Dutch. I carry away from this region the pleasantest memories of man and art. To my thinking the Dutch are the most courteous, considerate and kindhearted of all the European peoples. As many of them speak English, it is possible that they have the advantage of expressing what others feel but cannot express, but I never felt so at home on the continent as in Holland. There too I saw the prettiest women and the only beautiful children in Europe. The great towns of Antwerp, Rotterdam, The Hague and Amsterdam, with the intervening landscape, form a panorama which frequently unrolls itself before one's mind. My ear is still haunted by the sweet chimes of Antwerp Cathedral, and before my eyes still floats the vision of Rubens' great pictures, at the feet of which Ouida's artist-boy, in "A Dog of Flanders," breathed his last sigh of aspiration. The very acme of art I find in Rembrandt's "Night Guard,' at Amsterdam, and "Anatomy Lecture," at The Hague. I have not seen the Sistine Madonna, but until I see it, Rembrandt will seem to me the king of the painters. The same good fortune about fêtes attended us here, for we found great fairs at Antwerp and Rotterdam, attended by the peasantry, arrayed in ancient and curious headgear and priceless ancestral lace, which form their chief dowry. The Plantin Museum, illustrating the history of printing, at Amsterdam, rivals the Cluny in charm, and our inn was the "Bible Hotel," formed out of the ancient printing-house at which the first Dutch Bibles were printed. The rear of this holy house was upon the wickedest part of the town, including a dissolute "Bijbel Café;" which impels me to say:

In Augustus, J891,

Attracted by its holij name,

Their homeward journeij almost done,
A wearij band of pilgrims came
To the Bijbel House at Amsterdam.
Its front majestic to their eijes,
Brought Genesis and Paradise;
The rear with riotous dissipation
Unfolded an awful Revelation.

Amsterdam is the best mart for antique silver that I know of, considering forms and prices, and our women here went mad over buckles and bag-tops and spoons. At Rotterdam however I discovered an antique silver milk-pitcher in the shape of a cow, which I regret my pecuniary inability to bring home. Some other day I hope to possess her or one

of her calves.

I must tell my friends of the Holland Society of New York that I heard the praises of that society sounded in my railroad travel in this country, and when it was discovered that one of our party bore an ancient Dutch name, extremely honored in New York, our fellow-travellers bowed down to him, and when the women found out that his girl-baby had an ancestral Dutch Christian-name, two hundred years old, the women fairly embraced his wife, and forthwith all proceeded to exhibit and compare baby-photographs and exchange cards and goodwishes. I really didn't dare tell these good ladies that my maternal grandfather was a Dutchman. If

I ever visit Europe again, and find myself lonely, I shall immediately proceed to Holland.

One of the funniest things about European travel is one's ineffectual struggling to express himself in the language of the country, and soon discovering that his auditor speaks English as well as he himself can. At Heidelberg one of our party mounted a carriage-box on a drive in order to exercise his German on the driver, when he soon ascertained that the latter had been in the United States twenty-seven years, and was going back in the fall to return to his trade of butcher! I had a similar experience at Rotterdam, with a stranger gentleman, my only travelling companion, who on arrival late at night rendered me very material assistance, and who had lived in Minnesota.

After all my wanderings and experiences, England looked more beautiful than ever, although I was snatched through the charming Midland country at the rate of sixty miles an hour, and every instant expected to be dashed off a curve.

One thing in England strikes an observer as singular, namely, the disproportion of its public monuments to the merits and services of the dead who repose beneath them. The dome of the Invalides and the Lion of Lucerne are in proper proportion to the glorious names which they celebrate. But the Albert Memorial, although it commemorates a beautiful and excellent character, and one whom all Americans admire, outshines the memorials of Wellington and Nelson. So in Westminster Abbey, the most interesting mortuary church in the world, Prior, who was hardly a poet at all, has the finest monument in the Corner, far surpassing the memorials of Milton, Dryden and even Shakespeare. The acme of absurdity in statues is reached in Liverpool in the equestrian effigy of Queen Victoria in a modern riding-habit and hat. After all, it would seem that the world worships virtue more than glory.

