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and many imperfectly recording oral de- i the court of chancery appears from the excisions.

perience of Sir John Hollams, the head of

a firm distinguished in commercial and If we sometimes think of the advantages

maritime affairs. He does not give the of a separate court of chancery, we cannot

date, but it was apparently before 1870. overlook how the clashing of two diverse

He had sued at law for Russian clients to systems, sometimes in open cpposition, may

recover a large amount from an English create difficulties, and open ways for abuse.

firm. The defendants straightway filed a Equity thus became a cover to get delay.

bill in chancery asking to restrain such proAnd it was such expedients for delay, with

ceedings at law. They set up in this bill multiplying costs, which gave weight to the

at great length wholly fictitious allegations reproaches against the system in Eldon's

based on the imagination of the draftsman, time. It was under Eldon that the most

without the slightest semblance of a founextreme delays in chancery occurred. In

dation. To this, the Russian firm had to his administration the chancery rolls be

put in an answer verified by each member came a veritable Herculaneum of lost and

on oath. Unless such answer was filed in buried hopes, with untold misery to suitors.

six days, the injunction issued to stay the Almost every parliament had its attacks

proceedings at law. He adds that after upon this chancellor, and even formal in

the defendants obtained the needed delay vestigations.

they paid up the claim.12 Eldon was not only blamed for his doubts

| From this we may infer the conditions at and hesitation in deciding, but even for his ! the period of a century ago. In all the over-indulgence and courtesy to counsel in

| states east of New Jersey had grown up a permitting long and needless arguments so settled hostility to chancery cultivated by that successive counsel were heard over a a literature in which its name symbolized single point of law. Still one may hardly

prolonged hardships to suitors, so that even credit what Bentham reports as the sayings equity became odious to a people deterof Romilly and Erskine, namely: that Ro mined to reject all symbols and traces of milly, a few months before his death in

royal prerogative. 1818, declared: “The state of the court of chancery is such that it is a disgrace to

From this summary glance we may see civilized society;" and that Erskine, be

the field in which Kent in New York was

to enter at the beginning of the last cenfore his death in 1823, had announced: “If there is a hell, the court of chancery is

tury. Born in Doansburg, in the town of hell.” This accords with the story that af

Southeast, Dutchess County, in 1763, he

was at Yale College at the outbreak of the ter Erskine's client had been non-suited at

Revolution. After his graduation he studlaw, the court observed that the plaintiff might resort to a Court of Equity for re

ied for three years in Poughkeepsie, where lief. Erskine exclaimed, in a tone of in

he was afterwards partner of Gilbert Livimitable simplicity, "My Lord, would you

ingston, and eventually formed acquaint

ance of Edward Livingston, famous for his send a fellow creature there?" Bentham also showed that when Redesdale retired

Penal Code for Louisiana. from the Irish chancery, that court was in

It was no small advantage that Kent had arrears six years of notices for 600 mo

two years of thorough detailed training as tions, and 427 calendar causes.11

master in chancery, under Chancellor Liv

ingston, between the years 1796 and 1998. How persistently the practitioners of not His appointment to the Supreme Court folvery long ago took strange liberties with

(12) "Jottings of an old Solicitor," pp. 33 (11) Bentham's Works, Vol. V, p. 371.

34 (London, 1906).

lowed in 1798, both of which preferments of the Supreme Court equity jurisdiction came from Jay. He was 34 when he went | “in cases of trusts arising under deeds, on the bench. Six years after he became | wills, or in the settlement of estates, and chief justice.

all cases of contract in writing, where a From 1798 to 1814, John Lansing was

party claims the specific performance of chancellor. Upon his retirement in 1814,

the same, and in which there may not be Kent was appointed to that office, which

a plain, adequate and complete remedy at followed two years after Story had been

law.15 elevated to the Supreme Court at Wash

I may claim for Kent that he not only ington. Kent's appointment in February,

gave equity a new standing in this country, 1814, was followed by the New York stat

but his research and the strength of the ute of April 13th, 1814, requiring the re

reasoning of his decisions had much to do porter “to report and publish such deci

with upholding British law in the United sions of the Court of Chancery as the

States. For in Kent's time there was a Chancellor of the state shall deem of suf

strong set against the English common law. ficient importance to be reported and pub

