and is therefore commonly employed. Uses and trusts were further subdivided according to their indirect object into public or private; and the former again into charitable or eleemosynary, pious and superstitious.

The only positive restriction, prior to the Revised Statutes, against the creation of private trusts in lands was, that their object and purpose should not be unlawful. The unlawful objects and purposes being of a negative character were not categorized: but in the course of the development of the law peculiar to trusts, it was declared that public policy prohibited the contravention of any fundamental legal rule by means of a trust. For example, a perpetuity could not be created by the medium of a trust. Long prior to the political independence of the American Colonies, the analogies between legal estates and equitable estates had become very striking. Trust estates were deemed capable of the same limitations as legal estates; indeed, the former were subjected to the common-law rules as to descents and devisability. The husband had courtesy in the wife's trust estates, though dower by some anomaly was excluded. Precisely what effect the New York statutes, abolishing legal entail, had by analogy on equitable entails, was perhaps never fully decided, though it doubtless converted them into equitable fees; at least such would seem to have been the assumption of a very great lawyer of this State, in the only case examined, reading at all to the point (8 N. Y. 16). When the aualogy between equitable and legal estates was perfected, it would have been anomalous, and for that matter, injurious, had the alienation of equitable estates been more fettered than the alienation of legal estates. Consequently equitable estates and interests therein became readily alienable and ultimately attempts to restrict such alienations were declared unlawful. In this respect, the Revised Statutes, prohibiting certain alienations of trust interests before alienable, are anachronistic. At common law the tendency was to render trust estates alienable; equitable entails might be broken and the entire estate disposed of by the cestuis que trustent, while even trusts to support and maintain were destroyed by the bankruptcy of the cestui que trust.

In considering the changes made by the Revised Statutes, in the old law of trusts, it becomes necessary to depart from the historical order and to take a retrospect from the standpoint of the later adjudications: Cases construing a statute are always more important than what the legislature intended the statute to express, though this last cannot be overlooked. Since the revision, as it must be apparent to any casual observer, a new learning of uses and trusts, peculiar to this State, has become recognized. As yet no comprehensive effort to arrange this new learning in a systematic treatise has been made, notwithstanding that the great and increasing value of property and the many adjudications in which such learning is embodied would seem to warrant the attempt. It would be presumptuous and futile to make such an attempt in a mere rudimentary essay. We must therefore confine our consideration of the subject to an imperfect summary of the leading changes which the revisors are held to have made in the former law of trusts.

The article on Uses and Trusts, C. I. (Part II. R. S.), proceeding from the general to the particular, first abolished all former uses and trusts and then saved the category enumerated. The construction of the repealing clause gave rise to some interesting questions, some of which are at the present time hardly settled. Foremost among these questiones vexatae is that concerning public trusts or charitable uses. Did such survive the statute? They were not enumerated in the saving clauses of the statute. But notwithstanding this fact, many eminent persons held to the

