theories and principles which we have referred to as most remarkable were first advanced. Miss Lanchester had formerly been regarded as a sincere, high-minded girl of little more than legal age, and had never attempted or threatened to violate any of the conventionalities of life; but, in proportion to the increasing interest which she took in socialistic problems, came, also, an added concern in the principle that man and woman might love each other, but in order to remain as individuals and as equals no marriage service of any kind should occur, Falling in love with a man, Miss Lanchester advanced her ideas and proceeded to carry them out, having in mind at all times a definite time when she should begin her relations with the man of her choice. Shortly before the time set by Miss Lanchester for the commencement of her relations with the man in question, her father and brothers, under the Lunacy Act, sued out a process to enable them to confine her in a lunatic asylum as an alleged insane person. After more or less legal controversy and wrangling Miss Lanchester was at last released from the asylum and started on the career which she herself had marked out. The case is extremely interesting from many standpoints. To the lawyer, at least, it illustrates the many deficiencies and errors which exist in the marriage laws, as well as calls attention to a case which may be followed by other women who may discover that the lack of uniformity between the laws of our different States and the absence of respect for the decrees of another court has made the relation and forms of marriage of very little value, at least in the eyes of many who enter wedded life and seek divorce with practically the same sense of obligation.

it appeared that in 1886, Iola, a city under the Constitution of Kentucky, rating as of the third class, granted to the Iola Gas & Coal Company, its successors and assigns, the right to lay gas pipes and mains in the streets and public grounds for the purpose of supplying the city and its inhabitants with gas. In the charter no rates were prescribed, except that the company should not charge the city more than one dollar per thousand cubic feet of gas for lighting the public buildings. It appears from the facts that on September 12, 1889, the company with the assent of the city, assigned all its rights and interests to one W. S. Pryor and another, their heirs and assigns, one of the conditions being that said assignees would furnish private families with gas at the price not exceeding $2.50 per stove per month and forty cents per month per burner for illuminating purposes; and for some years past, said assignees have been furnishing natural gas to the city and its inhabitants. On May 10, 1895, the city enacted an ordinance providing, among other things, that it should be unlawful for any person, firm or corporation furnishing gas in said city to charge anything in excess of the prices therein fixed, which were very much lower than those named in the assignment, and lower than those received from consumers. The Supreme Court held that such an ordinance is inoperative and void as to said Pryor and his partner, their heirs and assigns, in so far as the same purports to establish prices for gas furnished by them to private consumers. The theory of the decision to us appears to be sound and proper. The franchise originally only limited the company as to the price they should charge the city, and their assignees should properly only be limited in the same manner as predecessors, especially in view of the fact that the city consented to the assignment. We believe that it is dangerous for legislatures and municipal govern

ties unless the parties furnishing the materials or products have an exclusive monopoly of the business. In any State the excessive abuse of the powers granted to a corporation, firm or individual, will result in the commencement of the same kind of business by others and the natural laws will at once begin to operate. We fear that too often legislatures and other law

making bodies are induced by peculiar ideas to attempt legislation which is unfair to those who have risked money in some enterprise. In the Matter of Pryor the court said:

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"The only question arising upon the record is whether the city of Iola had authority to fix the rates to be charged for natural gas furnished to private consumers by Pryor & Paullin under the circumstances above stated. In this country municipal corporations (except the city of Washington) are the creatures of the States in which they are located. They derive their powers from the Constitution and the statutes. In Anderson v. City of Wellington (40 Kan., 176; 19 Pac., 719) this court has said: The power to pass a city ordinance must be vested in the governing body of the city by the Legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted; and must be essential to the declared purposes of the corporation; not simply convenient, but indispensable. * Any fair and reasonable doubt concerning the existence of the power is resolved by the courts against the corporation, and the power is denied." (See, also, 1 Dill. Mun. Corp., 4th ed., § 89.) The act providing for the organization and government of cities of the third class contains no express grant or power to fix or regulate the prices of gas, water or any other article of necessity or luxury. General authority is given to enact ordinances for the good government and welfare of the city (Gen. St. 1889, pars. 958, 991), and such cities may provide for and regulate the lighting of streets, and they have power to make contracts with any person. company or association to erect gas works, with the privilege of furnishing gas to light the streets, lanes and alleys of the city for any length of time not exceeding 21 years (Id., par. 984.) The respondent relies principally upon a section of the Corporation law of 1868 relating to gas and water corporations, and published as paragraph 1401, Gen. St., 1889, which reads as follows: 'Any gas or water corporation shall have full power to manufacture and sell and to furnish such quantities of gas or water as may be required by the city, town or village where located, for public or private buildings or for other purposes; and such corporations