The opinion in Connecticut was expressed lished.13 Kent's diligence and system found

that in this country the English law was no an accurate editor in William Johnson,

more obligatory than was the Roman law whose first volume of the chancery reports

in England. There was also the influence came out in 1816.

of Bentham's criticisms, and an increasing An early effect of these chancery deci

admiration for the French codes enacted in sions was the statute in Massachusetts,

a series between 1803 and 1810, causing passed in 1818,14 which gave the justices

| a widespread demand for a code prepared

upon French lines. Pennsylvania, New (13) Pref. to Vol. I, Johns. Chan. Rep., p. 4. Jersey and Kentucky actually passed stat(14) L. 1818 Ch., 87. Maine, which became

utes against citing English decisions in the a separate State in 1820, granted to its Supreme Judicial Court certain equity powers by Act of state courts. New Hampshire had a rule February 20, 1821, which was almost the same

of court against it. In his "Essay on as the Massachusetts Act of 1818, except a pro

Power,” Emerson relates that "a Western inst retroactive effect on contracts. It was confined to express trusts created by deed

lawyer of eminence said to me, he wished or will, or involved in the settlement of estates. In 1830 the power was extended to "all cases it were a penal offense to bring an Engof fraud, trust, accident or mistake." (L. 1830,

lish law-book into a court in this country, c. 462.) But by the same Act, section 2, was given

so pernicious had he found, in his experi"power to grant writs of injunction whenever ence, our deference to English precedents. 16 the same shall be necessary to prevent injustice." In 1837 this was extended to cases of

It was this situation that made Kent con"nuisances and partnerships.” (L. 1837, c. 209.) servative. His decisions, in such clear and In 1841, suits could be entertained for the

finished diction, show no pursuit of novelforeclosure as well as for redemption of mortgaged estates, but this was only to be exercised "where the parties have not a plain and The statutes enacted since are not unlike those adequate remedy at law." L. 1856, c. 209, gave in other States, such as suits by taxpayers to to the Supreme Judicial Court "power to hear restrain municipal corporations from pledging and determine in equity all cases arising be the municipal credit or paying from its treastween copartowners of ships for the adjustment ury money for any purpose not authorized by of their mutual and respective interests in such law. (L. 1864, c. 239.) property and accounts theerof." In the revision For further history of this gradual developof 1857 this power was extended to part-owners ment of equity by slow and halting steps, see of other real and personal property with an i "Growth of Equity Powers of the Maine extended power to construe wills with the mode Courts"; Maine Law Review, November and Deof executing trusts.

cember, 1915, by Honorable L. A. Emery, exThe revisers, however, dropped the power to

Chief Justice of Maine, to whom I am indebted entertain equity suits to foreclose a mortgage,

for these references. and excised the prior express limitation of

1 (15) See Jones v. Boston Mill Corporation, equity powers to cases where there should "not | 4 Pick 507. be a plain and adequate remedy at law."

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

ties and never an instance of carrying doc- old-fashioned federal and professional trines to extremes. In his own words: | manner, very exasperating to the newer "It is better to follow the course and order school of republican lawyers, who would of Providence, and suffer our general sys- not defer so profoundly to the legal system of laws, like our habits, to accommo tem of England. Thus, toward the year date itself slowly to our necessities, and to 1821, Kent, in the minds of his opponents, vary only with the gradual and almost im- was the leading representative of the hated perceptible progress of time and experi- and influential survival of what they beence.17

lieved ought to have been purely ante-revoKent's conservative balanced judgment

lutionary traditions, having little applicainsured equity rulings, fair, just and well

tion to the conditions of American life unsupported. The reasoning was carefully

der the republic. His opponents deprecated drawn from the highest sources and stated

the chancery conceptions of a “throne of with simple clearness. Chief Justice Ca

equity.' Indeed, the whole idea of a chanton, of Illinois, originally from New York,

cellor, they said, was associated with a who early sat on the bench with Stephen A.