opinion that charitable uses and trusts were not within the purview of the Revised Statutes, just as their predecessors had maintained that secondary uses were not within the purview of the Statute of Uses (2 Sandf. Ch. 46, 9, 52; 3 Sandf. 242), others equally eminent entertained the contrary view (3 Sandf. 351; 9 Barb. 324; 15 id. 139; 17 id. 103). Until the year 1853 this particular question remained in doubt. Williams case (8 N. Y. 525) then decided that the law of charitable uses did not depend on the stat ute 43 Eliz. c. 4, and therefore did not fall with the repeal of the English statutes in 1788, but continued down to the Revised Statutes as a part of the law of New York which had been reconfirmed at the organization of the State government. That the law of charitable uses was independent of the Elizabethan Statute had been fully determined in the Girard College case. Williams case certainly did decide that the Revised Statutes of New York had not abolished the common law relating to those particular charitable uses and trusts in personal property which might be sustained without recourse to the doctrine of charitable approximation. This last doctrine was repugnant to our institutions and grew out of the royal prerogative and not out of the judicial power of the Lord Chancellor. It was therefore conceded to have no place in the particular jurisprudence of New York. (See also case of St. Clement's Church, 8 N. Y. 558). Some advocates of charitable uses went so far as to maintain that Williams case determined the validity of charitable trusts in lands as well as in personalty. This claim however was untenable. In its narrowest extent Williams case contained such a violent presumption against the revisors' language that it was either reluctantly acquiesced in or openly controverted, more especially as thinking people seriously questioned the wisdom of charitable uses, believing that they fostered indigence, priest craft and the like, and that public charities of right belonged to the largesse of the State. Soon after its decision that subtle process of differentiating indicated the final overthrow of Williams case. It had been as well to have reversed it at once and without the scholastic apology of distinguishing it in the first instance. In Owens v. Missionary Society of the Methodist Church (14 N. Y., 380, 411), the Court of Appeals, by a process of reasoning virtually dethroning Williams case, held that a voluntary society could not take as a trustee of a charitable use. (Selden, J., had previously committed himself to a view hostile to Williams case, 1 Am. Law Reg. 538). In Beekman v. Bonsor, 23 N. Y. 298, the gift of an uncertain sum to a charitable or pious use was held void even though the trustee was competent to take. (See also 23 N. Y., 69; id. 382). The reasoning in Williams case was further examined and questioned in Levy v. Levy, 33 N. Y. 97. Judge Wright argued that a new policy of charitable uses had been indicated by the Legislature, which freely created eleemosynary corporations with powers, objects and purposes clearly defined by law. In the Rose case (4 Abb. App. Dec. 112), the same court had shortly before held that charitable uses formed no exception to the law against perpetuities, and that limitations by way of charitable uses must vest (if they could ever vest), within the statutory time prescribed for the vesting of other estates. In the year 1866 Williams case was substantially overruled, though in a circumlocution so polite as to distinctly intimate that the real doctrines of that case might yet prevail in special instances. (Bascom's case, 34 N. Y. 584.) Subsequently in the case of Burrill v. Boardman, 43 N. Y. 254, the learned reporter was encouraged by something vague to intimate in a foot-note that the question as to whether the R. S. tolerated pious and charitable uses and trusts, was still an open one. But in Holmes v. Mead, 52 N. Y.

brief, as follows: (1) To sell lands for the benefit of creditors. (2) To sell mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon. (3) To receive the rents and profits of lands and apply them to the education and support, or either, of any person during the life of such person, or for any shorter term, subject to certain prescribed rules. (4) To receive the rents and profits of lands, and to accumulate the same for the purpose and within the limits prescribed in the first article of the same title. The lawful trust purposes were evidently circumscribed by the narrowest of boundaries. What special trust purposes survived as trust powers may be considered at a subsequent time. In the instances of the four express trusts, the revisors deemed it expedient that the legal title to lands should be in the trustee. This is one of the keys to the contemplated reform.

The first lawful express trust purpose was clearly necessary to the protection of the creditors of those failing debtors who were seised in fee of lands. For if the legal title remained in the debtor, even the right to create a power in trust could not prevent complications under the recording statutes. (64 N. Y. 332.)

The second trust purpose to sell mortgage or lease lands for the benefit of legatees nearly led to a construction opposed to the revised scheme against perpetuities. The power to lease lands implied, at common law, the power to take the rents and profits, which in turn implied an arbitrary term, during which the power of alienation was suspended. But the courts reconciled this inconsistency by holding that these acts consumed no appreciable time and worked no suspense whatever of the power of alienation. (16 Wend. 153; and see Mr. O'Conor's argument in Manice's case.) In the 56th section the revisors qualified the second trust purpose so that a mere devise to sell or mortgage lands, where the trustees were not empowered to receive the rents and profits of lands, vested no estate in the trustees, but the trust was valid as a power.

