way contrary to what would be the provision of the law." "That there should be some rules to be acted upon, no one can doubt;" which "being established, this house cannot listen to suggestions of minute differences which would not meet the ordinary apprehensions of mankind, and which would necessarily lead to great discussion and litigation." "The acknowledgment of his signature by the testator is sufficient,5 51 but a witness stands in a different position."

A curious case has just been decided by the Supreme Court of Massachusetts.52 The testator having received a severe injury was lying upon his bed unable to move. His sight was unimpaired, but he could only look upward, and was incapable of observing what took place at his side. The codicil was attested and subscribed by the three witnesses at a table at the side of the bed, about four feet from his head. The will was subscribed at a table about nine feet distant from the testator in an adjoining room. The door was open, and the table was in the line of vision of the testator, if he had been able to lock,and the witnesses were within his hearing. The testator could hear all that was said and knew all that was being done. After the witnesses had subscribed their names the will was handed to the testator; he read their names as signed, and said he was glad it was done. The court held that the attestation of both the will and codicil took place in the presence of the testator, and upheld the will. In delivering the opinion of the court, Morton, C. J. said, in answer to objection of the contestants: "So nice and narrow a construction is not required by the letter and would defeat the spirit of our statute. It is true that it is stated in many cases that witnesses are not in the presence of a testator unless they are within his sight; but these statements are made with reference to testators who can see. As most men can see, vision is the usual and safest test of presence, but it is not the only test. A man may take note of presence by the other senses, as hearing and touch. Certainly, if two men

51 In New Jersey, under a statute which provides that the will shall be signed by the testator in the presence of the subscribing witnesses," an acknowledgment of his signature is insuflicient. Den v. Milton, 7 Halst. 70; Combs v. Jelly, 2 Gr. Ch., 625; Mickle v. Mitlack, 2 Harrison, 86.

52 Riggs v. Riggs, 16 Rep., 461.

are in the same room talking together, they are in each other's presence. If two men in the same room are conversing together, and either or both close or bandage their eyes, they do not cease to be in each other's presence. It would be against the spirit of our statute to hold that, because a man is blind, or obliged to keep his eyes bandaged or because he is by an injury prevented from using his sight, he is deprived of a right to make a will." "The witnesses must subscribe in his presence;' but where he has lost or cannot use his sense of sight; if his mind or hearing is not affected; if he is sensible cf what is being done; if the witnesses subscribe in the same room or in such close proximity as to be within the line of vision of one who in his position could see, and within his hearing, they subscribe in his presence and the will is valid."

The current of judicial decision has, of late, set rather strongly in favor of reducing the liabilities of trustees. This is, no doubt, mainly due to the common sense view so often expressed by the late Master of Rolls, that the result of fixing a trustee with responsibilities such as the older judges sought to lay on him would be to prevent substantial persons from accepting the office of trustee. That lamented judge ssid in In re Speight "It seems to me that on general principles a trustee ought to conduct the business of the trust in the same manner that an ordinarily prudent man of business would conduct his own, and that beyond that, there is no liability or obligation on the trustee. In other words, a trustee is not bound, because he is a trustee, to conduct his business in other than the ordinary and usual way in which similar business is conducted by mankind in transactions of their own. It never could be reasonable to make a trustee adopt further and better precautions than an ordinary prudent man of business would adopt, or to conduct the business in any other way. If it were otherwise, no

1 31 W. R., 402.

one would be a trustee at all. He is not paid for it. He says, 'I take all reasonable precautions, and all the precautions which are deemed reasonable by prudent men of business, and beyond that I am not required to go.' It is obvious that, if this is to be taken as the principle for the future, many of the rules which grew up during the time in which the Court of Chancery persisted in regarding the trustee as an insurer of the property of his cestui que trust will have to be greatly modified. We do not propose, however, to consider to-day the extent to which this will have to be done, but to draw attention to a remarkable instance of a rule which probably owed its origin to a suggestion based on the very principle laid down by the late Master of Rolls, and yet has been subsequently supposed to be a hard and fast rule."

