instances of the dangerous tendency of such a practice, he continues: "It is the duty of both judges and juries to decide on rights according to the laws of the land, and not on their belief as to what ought to be law. Their office is not legislative, it is judicial; it is to administer the law as they find it, and not to exalt their own belief or notions above the law, and follow them as a higher code by which the rights of the community are to be regulated or controlled."

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Tried by these rules, we cannot say that Dickson's will is unquestionably and beyond a doubt against public policy. We know of no constitutional provis. ion or statute, or any decision of our courts, nor are we aware of any principle of the common law, which holds it to be immoral or wrong for the putative father to make provision for his illegitimate child, whether that child be white or colored; or for the illegitimate offspring of such child, whatever the complexion of such offspring may be; or for any one who has lived in violation of the public law, and thereby become a criminal, either to a greater or less extent, unless that provision is the result of a previous understanding that led to the commission of the offense, and induced a breach of the law and sound public policy of the State. We have seen that such an understanding is not to be lightly inferred from facts and circumstances of doubtful import and meaning, or which may admit of different constructions—one consistent with and the other opposed to unquestioned policy. The Legislature has not seen fit to declare that the tendency of such provisions would be promotive of immorality, and would induce the formation and continuance of such illicit cohabitation, and for that reason to prohibit them, as has been done by the provision cited from the Code of Louisiana. Whether such inhibition would be good or bad policy is not for us to determine. The question is one upon which there has existed, and still exists, a contrariety of opinion, as will be seen by what was said by Lumpkin, J., in the case of Beall v. Beall, cited above. And this being the case, its solution is entirely beyond the scope and functions of the judicial department of the government. If judges would avoid uncertainty and fluctuations in the administration of the law, and render it uniform and consistent, they should follow the admirable advice given by Lord Chancellor Bacon to a magistrate whom he was about to swear into office: "Look to your books for the law, and not to your brain." Above all, they should not give themselves up to the guidance and direction of their feelings and sentiments; for this would unquestionably lead to excessive irregularity, fluctuation and doubt. They would then realize that the fame which follows is better than that which goes before, and would avoid the supreme folly of mistaking the plaudits and shouts of the multitude of their cotemporaries for the trumpet of fame. Loyalty to the law, and rigid adherence to the rules it prescribes, is to the enlightened magis

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WILLIAMS V. COLONIAL BANK; SAME V. LOND. CHART. BANK OF AUSTRALIA.

The executors of a deceased owner of shares in an American company desired to be entered on the New York registry in respect of the shares, but had no definite idea of selling them. On the instructions of their broker they signed a form of transfer in blank which was indorsed upon the share certificates, and the certificates so indorsed were sent to the brokers to be forwarded to New York for registration. The brokers fraudulently deposited the certificates with the defendant bankers as security for advances. Upon the bankruptcy of the brokers, the fraud was discovered, and the question of the title to the certificates arose. It was in evidence that by American law the legal title to shares vested in the person entitled to be entered on the register as the legal owner; and that according to the usage of the monetary world, certificates of this character were equivalent to securities to bearer, and passed from hand to hand without registration. Held, that the bankers were entitled to a charge upon the shares to the amount secured by the deposit of the certiflcates, and that the executors were estopped from denying the authority of the brokers to deal with the shares as they thought desirable.

THE

HE first action was brought by Elizabeth Maria Williams, John Cady, and John Charles Williams, as the executors of the will of John Michael Williams, to recover 710 shares in the New York Central and Hudson River Railroad Company, belonging to the estate of the testator and deposited in fraud of the plaintiffs with the defendant bank.

The testator died in February, 1880, and his will was proved by the two first-named plaintiffs on the 25th March, 1880, power being given to Michael Williams and the plaintiff John Charles Williams to prove. John Charles Williams proved the will on the 19th October, 1882.

At the time of his death, J. M. Williams was entitled to 1210 shares in the New York Central Company, which were represented by 121 certificates of ten shares each, all registered in the testator's name in the books of the company. The following is a copy of one of such certificates, with its indorsement by the executors, as subsequently deposited with the defendant bank:

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the time be required by the transfer regulations of the company. This certificate is however to be of no effect or validity until countersigned by the transfer agent, and also by the registrar of transfers of the said company, in the city of New York.

In witness whereof the president and treasurer of the said company have hereunder subscribed their names at the city of Albany this 16th day of December, in the year one thousand eight hundred and seventy-three.

C. C. Clarke, Treasurer. W. H. Vanderbilt, President. Countersigned this 16 day of December, 1873 - Ten shares The Union Trust Company of New York, Register of Transfers, By A. H. Ogilvie, Secretary. Countersigned this 17th day of December, 1873, Duncan, Sherman & Co., Transfer Agents.

The indorsement was as follows: For value received do hereby sell, assign, and transfer to shares of the capital stock of the New York Central and Hudson River Railroad Company of one hundred dollars each, standing in name on the books of the company, and represented by the within certificate. And do hereby irrevocably constitute and appoint attorney to execute a surrender and cancellation of the within certificate, and also to do all things requisite to transfer the said stock on the books of the said company, in such form and manner as may be necessary, or be required, by the regulations of the said company in that behalf, with full power of substi tution in the premises.

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Athas. Pryor, jun., Accountant, Cornwall, Thos. H. Martin, Engineer, Swansea. Prior to January, 1880, all the shares of the company stood on the New York registry, but were largely dealt with on the London Stock Exchange, but from that date Messrs. J. S. Morgan became the representatives of the company in London.

In August, 1880, the plaintiffs were desirous of being registered as executors in respect of the testator's shares, so that they might receive the' dividends and sell if opportunity offered. Their agent, Mr. Pryor, accordingly communicated with their stock brokers, Messrs. P. W. Thomas & Co., and sent them the certificates with an extract of the probate of the testator's will.

On the 10th November, 1880, Mr. Pryor received a letter from Messrs. Thomas & Co., stating that the extract of the probate of the testator's will which had been forwarded to New York with the share certificates was insufficient, and stating various formalities which were required to perfect their title "after which the share certificates, which are also on their way back, must be signed by the executors, and then new certificates will be issued in their names."

In answer to another letter from Mr. Pryor, asking whether the executors could sell the shares without furnishing the required evidence, Messrs. Thomas & Co. wrote to say, that if Mr. Williams had indorsed the New York Central shares before his death, they would have been able to effect the sale of the shares without further trouble, but that the fact of his not having done so necessitated the proving to the company who his legal representatives were, so that someone who was empowered to do so might indorse the certificate. Accordingly the indorsed transfers on the share certificates were signed by the two first-named plaintiffs in blank, as appears above, and sent to Messrs.

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