and many imperfectly recording oral decisions.

If we sometimes think of the advantages of a separate court of chancery, we cannot overlook how the clashing of two diverse systems, sometimes in open cpposition, may create difficulties, and open ways for abuse. Equity thus became a cover to get delay. And it was such expedients for delay, with multiplying costs, which gave weight to the reproaches against the system in Eldon's time. It was under Eldon that the most extreme delays in chancery occurred. In his administration the chancery rolls became a veritable Herculaneum of lost and buried hopes, with untold misery to suitors. Almost every parliament had its attacks upon this chancellor, and even formal investigations.

Eldon was not only blamed for his doubts. and hesitation in deciding, but even for his over-indulgence and courtesy to counsel in permitting long and needless arguments so that successive counsel were heard over a single point of law. Still one may hardly credit what Bentham reports as the sayings of Romilly and Erskine, namely that Romilly, a few months before his death in 1818, declared: "The state of the court of chancery is such that it is a disgrace to civilized society;" and that Erskine, before his death in 1823, had announced: "If there is a hell, the court of chancery is hell." This accords with the story that after Erskine's client had been non-suited at law, the court observed that the plaintiff might resort to a Court of Equity for relief. Erskine exclaimed, in a tone of inimitable simplicity, "My Lord, would you send a fellow creature there?" Bentham also showed that when Redesdale retired from the Irish chancery, that court was in arrears six years of notices for 600 motions, and 427 calendar causes.11

How persistently the practitioners of not very long ago took strange liberties with

(11) Bentham's Works, Vol. V, p. 371.

the court of chancery appears from the experience of Sir John Hollams, the head of a firm distinguished in commercial and maritime affairs. He does not give the date, but it was apparently before 1870. He had sued at law for Russian clients to recover a large amount from an English firm. The defendants straightway filed a bill in chancery asking to restrain such proceedings at law. They set up in this bill at great length wholly fictitious allegations based on the imagination of the draftsman, without the slightest semblance of a foundation. To this, the Russian firm had to put in an answer verified by each member on oath. Unless such answer was filed in six days, the injunction issued to stay the proceedings at law. He adds that after the defendants obtained the needed delay they paid up the claim.12

From this we may infer the conditions at the period of a century ago. In all the states east of New Jersey had grown up a settled hostility to chancery cultivated by a literature in which its name symbolized prolonged hardships to suitors, so that even equity became odious to a people determined to reject all symbols and traces of royal prerogative.

From this summary glance we may see the field in which Kent in New York was to enter at the beginning of the last century. Born in Doansburg, in the town of Southeast, Dutchess County, in 1763, he was at Yale College at the outbreak of the Revolution. After his graduation he studied for three years in Poughkeepsie, where he was afterwards partner of Gilbert Livingston, and eventually formed acquaintance of Edward Livingston, famous for his Penal Code for Louisiana.

It was no small advantage that Kent had two years of thorough detailed training as master in chancery, under Chancellor Livingston, between the years 1796 and 1798. His appointment to the Supreme Court fol

(12) "Jottings of an Old Solicitor," pp. 33, 34 (London, 1906).

lowed in 1798, both of which preferments came from Jay. He was 34 when he went on the bench. Six years after he became chief justice.

From 1798 to 1814, John Lansing was chancellor. Upon his retirement in 1814, Kent was appointed to that office, which followed two years after Story had been. elevated to the Supreme Court at Washington. Kent's appointment in February, 1814, was followed by the New York statute of April 13th, 1814, requiring the reporter "to report and publish such decisions of the Court of Chancery as the Chancellor of the state shall deem of sufficient importance to be reported and published.13 Kent's diligence and system found an accurate editor in William Johnson, whose first volume of the chancery reports came out in 1816.

An early effect of these chancery decisions was the statute in Massachusetts, passed in 1818,14 which gave the justices

(13)

Pref. to Vol. I, Johns. Chan. Rep., p. 4. (14) L. 1818 Ch., 87. Maine, which became a separate State in 1820, granted to its Supreme Judicial Court certain equity powers by Act of February 20, 1821, which was almost the same as the Massachusetts Act of 1818, except a provision against retroactive effect on contracts. It was confined to express trusts created by deed or will, or involved in the settlement of estates. In 1830 the power was extended to "all cases of fraud, trust, accident or mistake." (L. 1830, c. 462.)

But by the same Act, section 2, was given "power to grant writs of injunction whenever the same shall be necessary to prevent injustice." In 1837 this was extended to cases of "nuisances and partnerships." (L. 1837, c. 209.)