The real author of the so-called two-thirds rule, under which a trustee can only advance to two-thirds the value of land, was Lord Romilly; but it is easy to see that it was originally based on a misapprehension of a remark made by Lord Cottenham. The latter learned judge, when Master of the Rolls, had to consider, in Stickney v. Sewell 2 the case of an executor who lent part of the testator's estate on a security which proved insufficient. He said: "To advance twothirds is admitted to be within the rule cf ordinary prudence; but that is with reference to property of a permanent value, as freehold land. The same rule does not apply to property in houses, which fluctuates in value, and is always deteriorating." That is to say, Lord Cottenham thought that an ordinary prudent man would at all events advance up two-thirds of the value cf land. He did not say it would be imprudent to advance any more Lord Romilly, in Norris v. Wright 3 however, laid it down that "the ordinary rule in strictness is, that upon freehold security you must not advance more than two-thirds of the value." He afterwards seems to have discovered that there was no foundation of authority for this rule; for in Macleod v. Annesley he said:-"I do not know that it has ever been distinctly laid down by authority, but it has been the general understanding of the profession, and the general practice cf

21 My. & Cr., 13.

8 14 Beav., 307.

4 16 Beav., 603.

the court in these cases, to consider that a trustee is not justified in advancing money on agricultural freeholds to the extent of more than two-thirds of the value; and if a trustee were to lend trust-money to a greater extent he would hardly be considered to have exercised a wise or safe discretion." In Ingle v. Partridge 5 he added the further rule that "a trustee cannot with propriety lend trust money upon mortgage upon a valuation made by or on behalf of the mortgagor. If he does, and the valuer has bona fide valued the property at double its value, the trustee must take the consequences; he ought to have employed a valuer on his own behalf to see to it."

In the recent case of In re Godfrey, Godfrey v. Faulkner these rules have been decided to be not hard aud fast rules binding on the court. The facts of the case were shortly that trustees advanced trust-money on a mortgage of freehold lands with which they were well acquainted; they had no independent valuation made, and relied on the valuation made on the sale of property a short time previously, one of the trustees being a solicitor and one of the vendors of the property. The amount advanced exceeded two-thirds of the estimated value of the property. Owing to the agricultural depression, the mortgagor became insolvent, and the property, having depreciated in value, became an insufficient security. The cestui que trust brought an action against one of the trustees and the executors of the other trustee for a declaration that they were liable to make good to the plaintiff the amount lent on the mortgage. Vice-Chancellor Bacon dismissed the action. He said: "It is the duty of a trustee, in administering the trusts of a will, to deal with trust property exactly as any prudent man would deal with his own property. But the words in which the rule is expressed must not be strained beyond their meaning. Prudent business men in their dealings incur risk. So that, not intending, so far as I am concerned, to relax the strict meaning of the rule I have referred to, I consider that that rule is the only one I have to attend to in this case." This seems to be a throwing overboard of the so-called two-thirds

5 34 Beav., 414. 6 32 W. R., 23.

rule, and the rule as to independent valua tions; and the learned judge subsequently remarked: "It is said that the amount advanced was more than two-thirds of the estimated value of the security; and then, it is said, the 'two-thirds' rule has been departed from. But the two-thirds rule has never been applied with mathematical exactness when the amount has been exceeded by such a proportion as £300 or £500 bears to the sum advanced in this case. The test has always been, is this what a prudent man of the world would have done with his money?"

This appears to us, if we may humbly say so, to be sound common-sense; and it is especially gratifying to find these opinions proceeding from the very Vice-Chancellor who, in Speight v. Gaunt, was referred to by the late Master of the Rolls in the following terms: "My view has always been this, that where you have an honest trustee, fairly anxious to perform his duty, and to do as he thinks best for the estate, you are not to strain the law against him-to make him liable for that which he has done, and which he believes is right, in the execution of his duty -unless you have a plain case made against him. In other words, you are not to exercise your ingenuity, which it appears to me the Vice-Chancellor has done, for the purpose of finding reasons for fixing a trustee with lia. bility; but you are rather to avoid all such hypercriticism of documents and acts, and to give the trustee the benefit of any doubt, or any ambiguity, which may appear in the document, so as to relieve him from the liability which it is sought to fix him with."-Solicitor's Journal.