The drowsy lions of Trafalgar lie,

With pride and conquest sated, round about
The hero's column; travellers pass by

With careless glance, and oftener without
A thought of all the glory storied there,
That makes the Lion-Island's fame so fair.

Thou solitary Lion of Lucerne,

Defeated, gasping on an alien shield

To thee the stranger's steps with fondness turn,
Thou dying majesty! to thee we yield
The tribute due to loyalty and love
Unshaken as the solid cliff above.

At the end of all this pleasuring - which by the way is the hardest work I ever did the feeling of greatest gratitude is elicited by getting Home again. If one could step directly ashore from England, it might be different, but after seven days of a bad passage, I part company with the monster ship with the following aspirations:

Farewell to the cranky ship,
Farewell to its sickening roll,
Farewell to the nauseous dip
That separates body from soul!
Farewell to the narrow berth,
Farewell to its stifling air,
Farewell to the tedious dearth
Of the steward's bill of fare!

Farewell to the blinding fog,

Farewell to the "Siren's" screech, Farewell to the daily log,

Farewell to the chairman's speech!

Hurrah for the solid land,

Hurrah for a good wide bed, For dishes that I understand And satisfy after I've fed! Hurrah for the goodly grass, Hurrah for the steady plain! I will never be such an ass

As to venture to sea again.

IRVING BROWNE.

There were some superhuman misprints in my previous letters, which must have puzzled my readers. "Vags" for "rage, Styrge for "Stryge," " for Longboro Longbow,' "boozo for booze," and "side" for "Lido," are enough to bring an editor prematurely home with blood in his

eye.

NOTES OF CASES.

I. B.

N Granger v. Lyman, Superior Court of Buffalo, Equity Term, March 10, 1891, 39 N. Y. St. Rep. 288, N. and L., copartners in business, finding themselves unable to pay their debts in full, confessed judgment to M., upon which execution was levied upon their entire property. The debt upon which judgment was confessed was a bona fide one to the full amount of the judgment. In an action by a judgment creditor of N. and L. to set aside the judgment as in effect a general assignment, made to secure one creditor a preference over the other, and therefore in violation of the General Assignment Act, held, that such remedy was authorized by law, and that the judgment would not be set aside. The court say: "In Knapp v. McGowan, 96 N. Y. 86, Earl, J., says: That any creditor, whether solvent or insolvent, may, acting in good faith, mortgage a portion or the whole of his property, to secure one or more of his creditors for any indebtedness, cannot be doubted.' If the creditor may secure by mortgage, he can secure by any other remedies au

thorized by law. And where the claim is just and bona fide no court will deprive a person of the right to enforce a judgment regularly obtained. Trier v. Herman, 115 N. Y. 163. In the following cases the courts have held that a confession of judgment or other instrument, which secures to the creditor all the debtor's property, in the absence of a general assignment made at or so near the time as to be said that all is a part of one scheme, is not within the provisions of the act, and is not void as providing for an unlawful preference. Stein v. Levy, 29 N. Y. St. Rep. 87; Boessneck v. Cohn, 7 N. Y. Supp. 622. The reasoning in Spellman v. Friedman, 27 N. Y. St. Rep. 302, I think, leads to the same result, i. e., that when the confession of judgment is independent of the assignment, or none is made, and it is based upon a valid debt then due, it will be upheld. This view is in harmony with a decision of the same court in First National Bank of Jersey City v. Bard, 10 N. Y. Supp. 634, where the court held that a judgment by confession does not necessarily make it a part of a general assignment, even though confessed at or about the time of the assignment, but that regard must be had to other circumstances, and if the judgment was not confessed for the purpose of hindering, delaying or defrauding creditors, and was supported by a just debt, it could be upheld as independent of the assignment. In the present case no assignment was made, and the judgment possesses more of the elements of a general assignment. Brown v. Guthrie, 110 N. Y. 441. Counsel for plaintiff relies upon White v. Cotzhausen, 129 U. S. 329. It is not to be denied that much of the reasoning contained in the opinion delivered in that case, supports plaintiff's contention, for the evidence herein shows that the levy made covered the debtors' entire property, and that they contemplated surrendering their property and retiring from business; yet notwithstanding this fact the courts of this State have distinguished it in its application to a state of facts similar to those now under consideration. In First National Bank of Jersey City v. Bard, supra, stress is laid upon the fact that in the White case there was a finding that the judgment there confessed was without adequate consideration, and that it was confessed with intent to hinder, delay and defraud creditors. None of these elements existed in the bank case, and they are not found here. In Trier v. Herman, 115 N. Y. 163, Judge Earl, in speaking of the White case, and upholding the judgment then under consideration, says: There was but one statute regulating the matter, and that was violated.' As before observed, the reasoning in Spellman v. Friedman, supra, also distinguished and limits the White case, as already pointed out. I am aware that the doctrine of the latter case has been quoted with approval in Manning v. Beck, 26 N. Y. St. Rep. 483, but in that case the facts were entirely different from those now under consideration, as the court found that the transfer and assignment were a part of one scheme. The White case was an appeal from the State of Illinois, and construed the