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shall have power to lay pipes, mains and conductors for conducting gas or water through the streets, lanes, alleys and squares in such city, town or village, with the consent of the municipal authorities thereof and under such regulations as they may prescribe." Certainly there is no express power conferred upon the municipal authorities by this section to regulate the price of gas or water. Whether they might, as a condition of their consent, provide that gas or water should be furnished to the city or to its inhabitants at not exceeding certain prescribed rates, we need not now inquire. Consent was granted by Ordinance No. 268 to the Iola Gas & Coal Company, its successors and assigns, without annexing any condition as to rates, except that no more than one dollar per 1,000 cubic feet of gas should be charged for lighting the public buildings. In certain. cases the State may fix and regulate the prices of commodities and the compensation for services, but this is a sovereign power, which may not be delegated to cities or subordinate subdivisions of the State, except in express terms, or by necessary implication. No such power is expressly conferred upon cities of the third class, and we do not think the right can be implied from any express provision, unless possibly that in the grant of consent to any person or corporation to so use the streets and public grounds of the city a condition might be imposed as to the maximum rates to be charged. In Lewisville Natural Gas Co. v. State (135 Ind. 49; 34 N. E. 702), it was held that municipal corporations of Indiana have no power at common law to fix by ordinance the price at which natural gas shall be supplied to comsumers, and that the act of March 7, 1887, providing "that the boards of trustees of towns and the common council of cities * shall have power to provide by ordinance reasonable regulations for the safe supply, distribution and consumption of natural gas within the respective limits of such towns and cities," does not confer the power to regulate the price at which natural gas shall be furnished; overruling the case of City of Rushville v. Rushville Natural Gas Co. (132 Ind., 575; 28 N. E., 853). In the opinion the court says: "To secure the safe supply and use of natural gas is one thing, and to fix the 'price at which gas shall be sup

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or release of the principal of said debt or of any part thereof, or of the mortgage security therefor, shall be valid as against any subsequent debt, unless the fact of the payment or release is indorsed on said bond, save that full payment shall be sufficiently evidenced by the delivery of a satisfsction piece in proper form to discharge the record of said mortgage. This covenant shall be binding on and inure to the benefit of the parties hereto and their heirs, successors, representatives and assigns; and any assignee of the whole or any part of said debt, on taking such assignment, may rely upon the indorsements on said bond and upon the absence thereof.' This clause, while protecting a subsequent assignee, under the circumstances stated, against the previous release of the mortgage debt or of the mortgage security, seems to recognize the right of the company to release the debt or the security after making an assignment thereof, and thus limit the protection of the assignee to the unsecured obligation or liability of the company and its guarantor."

Substantially similar schemes have been adopted by real estate companies in other cities to enable investors to speedily obtain slices of a mortgage where they have not sufficient funds to take the whole loaf. But it would seem that, in any such form of investment, there must be so much discretionary power of control retained in the holder of the mortgage, and so little right of management and freedom of action in the different assignees of interests therein, that, under the surrogate's decision, this general field is not open to trustees.

We are not prepared to advocate statutory extension of the classes of trust investments sanctioned in New York. (See Smith v. Smith, 4 Johns. Ch. 281; King v. Talbot, 40 N. Y. 76; Mills v. Hoffman, 26 Hun, 594; Ormiston v. Olcott. 84 N. Y. 339; Judd v. Warner, 2 Den. 104; Laws of 1889, Ch. 65.) Nevertheless, the restriction to first mortgage loans and public securities makes it exceedingly difficult for trustees in this city to obtain advantageous investments for comparatively small funds.

The average lawyer is constantly called upon to draw wills of persons who have accumulated a respectable competency, which, when divided among a considerable family of children, will

give a comparatively small portion for each beneficiary. To tie up such shares in trust simply on general principles is a great mistake, which, unless there be some positive reason, should be advised against. An insignificant fixed annual income will not be as advantageous to a beneficiary as the absolute ownership of the principal, wherewith, for instance, to acquire the equity in a home of his own. there is the chance that the beneficiary may be improvident and lose the money; but, if the objects of a testator's bounty be fairly prudent persons, it would seem better in the long run to take such risk, than to certainly debar them from substantial benefit from their portions.

Of course,

Where, however, testator's are determined, either with or without special reasons, to create small trusts, the restriction of the field and the practical difficulty of investments should be brought to their minds, and it should be ascertained whether they wish to widen the field by special authority in the will.

