statutes of 1848 and 1849, and 1860 and 1862: Bertles v. Nunan, 92 N. Y. 152; 44 Am. Rep. 361. It therefore still exists under our law.

We have seen, however, that a tenancy by the entirety is not a joint tenancy in form or substance. Upon what principle should the termination of a tenancy by the entirety resulting from an absolute divorce be changed into a joint tenancy, in the face of our statute relating to joint tenancies? The conveyance did not expressly declare that the tenancy was to be a joint tenancy, and therefore, when the original character of the tenancy by the entirety is changed, it cannot be transformed into that of a joint tenancy without a clear violation of our statute.

He

The counsel for the defendant urges that we are giving by this decision a retroactive effect to a decree of divorce in a case not warranted by the statute, and in violation of the wellsettled rule in this state as to the effect of such a decree. says that we change the effect of the deed of conveyance, and that the decree of divorce not only severs the unity of person from the time of its entry, but that we allow it to date back to the date of the conveyance, and to give an effect to such conveyance that it did not have at the time of its execution. We think not.

We do not at all question the contention of the defendant's counsel that a decree of divorce in this state only operates for the future, and has no retroactive effect, or any other effect than that given by the statute. But we hold that the character of the estate conveyed was such in its creation that it depended for its own continuance upon the continuance of the marital relation, and when that relation is severed, as well by absolute divorce as by death, the condition necessary to support the continuance of the original estate has ceased, and the character of the estate has for that reason changed. The estate does not revest in the grantor or his heirs, for no such condition can be found in the law or in the nature of the estate, and it must therefore remain in the grantees, but by an altered tenure. Their holding is now a holding of two separate persons, and, for the reasons already given, such holding should be by tenJancy in common, and of course without any survivorship.

I think the contention that the first wife is entitled to the whole of the estate as the survivor of her husband cannot be maintained. Although the question is new in this state, it has been somewhat debated in the courts of some of the other

states. In Harrer v. Wallner, 80 Ill. 197, and Lash v. Lash, 58 Ind. 526, and Ames v. Norman, 4 Sneed, 683, 70 Am. Dec. 269, similar views to those we have herein stated are set forth. A contrary decision has been made in Michigan, in Appeal of Lewis, 85 Mich. 340; 24 Am. St. Rep. 94. We have read the opinion in that case, but we feel that our own view is more in accord with legal principles, and we cannot therefore follow it.

Upon the defendant's appeal, the judgment ought to be affirmed.

Upon the appeal of the plaintiff, her counsel contends that there is a condition annexed to the estate by the entirety which is implied by law, and the condition is, that each of the grantees shall remain faithful to the obligations of the married state, and shall not, by his or her misconduct, cause a dissolution of the marriage relation upon which the estate depends. I find no warrant for implying any such condition in the character of the holding, and still less for the result which, as he claims, flows from a violation of such condition. Its violation (judicially determined) results, according to the plaintiff's argument, in the immediate vesting of the whole estate in the innocent party to the marriage, just the same as if the other party thereto were actually dead instead of divorced. None of the authorities treats the estate as dependent upon any such condition, and however proper it might be to enact by legislative authority a condition of that nature, this court has not that power.

It is unnecessary to add anything further to the views which have been expressed by the learned judges of the supreme court in this case, and we are of the opinion that the judgment appealed from should be affirmed, and as neither party appealing has succeeded here, the affirmance should be on both appeals, without costs.

Where

HUSBAND AND WIFE-TENANCY BY ENTIRETY - How Created. real estate is conveyed to husband and wife jointly they take as one person: Town of Corinth v. Emery, 63 Vt. 505; 25 Am. St. Rep. 780, and note; Hulett v. Inlow, 57 Ind. 412; 26 Am. Rep. 64, and note 65-68; Den v. Hardenburgh, 10 N. J. L. 42; 18 Am. Dec. 371, and extended note 377-389; Wilson v. Wil son, 43 Minn. 398.

HUSBAND AND WIFE-TENANCY BY ENTIRETY EFFECT OF DIVORCE ON. — The tenancy by entirety is not destroyed or affected by the divorce of the grantees: Appeal of Lewis, 85 Mich. 340; 24 Am. St. Rep. 94. This case is in direct conflict with Blackinton v. Blackinton, 141 Mass. 432; Enyeart ▼. Kepler, 118 Ind. 34; 10 Am. St. Rep. 94, and note.

STAPLES V. NOTT.

[128 NEW YORK, 403.]

CONFLICT OF LAWS-CONTRACT, where Deemed TO BE MADE. - When an agreement to give and accept a promissory note is made in the state where the payee resides, and it is then drawn up pursuant to the agree. ment and given to the maker for execution, who takes it to his home in another state, where he signs it and procures it to be indorsed and transmitted to the payee at the latter's place of residence, it must be deemed a contract of the state wherein the latter resides, though it is made pay. able in the state of the maker's residence, and if not usurious by the law of the state where the payee resides, cannot be attacked for usury in the state in which it is payable.

CONFLICT OF LAWS. — THOUGH AN INDORSEMENT of a note is made in one state, yet if the indorser transmits it to another state to be there received by the payee, and this is done pursuant to an agreement made in the latter state, the obligation of the indorser is to be determined by the law of the state in which the note was received by the payee,

M. M. Waters, for the appellant.

John C. McCartin, for the respondent.