provisions of the State's Insolvent Act, which prohibited preferences. It followed and construed the decisions of the State court, basing its decision substantially upon the case of Preston v. Spaulding, 120 Ill. 208, and was decided in January, 1889. Subsequent decisions in the same State have not only not followed it, but have expressly repudiated its doctrine. Farwell v. Nilsson, 24 N. E. Rep. 74, decided March 31, 1890. The court there held that a failing debtor might give judgment notes, although all his property be taken on execution to satisfy the judgments, and that such notes were not assignments nor within the provisions of the act. This was precisely the same security held bad in the White case. See Hanford v. Prouty, 24 N. E. Rep. 565, where the Preston case is distinguished. Id., 569. These cases seem to establish that the doctrine here contended for has never obtained in the State of Illinois, notwithstanding the language of the White case. It seems quite clear that the facts now before us are distinguishable from those before the court in the latter case, and that the decisions of the courts of this State have regarded such distinction of fact as sufficient to remove this case from the application of the doctrine therein announced. As this view must now obtain, judgment is ordered in favor of defendant, dismissing plaintiff's complaint, with costs."

Blewitt v. Boorum, New York Superior Court, General Term, May 4, 1891, 39 N. Y. St. Rep. 244, was an action upon a contract by which the parties of the first part granted to the parties of the second part the full and exclusive right and license to manufacture, sell and use a certain invention covered by a patent issued to Russell during the term of the patent, and as consideration for such grant the parties of the second part (the defendants) agreed to manufacture the patented article, and to pay to each of the parties of the first part the sum of two and one-half cents on each binder as royalty. The agreement was executed by all the parties under their respective hands and seals, and it was actually delivered to the plaintiff. The answer admitted the making of the contract sued on, and alleged as a defense that it was agreed between the parties at the time of the making of the contract that the same was to take effect as to the plaintiff only when he should have acquired a one-half interest in the patent by performance of a certain agreement that he (the plaintiff) had made with Russell, the other party of the first part to the contract in suit, whereby the plaintiff was to acquire from Russell a one-half interest in the patent; that the plaintiff never carried out such agreement with Russell, never acquired a half interest from Russell, and subsequently abandoned all attempt to obtain an interest in such patent, and relinquished and transferred to Russell all his right, title and interest under the contract. At the trial there was no controversy as to the actual delivery of the contract, or a copy of it, to the plaintiff, but the defendants offered to prove the oral agreement between the parties, as above stated, and that the plaintiff had

failed to require from Russell a one-half interest in the patent. The plaintiff duly objected to such evidence as inadmissible, but the court overruled the objection and received the evidence, to which ruling the plaintiff duly excepted. Upon the evidence thus received the court found, as a fact, that at the time of the execution of the contract sued upon it was expressly agreed between the parties thereto that the same was not to take effect as a contract until the plaintiff should have acquired a one-half interest in the patented improvement and letters-patent, in pursuance of the agreement between plaintiff and Russell, and that the plaintiff did not at any time acquire such half interest. The court also found, as a fact, that the contract was never delivered to the plaintiff as a subsisting legal obligation. Freedman, J., said: "These findings are fatal to plaintiff's case, if the evidence upon which they rest was admissible, and the only question presented therefore is whether or not it was error to receive such evidence. It is settled in this State that if a deed is delivered to a party or his authorized agent, and not to a stranger, it is absolute, and parol evidence of conditions qualifying the delivery is inadmissible. Worrall v. Munn, 5