In 1841, suits could be entertained for the foreclosure as well as for redemption of mortgaged estates, but this was only to be exercised "where the parties have not a plain and adequate remedy at law." L. 1856, c. 209, gave to the Supreme Judicial Court "power to hear and determine in equity all cases arising between copartowners of ships for the adjustment of their mutual and respective interests in such property and accounts theerof." In the revision of 1857 this power was extended to part-owners of other real and personal property with an extended power to construe wills with the mode of executing trusts.

The revisers, however, dropped the power to entertain equity suits to foreclose a mortgage, and excised the prior express limitation of equity powers to cases where there should "not be a plain and adequate remedy at law."

of the Supreme Court equity jurisdiction. "in cases of trusts arising under deeds, wills, or in the settlement of estates, and all cases of contract in writing, where a party claims the specific performance of the same, and in which there may not be a plain, adequate and complete remedy at law.15

I may claim for Kent that he not only gave equity a new standing in this country, but his research and the strength of the reasoning of his decisions had much to do with upholding British law in the United States. For in Kent's time there was a strong set against the English common law. The opinion in Connecticut was expressed that in this country the English law was no more obligatory than was the Roman law in England. There was also the influence of Bentham's criticisms, and an increasing admiration for the French codes enacted in a series between 1803 and 1810, causing a widespread demand for a code prepared upon French lines. Pennsylvania, New Jersey and Kentucky actually passed statutes against citing English decisions in the state courts. New Hampshire had a rule of court against it. In his "Essay on

Power," Emerson relates that "a Western lawyer of eminence said to me, he wished it were a penal offense to bring an English law-book into a court in this country, so pernicious had he found, in his experience, our deference to English precedents."

It was this situation that made Kent conservative. His decisions, in such clear and finished diction, show no pursuit of novel

The statutes enacted since are not unlike those in other States, such as suits by taxpayers to restrain municipal corporations from pledging the municipal credit or paying from its treasury money for any purpose not authorized by law. (L. 1864, c. 239.)

For further history of this gradual development of equity by slow and halting steps, see "Growth of Equity Powers of the Maine Courts"; Maine Law Review, November and December, 1915, by Honorable L. A. Emery, exChief Justice of Maine, to whom I am indebted for these references.

(15) See Jones v. Boston Mill Corporation, 4 Pick 507.

(16) "Conduct of Life," p. 63, ed. 1893.

Kent's conservative balanced judgment insured equity rulings, fair, just and well supported. The reasoning was carefully drawn from the highest sources and stated with simple clearness. Chief Justice CaChief Justice Caton, of Illinois, originally from New York, who early sat on the bench with Stephen A. Douglas, records that to prepare for chancery, he first read through every case in Johnson's Chancery Reports.18 The debt of our jurisprudence to Kent and Story is permanent and increases with a review of our legal history. But Kent came first, especially in equity, since Story's treatise did not appear till 1836. They were warm friends, reacting in thought on each other, -the binary stars of our jurisprudence!

The New York Constitution of 1821 retained the age limit of 60 for the Chancellor and Justices of the Supreme Court. Kent's vote in the Council of Revision under the first constitution sometimes checked

important measures from the legislature. Hence came a political hostility which was added to the impatience of the republican lawyers at Kent's adherence to English precedent. Such were the conditions in 1821, when the strength and wealth of the city were beginning to be felt against the ancient, but declining power of the upriver families. The situation is thus summarized by an erudite judge, especially versed in the judicial history of New York:

"These powers, which it is proper to say Kent had not sought, nor even helped to confer, he exercised without fear, in the

(17) Dunham v. Gould, 16 Johns. 367. (18) Lewis, Great. Am. Lawyers, Vol. VI, p. 319.

old-fashioned federal and professional manner, very exasperating to the newer school of republican lawyers, who would not defer so profoundly to the legal system of England. Thus, toward the year 1821, Kent, in the minds of his opponents, was the leading representative of the hated and influential survival of what they believed ought to have been purely ante-revolutionary traditions, having little applica

tion to the conditions of American life under the republic. His opponents deprecated the chancery conceptions of a 'throne of equity.' Indeed, the whole idea of a chancellor, they said, was associated with a kingship; a chancellor without a king was almost as inconsistent as a king without a chancellor. The entire chancery establishment came in for condemnation, because it fostered a class of officials and practitioners whose exclusiveness was distasteful to the population of the newer and growing parts of the state. Thus, side by side with Chancellor Kent's practical, conservative, and just administration of the court of chancery, were growing up the seeds of discontent in the minds of more independent and emancipated political thinkers."19

This age limit abridged Kent's term as chancellor, to the intense regret of the American bench and bar.20 But that disappointment indirectly led to the lectures that appeared in 1827 as his Commentaries, in which our law was most attractively stated,

(19) Honorable Robert Ludlow Fowler in his chapter on "Constitutional and Related Aspects, from 1801 to the Constitution of 1894" in "History of Bench and Bar of New York," Vol. 1, pp. 127, 128 (New York, 1897).