DIVORCE-EFFECT OF CONDONATION.

CUMMING v. CUMMING.

Supreme Judicial Court of Massachusetts, September Term, 1883.

Where the libellant had herself committed adultery -six years prior to the offense complained of by her, and the libelee, at the time, with full knowledge of the facts, condoned her offense, such crime affords no defense to the present libel.

Sohier & Welch, for the libellant; J. P. Treadanell and E. P. Usher, for the libellee.

ALLEN, J., delivered the opinion of the court: No testimony was taken at the trial in support of the libellee's offer to prove that the libellant had committed adultery and confessed the same to him, but, for the purpose of determining this case, it must be assumed that he could have proved the facts which he offered to prove; and the question thus presented for decision is, whether a married woman, who has committed adultery and confessed it to her husband and been expressly forgiven by him, and who has lived with him for six years thereafter, is debarred from maintaining a libel for a divorce on the ground of his adultery committed after such a period of cohabitation. There is no statute upon this subject in this Commonwealth and no binding authority by way of precedent; and the question is, therefore, a new one here. We are met at the outset with the preliminary question whether the court should lay down a general rule of law applicable to all cases, or determine each case as it arises upon its own merits. We are more inclined to

deal with the question as one of principle, and to seek for the general rule by which this case and other cases presenting similar facts should be governed. It is to be observed that such a condonation as that which is included in the offer of proof and the facts stated in the present case was as complete and perfect as could ever exist. It is to be assumed in our consideration of the question that there was an express confession of adultery and an express forgiveness, followed by a voluntary cohabitation for a number of years. The effect of cohabitation as a condonation may be supposed to be less stringent upon a wife than upon a husband, for the reason that she may be more under martial authority, sub potestate, and more

destitute of advice and assistance. And it has ac

cordingly been considered that the force of condonation, as a bar to proceedings for a divorce, varies according to the circumstances. Beeby v. Beeby, 1 Hagg., 789. In the case before us, the condonation was on the part of the husband, and nothing appears in the offer of proof to show that there was anything to mislead him in any way, or any misapprehension on his part, or anything to prevent him from leaving his wife at once upon the discovery of her offence, or that there has been any subsequent misconduct on her part, or violation of the implied condition upon which a condonation rests. It is further to be observed that recrimination, as a bar to a divorce, is not limited to a charge of the same nature as that alleged in the libel. Handy v. Handy, 124 Mass. 394, and cases cited; Drummond v. Drummond, 2 Am. & Tr. 268. The whole ground of condonation goes upon the ground that there is in law no such thing as an unpardonable offense against the marriage relation. Even adultery is not universally found to be unpardonable in actual experience, and it should not be deemed to be so in law. It is an offense which may, at the option of the injured party, serve as the ground for a divorce; or it may be overlooked and forgiven.

The course to be pursued is a matter to be determined when the facts become known. The question then presents itself. The opportunity is afforded for a separation, for an escape from the marriage relation with its duties and burdens and indignities, and it may be its oppressions and cruelties; and there is also the chance, the possibility, of some degree of comfort and happiness from a united family and of various advantages springing from a continued reunion. Various motives may prompt the injured party to endure the sense of wrong and to condone the offence. But whatever the motive, if one is under no stress of circumstances, but is free to act in either way, and who has a full understanding of all the facts, deliberately and freely elects to condone the offence and to take the real or supposed advantages which are expected to arise therefrom, it is better to hold, as a general rule, that the day for legal complaint has passed, and that the mouth of the injured party ought thereafter to be sealed as to that par ticular offence, unless a similar offence is repeated in the future. To hold otherwise would operate to some extent as an encouragement or license to the condoning party to commit offences against the marriage relation, and would also tend to give a constant sense of inequality between the parties in respect to their legal rights. All condonation is in a sense conditional; that is, there is an implied condition that the same offence shall not be repeated. It is not, however, attended with the further condition that the offender shall be disqualified from thereafter alleging any ground of complaint for subsequent misconduct against the condoning party. No such inequality should be established by an arbitrary rule of law applicable to all cases. Condonation restores equality before the law.