N. Y. 229, and cases there cited. It is also settled that parol evidence is admissible to show that a written paper, not under seal, which in form is a complete contract of which there had been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition resting in parol. Reynolds v. Robinson, 18 N. Y. St. Rep. 235; Harnickell v. New York Life Ins. Co., 111 N. Y. 390. It remains to be seen what the rule is as to an instrument under seal, which is not a deed, and does not relate to the transfer of the possession of land. Upon this point great confusion exists in the books. Formerly the tendency undoubtedly was to distinguish generally between sealed and unsealed instruments. Of late the tendency has been to disregard the distinction between sealed and unsealed instruments whenever it can be done without a violation of some settled principle of law. The precise point now under consideration has never been put at rest. In Dietz v. Farish, 79 N. Y. 520, Church, C. J., even says with reference to a deed: 'The court, in Kider v. Keith, 109 E. C. L. R. 34, announced the well-established rule. It said: There is no doubt in point of law that where by express declaration, or from the circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until some contemplated event should have happened, the deed is not a complete and perfect deed until that event has happened.' A review of all the cases to which our attention has been called upon this point would serve no useful purpose. Suffice it to say that a careful analysis of them with reference to the state of facts peculiar to each, shows that the confusion which does exist arises not so much from the decisions as from dicta which are obiter, and that the strict enforcement of the rule which rejects parol evidence qualifying the delivery has been almost exclusively in cases of instruments

THE CHARGING OF DEBTS AND LEGACIES ON THE REALTY BY WILL.

In Romaine v. Chauncey, New York Supreme Court, General Term, First Department, June 26, 1891, 39 N. Y. St. Rep. 480, it was held that alimony allowed to a wife by the final decree granting her a divorce is not her property or separate estate, and cannot be reached by creditors whose claims and judgments antedate such decree. Barrett, J., said: "The nature of alimony must not be overlooked. It is not the wife's property nor her separate estate. It is simply a provision compulsorily made for her support by the guilty husband. The law thus enforces the obligation assumed by the husband at marriage, and the alimony becomes a substitute for the maintenance which is the wife's due, and which she would receive directly from the husband, and in his home, but for the dissolution of the marriage contract by reason of his infidelity. This was the doctrine of the common law, and the rule was substantially codified both in the Revised Statutes and the Codes of Procedure. At common law alimony properly signified nourishment or maintenance when strictly taken. Godol. Ab. 508. It was not a portion of the husband's estate, assigned to the wife, and subject to her control or to be sold at her pleasure, but a provision for her support, to be continued during their joint lives or so long as they live separate. Martin, J., in Wallingsford v. Wallingsford, 6 Har, & J. 485. 'Alimony,' says Mr. Bishop, 'is not a sum of money or a specific proportion of the husband's estate given absolutely to the wife, but it is a continuous allotment of sums payable at regular periods for her support from year to year.' Bish. Mar. & Div., § 591. If she is compelled,' he says again (§ 604), 'to seek a divorce on account of his misconduct, she loses none of her rights in this respect, that is, in respect to support, only she is to draw her maintenance in a different way.' In Daniels v. Lindley, 44 Iowa, 567, it was said that the claim of the wife for alimony was not in the nature of a debt, and that she was not a creditor of the husband. So in Guenther v. Jacobs, 44 Wis. 354, Byron, C. J., said that alimony is not an estate, and therefore not separate property of the wife. It is an allowance for the nourishment of the wife, variable and revocable. And see Burr v. Burr, 7 Hill, 207-213. The language of the Code is equally explicit. The court may, in the final judgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of the plaintiff as justice requires, regard

IT

T should now be reasonable to assume, in view of recent decisions of our Court of Appeals on the subject, that the question in this State whether the debts of a testator are by his will charged upon the realty, will be decided by trial courts, and by intermediate appellate courts, without reference to the multitude of decisions on that subject under the common law. Since the enactment of our statutes which in effect

charge all the debts of a decedent upon his realty for three years after the issuing of letters testamentary or of administration upon his estate, and thereafter make the heirs and devisees liable therefor to the extent of the value of the real estate descended or devised to them respectively, in default of sufficient personalty, the common-law decisions charging debts upon the realty by nice and even forced and unnatural construction of the will, or of particular words or phrases of it, have had no applicability in this State. The per

sistency however with which they have been cited and

followed, furnishes a striking instance of how courts will cling to a dry rule after the cause out of which it grew, and the reason upon which it was founded, have ceased to exist, as though a common-law rule should be made to survive after the reason and foundation for it have been wholly removed by statute.

