three daughters, he provided that the widow should have $500,000 and that the residue should be invested as "an accumulating fund to be held by trustees during all the lives of the testator's sons and grandsons; and the oldest lineal male descendant" was to have the entire accumulation. The will was contested because of unreasonable restraint of alienation, being for three lives, but was sustained on appeal by the House of Lords in Thellusen v. Woodford, 4 Vesey 227. To place a limitation on property rights the statute 40 Geo. III, chap. 98, was enacted, which limits an accumulation by will or deed to two lives in being and 21 years. Similar statutes to prevent perpetuities are now in force in some States, but not in the State of Washington. That the common law applies seems to have been conceded. In re Galland's Estate, 103 Washington 106. The interminable litigation of the Thellusen case gave Dickens an opportunity to satirize the Court of Chancery under the renowned title of Jarndyce v. Jarndyce in "Bleakhouse," one of his masterpieces. Chancellor Kent, writing about 1830 in his commentaries, refers to Thellusen's will, saying: "If the limitation should extend to upwards of one hundred years, as it may, the property will have amounted to upwards of one hundred million sterling!" 4 Kent's Com. 287. Towards the end of the last century this estate was still in chancery, because of litigation to determine whether "the eldest male descendant or the male descendant of the eldest the eldest son should inherit the property." The court decided that the male descendant of the oldest son should have it, following the doctrine of primogeniture. It should be remarked, however, that the expenses of administration, state taxes and costs of litigation were so large that the estate was practically swamped, for there was scarcely more on final distribution than when the testator died; thus Kent's apprehensions of an enormous accumulation were entirely unfounded. No doubt a layman would say "the lawyers made away with this large fortune;" but the testator was to blame for

making a foolish will. Thellusen's purpose was to become known as the founder of the largest fortune of his time; it was a species of vanity, for the attainment of which he was willing to deprive his own children of their just inheritance. Nearly all litigation about wills arises because of an attempt on the part of the testator to vent his spleen or malice against some relative or to impose his whim and crochets upon succeeding generations. In a contest the courts and juries are inclined to sympathize with the heirs and find a way to break the will, thereby permitting the estate to be distributed according to law, despite Judge Lamm's epigram: "Where there is a will there is not always a way-to break it."

To provide evidence to sustain the will some testators have experts to certify to their competency and mental soundness by attaching such certificate. As a precaution tc prove that a testator is of sound and disposing mind and free from delusions, this proceeding is not only of doubtful value bu risky, as was said in Greenwood v. Cline, Ore. 29, thus: "Procuring certificates of two physicians attached to the will that they have examined testatrix and find her of sound mind and perfectly competent to make her will, is an unusual circumstance. which leads to a suspicion against the integ rity of the instrument."

Jeremy Bentham was a great law reformer and philosopher. One would not suspect any foibles in his will. Yet the fact is that he bequeathed his body to Dr. Southworth Smith, "that his preserved figure might be placed in a chair at the banque table of his friends and disciples when they met on any great occasions of philosophy and philanthropy." This curious request was actually carried out, the body having been provided with a wax mask to resemble him in life and placed in a mahogany glass case. It is now at University College, Oxford.*

The acquisition of phenomenal fortunes on the Pacific Coast, resulting in extrava

gant living and views, produced some peculiar wills. Perhaps the most noted was the will of James G. Fair, at one time Senator from Nevada, which involved an estate of more than $15,000,000. He died in San Francisco December 28, 1894; the next day a will was filed leaving his estate in trust for his three children, giving them the income for life, and upon their decease to be disposed of in various ways. On March 18, 1895, a pencil will was filed by Nettie R. Craven, then a principal in a public school. This second will devised the estate to the three Fair children direct, and was supported by them as the will of their father. After lengthy litigation it was determined that the Craven will was a forgery, together with deeds from Fair to her of valuable San Francisco property. The courts sustained the trust feature of the first will by a four to three vote.