We have not overlooked the consideration that an original adultery by a libellant may have had the effect to weaken the sense of the obligation of the marriage contract on the part of the libellee, and that for this reason a divorce under such circumstances ought to be refused. This consideration is of weight, and would deserve especial attention, if judicial discretion were to be exercised in determining a case; but it is not sufficient to overcome the controlling reasons in favor of the establishment of a general rule to the contrary. For these reasons, we are of opinion that, even if the libellee could have succeeded in establishing by proof the facts stated in his offer, they would have constituted no defense; and that, therefore, there was no occasion to go into the evidence and ascertain and determice the facts.

Divorce to be granted.

Supreme Court of Kansas, Nov. 9, 1883.

1. The plaintiff was a lawyer; obtained a permanent and actual residence at Chanute, in Neosho County, Kansas; resided there for several years; and was then appointed Collector of Internal Revenue of the United States for the District of Kansas. The office of such collector was required to be held at the City of Leavenworth, Leavenworth County, Kansas, and the duties of the office required the plaintiff's presence in Leavenworth City nearly all the time. The plaintiff went to Leavenworth and remained there for about five years, but at no time did he have any intention of changing his place of residence, but at all times considered Chanute his actual place of residence, and continued to vote there and not at Leayenworth, and intended to return to Chanute whenever he should cease to hold his office. He was a single man, and boarded at Leavenworth with a family for about three or four years. He was then married to a woman who had never resided in Kansas, but whose home was in Pittsburg, Pennsylvania. After his marriage, he and his wife boarded at Leav enworth for about seven or eight months, when the plaintiff rented a furnished house in the City of Leavenworth, and they kept house there for about seven weeks, when they separated and the wife went back to her former home in Pittsburg, Pennsylvania, and the plaintiff rented sleeping apartments in Leavenworth and again commenced to board. He continued to board at Leavenworth for about two months, when he commenced the present action in the district court of Neosho County, Kansas, to obtain a divorce from his wife on the ground of "extreme cruelty." Held, that the district court of Neosho County had jurisdiction to hear and determine the case; that the plaintiff was at the time of the commencement of this action a "resident'' or an actual resident" of Neosho County, Kansas, within the meaning of sections 54 and 640 of the Civil Code; that these sections contemplate the actual and permanent residence of a party, and n t merely the temporary and official residence which a party may adopt during the time of his holding Federal office.

2. In the above-mentioned action, the trial court refused to submit the case to a jury for trial and tried the case itself. Held, that this was correct and was not, under the circumstances of the case, any abuse of judicial discretion.

3. It appears from the findings of the court and the evidence, that the defendant, the plaintiff's wife, while they were residing in Leavenworth City, Kansas, among other wrongs, prepared and sent anonymous letters to a clerk in the office of her husband, falsely charging that a criminal intimacy existed between her husband and the wife of such clerk; and also prepared and sent anonymous letters to the editors of newspapers at Leavenworth, making similar charges, with the expectation that such charges would be published in the newpapers and be made public; and also prepared and exhibited to another clerk of her husband, another anonymous letter containing similar charges. Her husband was at the time a member of a church and professed to be an honest and faithful Christian, and had high aspirations for political preferment

These charges not only tended to wound his feelings and destroy his peace and happiness, and to impair his bodily health, but they were also naturally calculated to put his life in jeopardy; they were naturally calcu lated, if the clerk believed they were true and that a criminal intimacy existed between the plaintiff and the clerk's wife, to cause the clerk to take vengeance n the plaintiff. Held, that this conduct on the part of the plaintiff's wife constituted "extreme cruelty'' within the meaning of the statutes authorizing the granting of divorces on the ground of extreme cruelty; and further held, that any unjustifiable conduct or the part of either the husband or the wife, which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other, as to seriously impair the bodily health or endanger the life of the other, or such as in any other manner endangers the life of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes extreme cruelty" under the statute. although no physical or personal violence may be in. flicted or even threatened.