The question of charging legacies upon the realty still rests upon common-law rules and the decisions of courts alone. The reason for still inclining to so charge them by construction of the will is the same as the former reason for seeking to so charge them, as well as the debts, by like construction, namely, that unless charged upon the realty they cannot be paid in default of sufficient personalty. Though by statute that reason has been wholly removed as to debts, courts have quite generally continued to treat the question of charging debts and that of charging legacies by will on the realty as substantially identical, and to cite cases deciding the latter as applicable to the former, as was the case at common law. The purpose of this article being to show the explicitness now necessary in a will in order to charge debts upon the realty in this State, and how on the other hand legacies may be so charged by construction, and to give the reason for the difference, the two cases will be treated as distinct subjects, which they have become.

I.

At common law a debtor's real estate was not subject to sale for the payment of his general debts, either before or after his death. The reason and origin of this is easily disceruible in the qualified tenures upon which lands were held under the feudal system. Hume Hist. Eng., vol. 1, app. II. The vassal could not alien, devise or incumber his feud, without the consent of his lord, nor at first was it descendible without like consent. It could be forfeited by the lord for a breach by the vassal of his obligation of fealty. With the gradual relaxation of the feudal system, and its evolution from a military plan or organization, under which personal strength and prowess were the chief requisites in a fief holder, into a civil establishment, and the consequent change of the tenures under which lands were held, feuds by degrees lost their original characteristics and finally became fixed and independent estates. Blackstone, bk. II, chap. 4. It followed that estates in land became inheritable and could be aliened or devised. With equal reason they could be directly incumbered by mortgage, or otherwise made liable for obligations of the owner;

and therefore if he made his real estate answerable for a debt by contract of specialty, in which he bound himself and his heirs, the land could not only be charged with such debt in his life-time by a suit in equity, and sold to pay it, in default of personalty, but in the same way it could be reached after his death, his heirs being bound by the contract to the extent of the real estate which descended to them. Text-books are meagre and obscure on this subject. While stating in general words the rule to be that the real estate which descended to the heir might be sold to pay debts of the decedent, evidenced by contract of specialty in which the heirs are bound, they omit to state whether such real estate was not in the same way answerable on such contract during the decedent's life-time, and the cases cited in support of the text do not answer that question. The inference is that when one incurred a debt by contract of specialty, in which he bound himself and his heirs, he thereby made his real estate liable to the payment thereof, as otherwise the binding of his heirs was purposeless and of no effect. If the real estate was not so liable in his life-time, it is difficult to see on what principle it became liable upon his death. Simple contract debts however were not on this footing, and could be enforced only against the personalty either before or after his death. Such became the rules of the common law. Jarm. Wills, chap. 45; Broom & Had., bk. 2, chap. 19. By statute however a general judgment creditor could be put into possession of onehalf of the debtor's freehold lands, and retain such possession until the debt was satisfied out of the rents and profits. 13 Edw. I, chap. 18. Not until 1838 was a general judgment creditor enabled by statute in England to satisfy his claim by a sale of the debtor's lands. The tedious details and proceedings in Chancery provided by that act,were amended in 1860, and again in 1864 (27 and 28 Vic., chap. 112) but were still left very cumbersome.