(20) The sixty-year age limit for the chancellor and for the supreme court judges had been fixed in the N. Y. Constitution of 1777. It has been attributed to the long term of Judge Horsmanden-the last Royal Chief Justice, who died in Flatbush in 1778. His later physical incapacity had been a grievance to the bar. (History of Bench and Bar of N. Y., Vol. I, p. 362.) In the Convention of 1821, a strong effort was made to unite law and equity in the Supreme Court. Van Buren, however, opposed it vigorously, declaring that "No judge of a court of common law would feel himself at home in 4 chancery suit." (Legal and Judicial History of New York, Vol. II, p. 107.)

with no needless feudal anachronisms. Great catholicity of citation from continental authors produced a work admirably fitted to follow the Louisiana purchase, and show persons reared under French and Spanish law how in many essentials our jurisprudence conformed to the fundamentals of the modern Roman law.

On July 31, 1823, Kent laid down the office of chancellor. At the end of 7th Johnson Chancery Reports is added as a sort of colophon: "This day the chancellor terminated his judicial labors, having heard and decided every case brought before him."

Why might not the 31st of July, 1923, be observed by setting up a tablet to the memory of the great chancellor and commentator upon our law? It should not be by any local bar, but preferably come as the tribute of the American Bar Association, representing all parts of this country. HARRINGTON PUTNAM.

New York.

BENEFIT SOCIETY-CHANGE OF BENEFICIARY.

NEW YORK LIFE INS. CO. v. DUNN et al.

District Court of Appeal, First District, Division 1, California. Feb. 19, 1920.

188 Pac. 1028.

The beneficiary named in an insurance policy which authorizes insured to change the beneficiary cannot, in the absence of a contract with insured or any special equities depriving him of the right to make such change, attack his change of beneficiary for undue influence on the part of the new beneficiary.

WASTE, P. J. The plaintiff, New York Life Insurance Company, brought this action in interpleader to compel the defendants to litigate among themselves their various claims to the proceeds of an insurance policy upon the life of John T. Dunn. Judgment was in favor of cross-complainant and respondent, May Cline Smith. Lillian S. Dunn, also a crosscomplainant, appeals.

It appears that John T. Dunn, on December 13, 1906, took out a life insurance policy in the New York Life Insurance Company in the sum of $10,000, naming Lillian S. Dunn, his wife, beneficiary thereunder. Under the terms of the policy Dunn had the right to change the beneficiary named therein. During his lifetime, on or about the 24th day of March, 1916, Dunn requested the insurance company to change the beneficiary named in said policy, and directed that May Cline Smith be named therein to theh extent of $6,500, and Georgia June Dunn, his daughter, to the extent of $3,500, which changes were made.

Dunn died on the 26th day of October, 1916. Thereupon Lillian S. Dunn, the wife, notified the insurance company that she was still the beneficiary named in the policy. She claimed there had been no legal or valid change therein, and that she was entitled to the proceeds of the insurance. May Cline Smith and Georgie June Dunn also demanded of the company the payment to them of the respective amounts already noted. The insurance company then commenced this action in interpleader.

Lillian S. Dunn filed her cross-complaint. She did not plead any contract with her deceased husband, or any special equities which would deprive him of the right to make a commutation of beneficiary in the insurance policy, but stood upon the ground that she might contest because the change was procured by fraud and undue influence. In that behalf she alleged the marriage of herself and Dunn; that to the time of his death she continued to be his lawful wife, and that the policy of insurance was taken out as a protection and source of provision for her in the event of the death of her husband and for her and such children as might be born to her and her husband; that May Cline Smith, by craftiness, flattery, coaxing, and other overt and sly ways, and means on the part of said May Cline Smith toward John T. Dunn, caused him to neglect his wife and daughter to the extent that said May Cline Smith became the mis tress of said John T. Dunn; that she exercised her influence unduly over him to such a degree that about the middle of March, 1916, he was not capable of acting freely and voluntarily; that at that time and because thereof he attempted to cause the beneficiary named in said policy to be changed; that said act was exercised and induced by the fraud and undue influence of said May Cline Smith while she

and Dunn were living together in adulterous relationship.

May Cline Smith filed her answer, denying the allegations of the cross-complaint, and prayed that the court decree that she was entitled to $6,500 because of such policy and the assignment.