kingship; a chancellor without a king was Douglas, records that to prepare for chan

almost as inconsistent as a king without a cery, he first read through every case in

chancellor. The entire chancery establishJohnson's Chancery Reports.18 The' debt

ment came in for condemnation, because it of our jurisprudence to Kent and Story is

fostered a class of officials and practitioners permanent and increases with a review of

whose exclusiveness was distasteful to the our legal history. But Kent came first,

population of the newer and growing parts especially in equity, since Story's treatise

of the state. Thus, side by side with Chandid not appear till 1836. They were warm

cellor Kent's practical, conservative, and friends, reacting in thought on each other,

just administration of the court of chan—the binary stars of our jurisprudence!

cery, were growing up the seeds of discon

tent in the minds of more independent and The New York Constitution of 1821 re

emancipated political thinkers."19 tained the age limit of 60 for the Chancellor and Justices of the Supreme Court.

| This age limit abridged Kent's term as Kent's vote in the Council of Revision un

chancellor, to the intense regret of the der the first constitution sometimes checked

American hench and bar.20 But that disapimportant measures from the legislature.

pointment indirectly led to the lectures that Hence came a political hostility which was

appeared in 1827 as his Commentaries, in added to the impatience of the republican

which our law was most attractively stated, lawyers at Kent's adherence to English pre

(19) Honorable Robert Ludlow Fowler in his cedent. Such were the conditions in 1821,

chapter on "Constitutional and Related Aspects, when the strength and wealth of the city from 1801 to the Constitution of 1894" in "Hiswere beginning to be felt against the an

tory of Bench and Bar of New York," Vol. 1.

pp. 127, 128 (New York, 1897). cient, but declining power of the upriver (20) The sixty-year age limit for the charfamilies. The situation is thus summarized cellor and for the supreme court judges had

been fixed in the N. Y. Constitution of 1777. by an erudite judge, especially versed in

It has been attributed to the long term of Judge the judicial history of New York:

Horsmanden—the last Royal Chief Justice, who

died in Flatbush in 1778. His later physical in"These powers, which it is proper to say

capacity had been a grievance to the bar. (His-.

tory of Bench and Bar of N. Y., Vol. I, p. 362.) Kent had not sought, nor even helped to

In the Convention of 1821, a strong effort was confer, he exercised without fear, in the made to unite law and equity in the Suprema

Court. Van Buren, however, opposed it vigor

ously, declaring that "No judge of a court of (17) Dunham v. Gould, 16 Johns. 367.

common law would feel himself at home in 1; (18) Lewis, Great. Am. Lawyers, Vol. VI, chancery suit." (Legal and Judicial History of p. 319.

New York, Vol. II, p. 107.)

with no needless feudal anachronisms. It appears that John T. Dunn, on December

13, 1906, took out a life insurance policy in the Great catholicity of citation from continen

New York Life Insurance Company in the sum tal authors produced a work admirably

of $10,000, naming Lillian S. Dunn, his wife, fitted to follow the Louisiana purchase, and

beneficiary thereunder. Under the terms of show persons reared under French and the policy Dunn had the right to change the Spanish law how in many essentials our beneficiary named therein. During his lifejurisprudence conformed to the fundamen time, on or about the 24th day of March, 1916, tals of the modern Roman law.