Error from Neosho County.

E. Stillings, L. Stillwell and Wm. C. Hook, for plaintiff in error; Hutchings & Denison, Lucien Baker and John R. Goodin, for defendant in error. VALENTINE, J., delivered the opinion of the

court:

This was an action brought by John C. Cirpenter against Eliza D. Carpenter, his wife, in the district court of Neosho County, Kansas, to obtain a divorce on the ground of "extreme cruelty." The case was tried by the court without a jury, and the court found in favor of the plaintiff and against the defendant, and granted the divorce prayed for. The judgment was rendered April 16, 1883. To obtain a reversal of this judgment, the defendant, as plaintiff in error now brings the case to this court. The first alleged ground for reversal is that the district court had no jurisdiction of the subject matter of the action; and this contention is predicated upon the provisions of section 54 and 640 of the Civil Code. The substance of these sections is that the action for divorce is a local action, and can be brought only in the county of which the plaintiff is "a resident" or "an actual resident" at the time of filing the petition. The facts with reference to this subject, as found by the court below, are as follows:

"2. That plaintiff is a lawyer by profession, has heretofore, but not since the day of March, 1878, been engaged in the practice thereof; that at or about that time he was appointed to, and accepted the office of Internal Revenue Collector of the United States for the district of Kansas; that at the time of such appointment he was practicing law, and had his library, office, sleeping apartments, and washing done in Neosho county, Kansas; that he was the owner and in possession of both real and personal property located in the City of Chanute, in said county, which city was at the time of his said appointment, within the geographical limits of Neosho County; that the plaintiff has ever since his said appointment voted in the said County of Neosho, and at no other

place; that he has claimed Neosho County as his residence for more than ten years last past and now claims said county as his residence, and that he intended to return to said City of Chanute in said county, where his professional library and office have for years past been, just as soon as his official term of office should expire, and again.resume the practice of the law; that the principal office to which the plaintiff was appointed and which he accepted in 1878 is kept and maintained in the City and County of Leavenworth in said State, by order of the government of the United States; that the same has been kept and maintained in said City and County of Leavenworth by reason of such order; that the plaintiff in the discharge of his official duties has been compelled to spend his time chiefly in said City of Leavenworth; that at the time of the commencement of this action he was occupying private sleeping apartments in said City of Leavenworth, and when not engaged in official or other business at other places, he boarded at some public house in said city; that the internal revenue district of the United States for the State of Kansas for which the plaintiff was appointed Collector comprised the whole State of Kansas."

From the foregoing facts the court deduced the following conclusion of law:

"2. That plaintiff for more than one year next preceding the filing of his petition herein was and now is a resident of the County of Neosho and the State of Kansas."

The court also found that for more than sixteen years last past the plaintiff has been an actual resident in good faith of the State of Kansas. Said sections 54 and 640 read as follows:

"Sec. 54. An action for a divorce may be brought in the county in which the plaintiff is an actual resident at the time of filing the petition.”

"Sec. 640. The plaintiff in an action for divorce must have been an actual resident in good faith of the state, for one year next preceding the filing of the petition, an ́l a resident of the county in which the action is brought at the time the petition is filed."

We think the foregoing facts as found by the court below are sustained by evidence. There is also one or two other facts which we might state in this connection: About November 1, 1882, the plaintiff, Carpenter, rented a furnished house in the City of Leavenworth, ant from November 9, 1882, up to December 29, 1882 he with his wife and one or more servant, residing in such house and kept house. But his law library, with some other property, has all the time remained at Chanute. The plaintiff in error, defen laat below, first made her objections to the jurisdiction of the trial court by inserting such objections in her answer to the plaintiff's petition, which she fi ed in answer to merits of the action. For this reason, the defendant in error, plaintiff below, claims that the defendant below waived all objection to the jurisdiction of the court, and cited Meixell v. Kirkpatrick, 29 Kas. 679, CS3 and cases there cited. Th