At the trial it was admitted by the crosscomplainant, Lillian S. Dunn, that her husband was of sound mind at the time of executing the change of beneficiary. She then attempted to introduce evidence upon the issues of fraud and undue influence. The defendant and crosscomplainant, May Cline Smith, objected to this testimony upon the ground that, inasmuch as the decedent had the right to change the beneficiary named in the policy, and there not being any contract between the claimant and the decedent, or any special equities depriving the decendent of the right to make such change, any testimony tending to support the allegations of the complaint was inadmissible. The court sustained the objection and subsequently dismissed the cross-complaint. Its action in this regard is the object of attack upon this appeal.

The ruling of the lower court was correct. The precise question we are here considering was the basis of the discussion in Hoeft v. Supreme Lodge, Knights of Honor, 113 Cal. 91, 96, 45 Pac. 185, 33 L. R. A. 174. The court there decided that under the state of facts pleaded by the cross-complainant in the case at bar, and upon which she elected to stand, no cause of action existed in her favor; she having no vested right in the premises, but, at most, only the mere expectancy of an incompleted gift, revocable at the will of the insured. Waring v. Wilcox, 8 Cal. App. 317, 96 Pac. 910, New York Life Ins. Co. v. Daley, 25 Cal. App. 376, 143 Pac. 1033, and Supreme Council Am. Legion of Honor v. Gehrenbeck, 124 Cal. 43, 56 Pac. 640, are decisions holding to the same effect. Without further citation of authority, suffice it to say that these cases decide every point worthy of consideration in the present appeal.

The judgment is affirmed.

We concur: RICHARDS, J.; GOSBEY,

NOTE-Change of Beneficiary Effected by Fraud and Undue Influence.-The instant case appears to me to expand the principle of satisfaction by a stockholder as to compliance with rules prescribed by himself, in the disposition of a fund in his hands, beyond the intent of the rules themselves. It is a principle of equity that when a stockholder says to a Court that he stands indifferent as to claimants for a fund not belonging

to him, that the question of the real rights of claimants of the fund comes squarely up for arbitrament by a jurisdiction competent to award its distribution. Waiver of rules that may be appealed to is only within competency of the stockholder as to formalities. It is not of es

sence.

Thus take the case of Splawn v. Chew, 60 Tex. 532, and there the question turned not on fraud, but on whether there was a bona fide attempt to change. And so in Manning v. A. O. U. W., 86 Ky. 136, 5 S. W. 385, there was deemed a sufficient attempt in good faith to change. In Nally v. Nally, 74 Ga. 669, there was a defective transfer, but sufficient for the company which had the right to judge, in good faith, between claimants, where there was an attempt which equity itself might relieve.

But can it be said from this that a stakeholder standing neutral between claimants can in a Court of equity set up fraud by a claimant, when the jurisdiction it appeals to would repudiate it? Why does it pretend to be indifferent. when it assumes to give to fraud something it has the power to deny?

Thus in Adams v. A. O. U. W., 105 Cal. 321, 38 Pac. 914, it was said the association "has no interest whatever in the result. In effect it has paid the funds into the hands of the Court, and is now a stranger to the action, for a fund to which plaintiff and intervenor both claim title and their respective claims of ownership are to be litigated in the same way and determined upon the same general principles, as though the common source of title to this money came through a bequest or gift rather than from a mutual benefit association." Then it refers to another case which spoke of the Court awarding such a fund according to the equities in the case. Fraud is never favored by any equities of which I know. If one takes away from another a fund the latter would have gotten but for fraud, does it lie in the mouth of the wrongdoer to say it induced or compelled the stakeholder of the fund to turn it over to him? If fraud could thus be made a link in his title, why not robbery or any other violence overcoming free will?

This would not be a mere non-observance of directory provisions which a stakeholder enacts. It would be defiance of all these provisions. Therefore such cases as Henderson v. M. W. A., 163 Mo. App. 186, 146 S. W. 102; Ladies of Mod. Maccabees v. Daley, 166 Mich. 542, 131 N. W. 1127, and others of like purport have nothing whatever to do with cases of fraud, force, etc.

In Polish Nat. Alliance v. Naguoski, 71 N. J. Eq. 621, 64 Atl. 741, it was held that where one by fraud prevented compliance with rules of an association to effect a change the Court will view the fund as in a Court of equity, there to be disposed of according to equitable principles. If something is done by force and fraud to bring about the change shall equity be powerless not to condemn it? It seems to me that to ask the question is to answer it. Equity is not so shortarmed or hindered by technicality, especially when it is only the fraud feasor who invokes technicality. He is as much without any vested interest as the original beneficiary, for fraud and force confer no title against direct attack. C.