Senator Broderick, who was killed by Judge David S. Terry in a duel September 16, 1859, left property of more than $250,000. An alleged will was admitted to probate in San Francisco October 20, 1860, whereby Broderick devised his whole estate to John A. McGlynn and George Wilkes. On November 29, 1861-more than one year after the entry of the judgment admitting the will to probate-the State of California filed a petition to escheat the estate because the deceased left no known heirs and that the will probated was not executed by Broderick. The lower court set aside the judgment declaring the will to be a forgery. This decision was reversed on appeal in California v. McGlynn, 20 Cal. 231. The court remarked: "If it shall be . found that the decree of the probate court, not reversed by the appellate court, is final and conclusive, and that so long as the probate stands the will must be recognized and admitted in all courts to be valid, then it will be immaterial and useless to inquire whether the will in question was in fact genuine or forged." This was based upon a statute which provided, "if no person

shall within one year after the probate contest the same, or the validity of the will, the probate of the will shall be conclusive;" therefore, the Supreme Court held the judgment final and conclusive after one year, and not subject to attack directly or collaterally. In 1869 relatives of Broderick brought suit in the U. S. Circuit Court to vacate the decree, upon the ground that the will was a fraud; but without success. This ruling was affirmed in the U. S. Supreme Court by a divided opinion. The decision of the California court holding that a court of equity could not grant relief from a forged will, unless a contest was commenced for that purpose within one year after the entry of an ex parte judg ment admitting such will to probate, has been much criticised and severely condemned. One writer said: "In the history of enlightened jurisprudence, this is a solitary instance where a forged will has been. upheld because courts exercising equity jurisdiction were unable to give relief." Schenk's Bench and Bar of California 212. The Broderick case was decided correctly if judgments are to have any permanency and conclusive effect. Whether the will was forged could have been determined in the probate proceedings, within one year after admission to probate as provided by statute; therefore, after one year the time for contest was barred. This case was cited in Hoscheid's Estate, 78 Wash. 309, upon the theory that the statute is one of limitation; otherwise, there would be no certainty. to titles acquired through wills and probate proceedings.

For many years an eccentric character lived in Seattle, who called himself Melody Choir, his real name being Joseph H. Melchoir. Like many people, not insane, however, he tried to get something for nothing, which he sought to accomplish by acquiring tax titles to Seattle property. Some of the lots he purchased for less than $5 each, through the rapid growth of the city, in the course of thirty years, had in

(5) In re Fair's Estate, 60 Pac. 442.

(6) Broderick's Will, 21 Wall. 503.

creased to $5,000. At the time of his death, than $120,000. The writer appeared as in 1907, his estate was appraised at more counsel for him in Baer v. Choir, 7 Wash. 631, which involved a tax deed. The lower court upheld his title, but the Supreme Court directed a reversal, declaring the deed void, which Choir, through his delusions, attributed to a conspiracy against him. For years he lived in a dug-out, his only friend being a dog, as queer as his master. Of course, he left a will. "For the benefit of posterity" he listed mankind according to a scale of merits; some were designated as trustworthy, others as suspicious, and the remainder as "unhung scoundrels;" his counsel and the appellate court attained to the "bad eminence" of the

last class.

Choir's will is closely written in a bound book of 148 pages, ten inches by eighteen inches. At the top and bottom of each page he wrote in red ink, "Witness hand and my seal-Melody Choir," followed by an elaborate seal, and dated October 20, 1900. The will was admitted to probate March 1, 1907. He writes of himself thus: "The incontrovertible facts in my case are these-there never was a better, all round individual ever set foot upon the regions of this broad State, than myself!" He declares that in 1875 he read Blackstone, but detested attorneys, for he says: "I never liked lawyers as a class, and to keep away from them and steer clear of their inveigling schemes and grasping machinations-ever an active ingredient in their diabolical professionhas been my constant, lifelong effort."

His egotism stood out ad nauseam; his egregious vanity caused him to provide that all his property should be spent for a mausoleum for himself and dog "Hoboe," plans and specifications for which are completely

shown in the will-it even shows a diagram of his teeth; his great virtues were to be engraven on the monument in ten languages. That no one might contest because of any marital relations, he declares: "I never was married or even engaged to be

married. Nor ever gave to any female, old or young, married or single, maid or widow, white or any color, directly or indirectly, verbal or written, open or implied, any pledge, vow or promise of marriage what

soever."