66

The third express trust purpose occasioned much discussion, not allayed by the speedy amendment in 1830. (c. 320, 4 Kent's Com. p. 324, note.) As thus amended the third trust purpose read, "To receive the rents and profits of lands and apply them to the use of-" (no longer to apply to the education and support of) -any person during the life of such person, or for any shorter term subject to the rules prescribed in the first article of this title." The rules referred to were of course those against perpetuities, and " any person implied the plural. (2 R. S. 778, § 11.) This third trust purpose, as originally drawn harmonized with the revisors' intention, which was to obliterate all durable trusts founded from motives of vanity, or of family influence, and to limit such trusts to the instances where it became necessary to provide for persons temporarily or permanently incapable of managing their own affairs. In such instances the revisors deemed it proper that a trustee should take the legal title. In order to protect such incapable persons the revisors deprived them of the power of anticipation (§ 63), but as it was impossible to define incapacity, the revisors foresaw that trusts for persons not strictly incapax would be created under this third trust purpose, and so they permitted creditors to reach that income of the trust property which was not necessary to the proper support and education of the beneficiary.

In the original trust purpose to apply the rents and profits of lands to the education and support of the beneficiary, the trustees were doubtless intended to be the responsible arbiters of the beneficiary's necessities within recognized legal limits, and the surplus of the income belonged, when not otherwise disposed of, or lawfully to be accumulated, to the persons presumptively entitled to the next eventual estate. (24 N. Y. 10.)

The imposition of so formidable a power and its attendant risks was calculated to deter proper persons from undertaking trusteeships, and this section was soon intimated to be the work of doctrinaires rather than of practical statesmen. Who would be a trustee under such circumstances? (14 Wend. 265.) In a moment of hesitancy the revisors permitted this trust purpose to be amended (Laws 1830, c. 320, § 10) as indicated. The consequence was that the amendment prostrated the main reform of the statute. The friends of reform have always maintained that the words "to apply to the use of any person" meant the same thing as the words "to apply to the education and support of any person" (2 N. Y. 310.), but the reactionary party have prevailed with the result that a trust "to apply to the use of any person now tolerates a passive trust to pay over the rents and profits of lands. (72 N. Y. 384.) This construction of the statute, when reinforced by a statute against anticipation, more rigorous than any clause against anticipation known to the common law* has rather increased than decreased the opportunities to perpetuate fortunes by means of a trust limitation, and to this extent the Revised Statutes have not been of a reforming character. So long as the prevailing construction of the 55th section stands, it will meet with no protest from the class it favors. It is safe though to predict that the law in question will ultimately be changed to a law possessing other tendencies.

The fourth express trust purpose simply restricted accumulations within the limits of the revised article relating to legal estates, a period shorter than that prescribed in England by the reforming statute enacted after Thelluson's case: 40 Geo. III, c. 98.

The Revised Statutes did not require, as has been indicated, that any particular formula or that the exact words of the statute should be employed in the creation of the lawful express trusts. It has been regarded as sufficient if the intention to create such a trust might be fairly collected from instruments in writing subscribed by the settler. (7 N. Y. 564; 53 id. 351; 64 id. 332; 72 id. 384; 78 id. 244; 85 id. 53.) Where the statutory trust is expressed in a recorded conveyance, as is required in order that it shall ever be valid as against subsequent bona fide purchasers for value (§ 64), it would probably make no difference that such a trust was expressed in the most inartificial or subtle phrases, for a subsequent purchaser would be bound to take notice of the legal effect of language. But the courts do not favor trusts by implication. (82 N. Y. 405.)

Soon after the passage of the Revised Statutes an important question arose in cases where lawful and unlawful trust purposes had been combined in the same instrument. This question involved the construction of the 58th section of the article on Uses and Trusts, which provided, that where an express trust shall be created for any purpose not enumerated no estate shall vest in the trustee. But notwithstanding the language of this section the courts adhered to the former rule. They held that the vice of the illegal trust purpose did not necessarily taint the legal trust purpose. (43 N. Y. 305; 44 id. 50, and note to this case; 59 id. 432.)