The courts lean toward restricting a trustee to legal investments, and toward holding him responsible for loss if other investments are made, whenever the language of a will admits of doubt as to the scope of his power. In King v. Talbot. supra, it was held that committing the investment to the "discretion" of the trustee gives no additional authority as to the class of securities; that the discretion is controlled by the rule and must be exercised within its limits. Words authorizing investment "in such manner, and upon such securities as to (the trustee) shall seem advisable," do not enlarge the usual power. Matter of Keteltas, 1 Connolly 468. The language, "in such suitable manner as may be for the best interests of my estate to be determined by my said executors," does not authorize an investment on personal security. (Matter of Cant, 5 Dem. 269; see, also, Adair v. Brimmer, 74 N. Y. 539; Matter of Petrie, 5 Dem. 352; Pray's Appeal, 34 Pa. St. R. 100.)

But when the language used is specific and unambiguous, it would seem safe to act upon its authority. In Matter of Wolfe (1 Connoly, 102), the will provided that the trustees might continue to hold the testator's estate in the form in which it was invested at his death, and they were "in view of the express language,"

exonerated from liability for losses incurred by reason of stock bought by testator selling for less than its inventoried value. In Clark v. Ry. Co., 58 How. Pr. 21, the court said: | "When a deed of trust directs, in plain terms, in what particular securities funds coming into the hands of trustees shall be invested, and how, until so invested, they shall be held, the court cannot by its judgment, defeat the intentions of the creator of the trust and the beneficiaries thereunder by directing other investments." To the same effect is Burrill v. Shiel, 2 Barb. 457, where a testator directed an investment to be made in England, and the court declared it had no power to divert the investment from that country.

In order to render it safe for trustees to make investments other than those expressly sanctioned by law, authority should be given by mentioning other securities, or at least the general nature of permissible securities.

Speaking of uniformity in State laws a recent case decided by the Supreme Court of Alabama demonstrates the absolute necessity for some such scheme, and that it should be done at the

earliest possible moment. In the case of McCreery v. Davis. it appeared that a citizen of South Carolina had married in New York a citizen of that State and immediately thereafter the parties continued to reside in South Carolina, until the wife left the husband and went to live in Illinois. In that State the wife obtained a divorce entirely in accordance with the laws of Illinois, but without personal service or the appearance of the husband, and on a ground not recognized in either New York

or South Carolina as a cause for divorce. In South Carolina in the case under discussion, it was subsequently held that the Illinois judgment was void and that article 4, section 1, of the United States Constitution providing that full faith and credit shall be given in each State to the judicial proceedings of every other State, and the act of Congress providing that records and proceedings thereof, properly authenticated, shall have full faith and credit given them in

every court of the United States, as they have in said State from whence they came, does not prevent an inquiry into the jurisdiction of the court which rendered the judgment. The position of Mrs. McCreery, owing to this de

cision, is somewhat peculiar. It is apparent that under the laws of Illinois she is single, and may again marry. Under the laws of South Carolina and under the laws of New York she is still Mrs. McCreery. This may at first seem to be a most ultra case showing the unfortunate result of lack of uniformity in State laws, but many similar decisions may easily be found which illustrate the necessity for some immediate and radical action.

DECREE OF SURROGATE'S COURT ADMITTING WILL TO PROBATE BINDING ONLY AS TO PERSONALTY.

ACTION FOR PARTITION OF REAL ESTATE MAINTAINABLE BY HEIR IN WHICH QUESTION OF VALIDITY OF WILL MAY BE LITIGATED DE NOVO.

Supreme Court - General Term, First Department. October, 1895. Present: Hons. Charles H. Van Brunt, P.J.; David L. Follett and Alton B. Parker, JJ.

Michael Bowen, respondent, v. Michael Sweeney and Catharine Gallagher, appellants, impleaded with others.

Appeal from an order denying a motion to set aside the verdict, from the interlocutory judgment entered on said verdict and on a decision of the Special Term, and from the final judgment entered on the report of a referee to sell in an action of partition.

August 27, 1885, Mary T. Hatton died seized in fee simple of a piece of land situate at the northwest corner of First avenue and Thirteenth street, which is 43 feet and 3 inches wide on the avenue, and 80 feet long on the street. She left a last will, executed April 17, 1880, by which she devised and bequeathed all of her estate to Michael Sweeney and Catharine Gallagher, to be divided equally between them. The will was admitted to probate October 18, 1886, by the Surrogate's Court of the city and county of New York (3 N. Y. St. Rep. 213). August 20, 1887, the decree of the Surrogate's Court was reversed by the General Term of the Supreme Court (10 N. Y. St. Rep. 19), which ordered the following issues to be tried before a jury in the Court of Common Pleas :

First. Whether the decedent ever saw the paper

propounded for probate as her last will and testa

ment until it was presented to her for execution.

Second. Whether the paper propounded for probate, as the last will and testament of Mary Teresa Hatten, was read by her or anyone aloud in her hearing previous to the signing thereof.

Third. Whether the decedent at the time of sign