His will was contested by his brothers and declared void because of insane delusions.

Alfred Nobel, a Swedish inventor, died in Stockholm in 1896, leaving an estate of $9,000,000, the income of which, according to his will, is to be divided annually among five persons most distinguished and deserving in physics, chemistry, medicine, literature, and in the cause of universal peace. Each prize is about $38,000. The first was given to Roentgen in 1901 for the X-ray. Mme. Curie obtained a joint prize with Bequerel in physics in 1903; she was favored with a full prize for chemistry in 1911, in relation to radium. In 1906 a peace prize was awarded to President Roosevelt. It is rather paradoxical that a promoter of world peace should be recognized, for Nobel made his fortune out of explosives.

The bequests of Cecil Rhodes are likely to have a more momentous effect upon nations than any other will. When a young man he went to South Africa. Through great industry and keen perception of golden opportunities, he amassed a fortune of many millions out of the Kimberley mines. As with Warren Hastings and Lord Clive, the extension and grandeur of the British Empire became an obsession with him. He was the greatest of all imperialists. He, therefore, determined to devote his vast fortune to continue his imperialistic influence to remote generations. Few men by their energy and intelligence have succeeded in writing their names across a great continent as Rhodes did in Rhodesia. On

September 19, 1877, at the age of 22 years, he wrote his first will which evidences his world-dominating ambition for his native

land. The part applicable directs that his estate be used "to and for the establishment, promotion and development of a secret society, the true aim and object whereof shall be the extension of British rule throughout the world, the perfecting of a system of emigration from the United Kingdom and of colonization by British subjects of all lands where the means of livelihood are attainable by energy, labor and enterprise, and especially the occupation by British settlers of the entire continent of Africa, the Holy Land, the Valley of the Euphrates, the Islands of Cyprus and Candia, the whole of South America, the islands of the Pacific and heretofore possessed by Great Britain, the whole of the Malay Archipelago, the seaboard of China and Japan, and the ultimate recovery of the United States of America, as an integral part of the British Empire. Later he revised this will, but the underlying principle is world power and dominion. On July 1, 1899, he executed the will admitted to probate, by which his fortune was devised in trust to Earl Roseberry, Earl Grey, Viscount Milner, Alfred Beit, Dr. Jameson and Sir Lewis Mitchell, to be used for the establishment of scholarships at Oxford University, of which one hundred were allotted to the United States upon the same conditions as those awarded to the colonies. Rhodes declared that "it was foolish to leave large fortunes to relatives; it was so much wasted money."

The books are full of strange will cases and unusual circumstances under which wills were missing, and of the neglect of testators to follow some local requirement of statute law, through which great estates became the properties of persons never favored by the possessors. Novelists have taken advantage of these instances and written many a tale of absorbing interest based. on lost, destroyed or defective wills. As an illustration: in Pennsylvania a husband and wife proposed to will their property to each other. Through inadvertence each signed

(7) Life of Cecil Rhodes, by Sir Lewis Mitchell, pp. 72-3.

the other's will, which, of course, was void. The Legislature passed an act to validate these wills, which the court declared illegal, as title had vested in the heirs and they could not be deprived of it by statute."

A most interesting case of mystery is the lost will of Lord St. Leonards. As Edward Sugden he attained a reputation as a great lawyer. When 22 years old he had written a treatise on Vendors and Purchasers, for which he was paid $20,000. His father was a barber, so it cannot be said that he was boosted into high office through family influence. As Lord Chancellor he had occasion to declare the law of wills and often advised that "to put off making your will until the hand of death is upon you evinces either cowardice or shameful neglect of your temporal affairs. It is sinning in your grave." Note the irony of fate that his own will was missing, but six codicils were there. It was shown in explanation that there was a duplicate key to the will box, but there were four keys that allowed access to the duplicate, which reminds one of "Seven Keys to Baldpate." Oral testimony was offered to prove the contents of the lost will and admitted, which was sustained on appeal.10

The conclusion one may draw from the books is that testators should be satisfied with a simple, business-like will, which should be clear and specific, and should avoid numerous details, and above all that its provisions should be reasonable and just to anyone who has a legal right to be considered a beneficiary.