The scheme of the Revised Statutes of Uses and Trusts has been indicated but may be repeated: It was the abolition of all formal trusts, and to that extent it affected one of the reforms designed by the framers of the Statute of Uses: the restriction of the lawful special trusts to fewer purposes; the abolition of secret resulting trusts in favor of persons paying the consideration, and lastly, to cause the legal title to devolve according to the canon of descents in a greater number of instances than formerly. In the application

*In the interesting brief of Mr. Sanford, 6 N. Y. 575, is a history of the clause against anticipation.

of the revisors' scheme to the actual work of revision many minor sections contribute to the result. In the abolition of formal trusts several things were to be accomplished, such as the consistent devolution of the legal title in cases where formal or other unlawful trusts were attempted to be created, or then existed. (§§ 47, 56, 58 and 59.) Every avenue for a continuance of formal trusts was skillfully closed by the revisors, and in cases where the special trust purpose was converted into a statutory power, it was provided that the legal title, as it was not a necessary adjunct, should pursue that line of devolution it would have pursued had there been no power affecting it. For abundant caution all executed uses in possession were confirmed 80 that the Revised Statutes of Uses and Trusts should not be retroactive.

The adjective law of trusts was not affected by this article of the revision; it naturally belonged to a more extensive work which should include procedure.

The revisors had not only to effect the reforms mentioned, but they had to harmonize the revised law of uses and trusts with the revised laws concerning legal estates, for the revision preserved those distinct conceptions of property which the antinomy of the English juridical system had introduced here. In English jurisprudence the distinct conceptions of legal and equitable interests in property were soon discovered to be artificial, and a tendency to assimilate the two distinct interests arose. This reactionary tendency ultimately produced striking analogies between legal and equitable estates. An equitable tenant in tail could even alien his equitable interest by fine, and the courts talked gravely about the seisin and disseisin of equitable estates. Subsequent to the Revised Statutes some attempts to revive the former analogy between legal and equitable estates were made. Why, it was reasonably asked, should the rules concerning limitations of legal estates now differ from the rules concerning limitations of equitable estates or interests in lands? In cases where a remainder in a legal estate was limited on more than two lives in being, such remainder by the section accelerating remainders was preserved? Why should this not be the rule where a perpetuity by way of trust was created, antecedent to the remainder? But the courts intimated that the Revised Statutes had destroyed any analogy between legal and equitable estates in lands. Limitations beyond the legal trust period were vitiated by statute. (9 N. Y. 403.)

The revisors had to some extent contemplated the destruction of the former analogy between legal and equitable estates in lands. They provided that the cestui que trust should no longer take an estate in lands, and converted his rights in rem into an equitable interest enforceable in chancery. (§ 60.) This however was a verbal, rather than a substantial change, but in view of that clause of the Revised Statutes preventing anticipation by the beneficiary interested in a trust for the receipt of the rents and profits of lands, it certainly seemed logical to term such a beneficiary right, an interest, and not an estate-a right that is not assignable bears little similarity to an estate which is nomen collectionum, including the jus disponendi. In some other respects there is no longer a perfect analogy between the natures of legal and equitable estates in lands. Legal life estates must be limited to persons in being, but trusts may enure to the benefit of persons not in being when the trust is created. (24 N. Y. 14.) As the Revised Statutes now restrict anticipation, many difficult questions involving the jus disponendi of an equitable estate (e. g. 8 N. Y. 9) have now ceased, although others, perhaps as difficult, have succeeded them. Attempts to reach what is obviously a property right-the interest of a cestui que trust in a permanent

trust for the receipt of the rents and profits of landshave from time to time been attended with many embarrassments, owing to the change in the law. (31 N. Y. 9; 35 id. 361; 70 id. 270.)

The estate which the trustee now takes in all cases of valid express trusts-though apparently enlarged by the Revised Statutes, which declare that the trustee shall be vested with the whole estate, in law and in equity, subject only to the execution of the trust-is in reality not extended at all. Now as before the Revised Statutes, the trustee's legal estate is commensurate with the trust duty to be performed, and when this duty has been performed, eo instanti, the trustee's estate ceases (§ 67; 3 N. Y. 525; 43 id. 363), and oftentimes, by virtue of the statute, instantly devolves upon the person entitled to the next estate. (3 N. Y. 535; 7 id. 571; 10 id. 268; 34 id. 555.) Though in some cases a trustee may doubtless be compelled to execute conveyances to the next eventual owner, just as may the donee of a power in trust. (In arguendo, 24 N. Y. 15.)