Dunn requested the insurance company to

change the beneficiary named in said policy, On July 31, 1823, Kent laid down the and directed that May Cline Smith be named office of chancellor. At the end of 7th therein to theh extent of $6,500, and Georgia Johnson Chancery Reports is added as a

June Dunn, his daughter, to the extent of sort of colophon: “This day the chancel

$3,500, which changes were made. lor terminated his judicial labors, having

Dunn died on the 26th day of October, 1916. heard and decided every case brought be

Thereupon Lillian S. Dunn, the wife, notified fore him.”

the insurance company that she was still the Why might not the 31st of July, 1923, beneficiary named in the policy. She claimed be observed by setting up a tablet to the

| there had been no legal or valid change therein,

and that she was entitled to the proceeds of memory of the great chancellor and com

the insurance. May Cline Smith and Georgie mentator upon our law? It should not be

June Dunn also demanded of the company the by any local bar, but preferably come as

payment to them of the respective amounts the tribute of the American Bar Associa already noted. The insurance company then tion, representing all parts of this country. | commenced this action in interpleader.

HARRINGTON PUTNAM. New York.

Lillian S. Dunn filed her cross-complaint. She did not plead any contract with her de. ceased husband, or any special equities which would deprive him of the right to make

a commutation of beneficiary in the insurance BENEFIT SOCIETY-CHANGE OF

policy, but stood upon the ground that she BENEFICIARY.

might contest because the change was pro

cured by fraud and undue influence. In that NEW YORK LIFE INS. CO. v. DUNN et al.

behalf she alleged the marriage of herself and

Dunn; that to the time of his death she District Court of Appeal, First District, Divi.

continued to be his lawful wife, and that the sion 1, California. Feb. 19, 1920.

policy of insurance was taken out as a pro

tection and source of provision for her in the 188 Pac. 1028.

event of the death of her husband and for her

and such children as might be born to her and The beneficiary named in an insurance policy which authorizes insured to change the bene

her husband; that May Cline Smith, by craftificiary cannot, in the absence of a contract with ness, flattery, coaxing, and other overt and sly insured or any special equities depriving him of

ways, and means on the part of said May the right to make such change, attack his

Cline Smith toward John T. Dunn, caused him change of beneficiary for undue influence on the

to neglect his wife and daughter to the extent part of the new beneficiary.

that said May Cline Smith became the mis. WASTE, P. J. The plaintiff, New York Life tress of said John T. Dunn; that she exercised Insurance Company, brought this action in in- her influence unduly over him to such a deterpleader to compel the defendants to liti. gree that about the middle of March, 1916, he gate among themselves their various claims to was not capable of acting freely and volunthe proceeds of an insurance policy upon the tarily; that at that time and because thereof life of John T. Dunn. Judgment was in favor he attempted to cause the beneficiary named in of cross-complainant and respondent, May said policy to be changed; that said act was Cline Smith. Lillian S. Dunn, also a cross exercised and induced by the fraud and undue complainant, appeals.

influence of said May Cline Smith while she

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and Dunn were living together in adulterous to him, that the question of the real rights of relationship.

claimants of the fund comes squarely up for

arbitrament by a jurisdiction competent to award May Cline Smith filed her answer, denying

its distribution. Waiver of rules that may be the allegations of the cross-complaint, and

appealed to is only within competency of the prayed that the court decree that she was en stockholder as to forınalities. It is not of estitled to $6,500 because of such policy and the

sence. assignment.

Thus take the case of Splawn v. Chew, 60 Tex. At the trial it was admitted by the cross- 532, and there the question turned not on fraud, complainant, Lillian S. Dunn, that her husband

but on whether there was a bona fide attempt

to change. And so in Manning v. A. 0. U. was of sound mind at the time of executing the

W., 86 Ky. 136, 5 S. W. 385, there was deemed a change of beneficiary. She then attempted to sufficient attempt in good faith to change. In introduce evidence upon the issues of fraud and | Nally v. Nally, 74 Ga. 669, there was a defective undue influence. The defendant and cross

transfer, but sufficient for the company which had

the right to judge, in good faith, between claimcomplainant, May Cline Smith, objected to this

ants, where there was an attempt which equity testimony upon the ground that, inasmuch as itself might relieve. the decedent had the right to change the bene