Edward H. Harriman was a business man of rare sagacity. His will is a model of brevity and good sense. He disposed of a colossal fortune of more than sixty mil

lions in these few words: "I give, devise and bequeath all my property, real and personal, of every kind and nature, to my wife, Mary W. Harriman, to be hers absolutely and forever, and I do hereby nominate and appoint the said Mary W. Harriman as executrix in this will." Signed by himself and two witnesses. This will would no doubt be valid anywhere, except for some local statutory requirements. In the State of Washington children should be provided for-that is, named in the will-otherwise there would be intestacy as to them; it would also have been advisable to provide that the executrix should not be required to give a bond.

This subject is as interesting and romantic as a tale from the Arabian Nights. There is the Gerard will case, argued by Daniel Webster before the United States Supreme Court; the Tilden trust, held void by a divided court; George Peabody's great benefactions stand out as remarkable achievements of one why began as a poor boy and who served in the War of 1812 as a private; and James Smithson, who endowed this nation with the Smithsonian Institute.

Why wills often pass human understanding was the speculation of Commodore

nderbilt when he commented on the wi of A. T. Stewart, saying: "I can't understand how the greatest merchant in this country, who began with nothing and made a fortune of millions, who was always clear-headed in business matters-how was it possible for a man of that kind to make such an utter damn fool of himself when he came to write his will." It should be added that the same question was probably asked by the heirs of the Commodore when they contested his will. Perhaps counsel in that case would not have conceded that Vanderbilt was any kind of a fool, for one of them, Henry L. Clinton, drew down a fee of $600,000.

Seattle, Wash.

FRED H. PEtersen.

BILLS AND NOTES TRANSFER AFTER

MATURITY.

ETHERIDGE et al. v. CAMPBELL.

Commission of Appeals of Texas, Section A. Nov. 5, 1919.

215 S. W. 441.

The purchaser of a past-due note is charged with notice of any defense which the maker has, but is not charged with notice of the secret equities of third persons.

STRONG, J. Defendant in error brought this suit against plaintiffs in error in the ordinary form of trespass to try title to two lots in the city of Dallas. The trial in the lower court was without the intervention of a jury, and resulted in a judgment in favor of defendant in error, which was affirmed by the Court of Civil Anpeals. 179 S. W. 1,144.

Both parties claim under the Dallas Land & Loan Company as a common source. The lots in controversy were on September 22, 1890, conveyed to Hollingsworth Bros. by said company, the consideration being $150 in cash and four notes executed by the grantees, one for the sum of $100, due in six months, and three for the sum of $250 each, due respectively September 22, 1892, September 22, 1893, and September 22, 1894. The deed contained an express reservation of the vendor's lien, and was duly recorded in 1890. The grantees, as additional security, also executed a deed of trust on the property, which was filed for record on September 23, 1890. Hollingsworth Bros. failed to pay the notes, abandoned their contract, and left the state. The Dallas Land & Loan Company on June 9, 1891, made to C. E. Bird, as assignee, a general assignment for the benefit of creditors. Bird, as assignee, on July 21, 1892, deeded to T. L. Marsalis all the property then held by him under said assignment, except certain lots de scribed in the deed, the exception not including the lots in controversy. Marsalis on July 21, 1910, deeded to David Scott the two lots in controversy, which on August 23, 1910, were conveyed by Scott to plaintiff in error, I. G. Etheridge. On June 2, 1913, Marsalis and Scott, by written transfer, conveyed the notes and lien above described to Etheridge. Snodgrass, the trustee in the deed of trust, resigned; and under the authority conferred therein, Etheridge appointed J. L. Addison as substitute trustee. Addison, under the authority conferred in the deed of trust, sold the lots at public sale on July