The revisors made a radical change in the devolution of the legal estate on the death of trustees. Prior to the Revised Statutes the trustees might devise the legal estate, or it might descend to their heirs cloaked in the trust. But this inconvenient rule was wisely changed so that on the death of a trustee the legal estate, in all cases, passed to the appropriate court of judicature, possessing chancery jurisdiction. (44 N. Y. 249.) This canon of descents, if it may be so termed, had however no application to trusts ex maleficio. (14 Wend. 176.) The Revised Statutes made no change in the equity power to remove trustees for cause.

The peculiar distinction between legal and equitable interests in property not having been abolished-even if its abolition were possible-the courts have been obliged to continue to recognize such distinct interests, notwithstanding the abolition of the remedies correlated to these distinct rights.

Whether on the whole any great reform in the former law of trusts has been produced by the Revised Statutes is an open question. A new learning of trusts, founded on the revision, has certainly arisen, and our present law of uses and trusts, now as formerly, is to be found in reported cases rather than in a statutory form. In the hands of skillful conveyancers real property continues susceptible to very subtle modifications and limitations. Whether this is a healthy condition of the laws of real property, it is for the hustings and for our statesmen to determine. Each of us is entitled to the opinion that it were better had the revisors gone farther and destroyed all permanent trusts not intended for the sole benefit of persons incapaces. It is not an interference with the rights of property to abridge a power of testamentary disposition, and to destroy the power of accumulating over-grown or illgotten fortunes by means of trusts.

INDICTMENT FOR LIBEL.

NORTH CAROLINA SUPREME COURT, FEBRUARY TERM, 1882.

STATE OF NORTH CAROLINA V. TOWNSEND.* In an indictment for libel the alleged libellous matter must be set out according to its tenor. Tenor imports identity, and whenever that is destroyed, either by the omission or adoption of any one word, however slight the sense may be affected, it is fatal to the indictment. To give the substance is not sufficient; though the misuse or omission of a letter which works no such change in a word as to make of it a different one, will not be treated as a fatal variance.

dictment contains but one count in which there are but two specifications of libellous matter as contained in a printed card published by the defendant. .The first is that he published of aud concerning the prosecutor matters according to the tenor and effect following, that is to say: It is true P. C. Henkel has been shaking his coon skin in the church paper, and in many other ways endeavoring to manufacture public sentiment in his favor, and to do this, he, the said Henkel, has not only employed his friends as instruments, but has resorted to the foul means of false testimony and secret conspiracy." The second is that in another part of said card, he published of and concerning the prosecutor other matters “according to the tenor and effect following, that is to say: That which made P. C. Henkle depose falsely on the witness stand at Hickory is the cause of this muss, and we told you in the other sheet what that was, viz.: The devil, the father of lies, the source of all ungodly conduct."

On the trial, after making proof of its publication by the defendant, the State solicitor proceeded to read the card to the jury, and when he came to the part embraced in the second specification, the defendant obtected to the reading, on the ground that there was a variance between the matter as contained in the card and as set out in the indictment-the variance consisting in the omission in the latter of the word "all,” which in the card preceded the words "this muss,' but the court holding the variance to be immaterial, overruled the objection, and the defendant excepted.

The court instructed the jury that each one of the specifications, as set out in the indictment, contained matter libellous per se, to which the defendant also excepted.

Verdict of guilty, appeal by defendant.
Attorney-General, for State.

M. L. McCorkle, for defendant.

RUFFIN, J. We fully concur in the opinion expressed by the court, that the matter contained in the card and copied into the indictment is libellous in its na

ture.

Its tendency to degrade the prosecutor and render him odious is patent; and therein it comes fully up to the requirements laid down by the authors when defining the offense of libel. Sterner rules are applied to written or printed defamation than to verbal slander, because of the deliberation with which it is perpetrated, and the more permanent and extended consequences attending it.