But can it be said from this that a stakeholder ficiary named in the policy, and there not be standing neutral between claimants can in a ing any contract between the claimant and the Court of equity set up fraud by a claimant, decedent, or any special equities depriving the

when the jurisdiction it appeals to would repu

diate it? Why does it pretend to be indifferent, decendent of the right to make such change, when it assumes to give to fraud something it any testimony tending to support the allega- | has the power to deny ? tions of the complaint was inadmissible. The

Thus in Adams v. A. O. U. W., 105 Cal. 321, court sustained the objection and subsequently 38 Pac. 914, it was said the association "has no dismissed the cross-complaint. Its action in

interest whatever in the result. In effect it has this regard is the object of attack upon this

paid the funds into the hands of the Court, and

is now a stranger to the action, for a fund to appeal.

which plaintiff and intervenor both claim title The ruling of the lower court was correct.

and their respective claims of ownership are to The precise question we are here considering

be litigated in the same way and determined upon

the same general principles, as though the comwas the basis of the discussion in Hoeft v. mon source of title to this money came through Supreme Lodge, Knights of Honor, 113 Cal. 91, a bequest or gift rather than from a mutual ben96, 45 Pac. 185, 33 L. R. A. 174. The court

efit association.” Then it refers to another case

which spoke of the Court awarding such a there decided that under the state of facts

fund according to the equities in the case. Fraud pleaded by the cross-complainant in the case is never favored by any equities of which I know. at bar, and upon which she elected to stand,

If one takes away from another a fund the latter no cause of action existed in her favor; she

would have gotten but for fraud, does it lie in the

mouth of the wrongdoer to say it induced or having no vested right in the premises, but, compelled the stakeholder of the fund to turn it at most, only the mere expectancy of an in over to him? If fraud could thus be made a completed gift, revocable at the will of the in

link in his title, why not robbery or any other eured. Waring v. Wilcox, 8 Cal. App. 317, 96

violence overcoming free will? Pac. 910, New York Life Ins. Co. v. Daley, 25

This would not be a mere non-observance of Cal. App. 376, 143 Pac. 1033, and Supreme

directory provisions which a stakeholder enacts.

| It would be defiance of all these provisions. Council Am. Legion of Honor v. Gehrenbeck,

Therefore such cases as Henderson v. M. W. A, 124 Cal, 43, 56 Pac. 640, are decisions holding 163 Mo. App. 186, 146 S. W. 102; Ladies of Mod. to the same effect. Without further citation

Maccabees v. Daley, 166 Mich. 542, 131 N. W. of authority, suffice it to say that these cases

1127, and others of like purport have nothing

whatever to do with cases of fraud, force, etc decide every point worthy of consideration in

In Polish Nat. Alliance y. Naguoski, 71 N. J. the present appeal.

Eq. 621, 64 Atl. 741, it was held that where one by The judgment is affirmed.

fraud prevented compliance with rules of an We concur: RICHARDS, J.; GOSBEY, association to effect a change the Court will view

the fund as in a Court of equity, there to be dis

posed of according to equitable principles. If Note-Change of Beneficiary Effected by Fraud something is done by force and fraud to bring and Undue Influence.-The instant case appears about the change shall equity be powerless not to me to expand the principle of satisfaction by to condemn it? It seems to me that to ask the a stockholder as to compliance with rules pre question is to answer it. Equity is not so shortscribed by himself, in the disposition of a fund armed or hindered by technicality, especially when in his hands, beyond the intent of the rules them it is only the fraud feasor who invokes techniselves. It is a principle of equity that when a cality. He is as much without any vested interstockholder says to a Court that he stands indif- est as the original beneficiary, for fraud and force ferent as to claimants for a fund not belonging' confer no title against direct attack.

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