It is interesting to note when and how the lands of a debtor became liable to be sold in this State to satisfy his general debts. In the British colonies of America the debtor's real estate was made so answerable by statute in 1732. 5 Geo. II, chap. 7. This statute, after reciting that "whereas his Majesty's subjects trading to the British Plantations in America lie 'under great difficulties for want of more easy methods for the proving, recovering and levying of debts due to them," enacted that "the Houses, Lands, Negroes and other Hereditaments and Real Estates situated or being in the said Plantations belonging to any person indebted shall be liable to and chargeable with all just debts, duties and demands of what nature or kind soever, owing by any such person to his Majesty or any of his subjects, and shall and may be assets for the satisfaction thereof, in like manner as Real Estates are by the law of England liable to the satisfaction of debts due by bond or other specialty, and shall be subject to like remedies, proceedings and process in any court of law or equity, in any of the said Plantations, respectively, for seizing, extending, selling or disposing of any such Houses, Lands, Negroes, and other Hereditaments and Real Estates, toward the satisfaction of such debts, duties or demands, and in like manner as personal estates in any of the said Plantations, respectively, are seized, extended, sold or disposed of for the satisfaction of debts." The language of this statute shows that at that time by the common law debts evidenced by contract of specialty could be satisfied by the sale of the debtor's lands, as has been hereinbefore inferentially stated. In 1801 a statute was passed in this State (chap. 105) providing that the lands of debtors might be sold on execution to satisfy any judgment for money, and directing that the execution should command the officer to whom it was directed to satisfy it out of the sale of personal property of the debtor, or if that proved insufficient, out of his

real estate; and through the Revised Laws of 1813 (1 R. L., p.500) this enactment has passed down to the present time. A debtor's real estate having thus been since early colonial times liable to be sold to satisfy his general debts, it would seem to have reasonably followed that upon his death it would continue to be so auswerable; but that such was not the understanding will be seen from the statutes to be cited later which were passed to charge the real estate of decedents in this State with the payment of their debts.

To resume: The simple contract debts of a debtor not being collectible at common law by the sale of his real estate, and he being dead, and no longer capable of making his real estate thus liable therefor, which he was not obliged to do in life, but not unlikely to do in order to be free from execution against his body, or, as matter of good conscience, in order that they should not go unpaid, the courts looked into his will, disposed to find words therein charging such debts upon the realty, the personalty being insufficient to pay them. Hence, although no such charge could be found directly or expressly made in the will, a word or a phrase would be seized upon by the courts and construed to effect that result. The cases to be found on that head constitute a long line. The construction in most of them displays the eagerness of courts to spell out of the will an intention on the part of the testator that his general debts should in default of sufficient personalty be paid out of his realty. To cite a few familiar examples, although a testator's real estate was not liable to be sold in his life-time for the payment of his simple contract debts, it was held that a direction in the will for the payment of the testator's debts generally, or that they be paid out of his estate or property, did not mean merely that they should be paid out of the property by law liable therefor, but amounted to a charge of them upon the realty in default of sufficient personalty; that the words, "first, I will that all my debts be justly paid," or "I will and devise that all my debts, legacies and funeral expenses shall be paid and satisfied in the first place," or "my debts being first satisfied," or "after payment of my just debts," and the like, followed by a general disposition of the testator's estate, real and personal, effected such a charge. This method of construction was carried to an extreme not shown by these examples, as they are not extreme ones, in order "that men should not sin in their graves," and was criticised as seeking to make men more honest after death than they were required to be in life.

As early as the year 1786 the Legislature of this State changed the common law by enacting that in case the personalty was insufficient to pay the debts of a decedent, "every creditor, whether by simple contract or by specialty, and whether the heirs are mentioned therein or not, shall and may by virtue of this act have and maintain his, her and their action and actions against the heir and heirs at law of any debtor who hath already died, or shall hereafter die intestate seized of any manors, messuages, lands, tenements or hereditaments; and against the heir and heirs at law, devisee and devisees of such debtor, in case such debtor made any last will and testament. Laws 1786, chap. 27. This act regulates the bringing of such actions, and fixes the measure of responsibility of the heir or devisee, according to the value of the real estate descended or devised to him. It also empowers probate courts to sell the real estate of decedents to realize money to pay their debts when there is a lack of personalty. The system is quite complete. It was re-enacted into the Revised Laws, passed in 1813 (1 R L., pp. 316, 450), and thence into the Revised Statutes. 2 R. S., p. 100, § 1, etc.; p. 452, § 32, etc. The foregoing enactments, revised and improved from time to time, are now incorporated into the Code of Civil Proced§ 1843, etc.; § 2749, etc.

ure.