But it is needless to elaborate this part of the case, since according to our law, an error was committed with reference to the evidence offered and received in support of the second specification, such as entitles the defendant to a trial by another jury.

As contained in that part of the card, the words are as follows: "That which made P. C. Henkel depose falsely on the witness stand at Hickory is the cause of all this muss," etc. As set out in the indictment, they are the same, except that the word "all" preceding the words "this muss," is omitted.

According to the current of authorities, beginning with the oldest and extending to the latest, and almost wholly unbroken, libel belongs to that class of cases, in which it is held to be absolutely necessary to set out in the indictment the alleged libellous matter according to its tenor. Rex v. Burr, 12 Mod. 218; Wood v. Brown, 6 Taunt. 168; 1 Russell, 352; 2 Bish. Cr. Pro., § 744; State v. Sweeny, 10 Sergt. & R. 173; State v. Wright, 1 Cush. 146; State v. Brownlow, 7 Hump. 63; Whitaker v, Freeman, 1 Dev. 271. The reason given for this is that the court may be able, from an exact knowledge of the contents of the publication as seen in the record, to form its judgment thereon; and that the accused may, if he please, demur, and thus have the

opinion of the court, as a question of law, upon the sufficiency of the matter to constitute libel, and thereby avoid submitting it as a mixed question to the jury.

Whenever necessary to be set out in the indictment, the law, to be consistent, must require it to be proved as charged. 'Tis needless to cite authorities for this, or refer to the many cases in which slight variances have been held by the courts to be fatal, as they are all to be found in the text books, and must be familiar.

An unmistakable principle which runs through them all is, that while the misuse or omission of a letter, which works no such change in a word as to make of it a different one, will not be treated as a fatal variance, still tenor imports identity, and whenever that is destroyed, either by the omission or adoption of any one word, however slightly the sense may be affected, it will be so regarded.

We are fully sensible of the fact that this strictness of pleading in criminal matters has given rise to much criticism, as having a tendency to obstruct the course of public justice, and we would gladly avoid it in this case if we could. But it is the duty of the courts to administer the law as they find it, and not to amend it. We have no more right to depart from this well established principle, technical though it may be, than from any other well recognized rule of law. Nor are we sure but that at last it is the only safe rule to pursue. To admit the substance only to be alleged and proved in such cases, would be to open a wide door to conjecture on the part of those upon whom the duty should devolve of determining when the substance had been sufficiently maintained; and soon one deviation from exactness would beget another, until finally all certainty, at which the law wisely aims and which is so imperatively demanded for the safety of the citizen, would be completely lost. The most that can be said against the rule is that it imposes upon the pleader the cxercise of just so much care and circumspection as may be necessary to insure exactness; and surely that can be no good reason for dispensing with it altogether, at the risk of introducing uncertainty into the administration of the law itself.

The judgment of the court below is reversed, and a venire de novo awarded.

STATE LAW DISCRIMINATING AGAINST PRODUCTS OF OTHER STATES.

IOWA SUPREME COURT, JUNE 7, 1882.

STATE OF IOWA V. STUCKER.

A statute of Iowa provided that the sale of intoxicating liquors should be unlawful excepting beer, and excepting also" cider and wine manufactured from fruits grown in this State." Held, that the statute was not in conflict with the Federal Constitution as discriminating against the products of other States. It was a police regulation which the State had power to enact.

NDICTMENT for maintaining a place where intoxicating liquors were unlawfully sold. The opinion states the case. Defendant was found guilty and ap pealed.

Wynn & Wynn, for appellant.

Smith McPherson, attorney-general for State.

ROTHROCK, J. The court instructed the jury to the effect that the term "intoxicating liquors" as it is used in the statute, includes all spirituous, alcoholic and vi nous liquors, except beer, and excepting also cider and wine manufactured from fruits grown in this State, which two last-named liquors may be lawfully sold by any person; and where it is shown that one accused of