GRAY, J. The promissory note in suit bears date at Washington, District of Columbia, April 5, 1889; was made payable at a bank in Watertown, New York, and carried interest at the rate of seven per cent per annum. The appellant was indorser upon it, and defends on the ground of usury. If the contract of the parties, which is evidenced by this note, was governed by the laws of this state, the defense should have prevailed; but if made under the laws of the District of Columbia, the judgment was right, and should be sustained.

The note was given in renewal of a balance due upon a prior note, made by and between the same parties, which bore date at Washington, District of Columbia, April 5, 1888, was payable one year after date at a bank in Washington, bore the same rate of interest, and was similarly indorsed. Some payments were made on account of the principal, but before its maturity, the maker requested of plaintiff, a resident of Washington, by letter, to renew for the balance remaining due. Failing to receive any reply, he went on to Washington, and there prevailed upon the plaintiff to agree to take a new note for his debt. This note was then drawn by the plaintiff and handed to the maker for execution, who took it back to his home in Syracuse, New York, where his and the appellant's signatures were affixed as maker and indorser respectively. It had been agreed with the plaintiff that upon this new note

being returned to him, he would send back the original note, and the appellant himself mailed the renewal note to the plaintiff in Washington.

These facts, which were not disputed, should make it perfectly obvious that there was here every essential to a valid contract under the laws of the plaintiff's domicile, and the only accompaniment lacking to a full local coloring was the foreign place named for payment. For the affixing of the signatures to the note by the maker and the indorser, however important as acts, was yet but a detail in the performance and execution of the contract which had been agreed upon with the plaintiff. But naming a New York bank as the place where the maker would provide for the payment of the note did not characterize the contract in one way or the other. That arrangement was one simply for the convenience of the maker. It could have no peculiar effect. The transactions which resulted in an agreement to extend the time for the payment of the debt and to accept a new note took place wholly in the District of Columbia, and what else was enacted in the matter elsewhere neither added to nor altered the agreement of the parties. Though the engagement of the indoser, in a sense, was independent of that of the maker, that proposition is one which does not affect the local character of the contract, but which simply concerns the question of the enforcement of the indorser's liability. Whatever the previous knowledge of the appellant as to the negotiations and the agreement for a renewal of the promise to pay between the maker of the old note and the plaintiff, the question is without importance. When he indorsed the note, which had been prepared and was brought to him, and sent it through the mail to the plaintiff, his engagement was with respect to a contract validly made according to the laws of the District of Columbia, and when the note was received by the plaintiff the transaction was then consummated in that place. In Lee v. Selleck, 33 N. Y. 615, it was said, with respect to an indorsement in Illinois of a note made in New York, that the fact of the indorser writing his name elsewhere was of no moment. Upon delivery by his agent to the plaintiffs in New York, it became operative as a mutual contract.

The agreement which was made in Washington for the giving of the promissory note in question was the forbearance of a debt already due, upon which the appellant was liable; and the renewal of his engagement as indorser upon the note, with

AM. ST. REP., VOL. XXVI. - 31

out any qualification of his contract of indorsement, was in fact an act in ratification and execution of the previous agreement. That agreement between the plaintiff and the maker in Washington took its concrete legal form in a note, prepared there by the plaintiff, with a rate of interest sanctioned by the laws of his domicile, adopted by the appellant by indorsement in blank, and made operative as a mutual contract by delivery to plaintiff in Washington through the mails.

For the court to hold, because the note was not actually signed and indorsed in the District of Columbia where the agreement it evidenced was made, or because it was made payable in another state, that the contract was void as contravening the usury laws of the place of signature and of pay. ment would be intolerable, and against decisions of this court: Wayne Co. Sav. Bank v. Low, 81 N. Y. 566; 37 Am. Rep. 533; Western T. & C. Co. v. Kilderhouse, 87 N. Y. 430; Sheldon v. Haxtun, 91 N. Y. 124.

I think the plaintiff was entitled to recover as upon a contract made under the government of the laws of the District of Columbia, and therefore valid and enforceable in any state. The judgment should be affirmed, with costs.

INTEREST-CONFLICT OF LAWs. The laws of the state where a negotia ble instrument is made will fix the rate of interest that it is to draw: Mc. Allister v. Smith, 17 Ill. 328; 65 Am. Dec. 651, and note; Dugan v. Lewis, 79 Tex. 246; 23 Am. St. Rep. 332, and note. A note executed in Georgia but payable in New York is governed as to interest by the laws of Georgia: New England etc. Co. v. McLaughlin, 87 Ga. 1. A note executed in Alabama but payable in Georgia is governed by the laws of Alabama: Hanover Nat. Bank v. Johnson, 90 Ala. 549.

ATTORNEYS

HURLBURT V. HURLBURT.

[128 NEW YORK, 420.]

- PRIVILEGED COMMUNICATIONS. IF TWO OR MORE PERSONS CONSULT AN ATTORNEY AT LAW for their mutual benefit and make statements in his presence, he may disclose such statements in any controversy between them or their personal representatives or successors in interest, but not in controversies between them or either of them and third persons.

EVIDENCE. - DECLARATIONS OF A TESTATOR OR INTESTATE binding on him or his estate may be given in evidence against his personal representative, in all cases where they would have been competent against himself had he been living and a party to the action.