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He convinced some of the Judges who had acquiesced in the decision of Sheridan vs. House, but Judge Woodruff adhered to his opinion. Unfortunately for the Jackson heirs, Judge Lott, for the first and only time in his life, changed his mind, although it was he who had written the opinion in the Court below that the remainder was con. tingent. He concurred with Judge Woodruff in holding the interest of the children a vested remainder. The Chief Judge and Judges Daniels and Grover dissented. Judge Grover presents the argument in favor of the proposition that the remainder was contingent most clearly, and there is no doubt that the weight of the judicial authority was with the dissenting opinion. Indeed, Judge Grover always said that the reason why the People of the State of New York abolished the old Court of Appeals and created the new Court—the decisions of which are reported in the series beginning 43 N. Y.- was that the old Court did not know the difference between a vested and a contingent remainder.

Not daunted by the defeat in Moore vs. Littell, and believing that, in a case involving the validity of the judgment sales, the new Court would overrule the decision of their predecessors as to the remainder, the case of House vs. Jackson was presented to the new Court in April, 1872. The writer of this article has very good reason to know that the Judges of the new Court of Appeals were of an opinion that if the question had been res nova, they would have held the remainder to be contingent.1

In short, they agreed with Judge Grover. But as the decision in the pending case was on the same title as that of Moore vs. Littell, they felt constrained to follow that decision, and carried it out to its logical conclusion. If the remainder was vested, the life estate would merge in this, when it was conveyed to the owner of the remainder. He thereupon would become seized of a present estate in fee, in which his wife would be entitled to dower, and so it was held in House vs. Jackson.

The Court determined the last of the Jackson cases

In Purdy v. Hayt, 92 N. Y. 447, 454, a remainder similar to that limited in the Jackson deed, was held to be contingent.

2 50 N. Y. 161.

in Jackson vs. Littell.1 There a title derived under the foreclosure of one of the Jackson mortgages came under consideration. The party claiming under it maintained that the mortgagor was estopped to deny the mortgagee's title. But the Court held that if the mortgage contained no covenant of warranty, and the relation of the mortgagor and mortgagee had been extinguished by foreclosure, the mortgagor was not estopped from acquiring and claiming against the mortgagee under a paramount title.

Two ancient proverbs seem to be the moral for the lawyer who studies the history of the Jackson litigation, “Put your best foot forward.” “Let well enough alone."


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ON March 2, 1901, the following Joint Resolution was

v enacted as an Amendment to the Army Appropriation Act:

That in fulfillment of the declaration contained in the Joint Resolution approved April 20, 1898, entitled, “ For the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect,” the President is hereby authorized to "leave the government and control of the island of Cuba to its people " so soon as a government shall have been established in said island under a constitution1 which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, substantially as follows:

1. That the government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgment in or control over any portion of said island.

2. That said government shall not assume or contract any public debt, to pay the interest upon which, and to make reasonable sinking fund provision for the ultimate discharge of which, the ordinary revenues of the island, after defraying the current expenses of government, shall be in adequate.

3. That the government of Cuba consents that the

In the following discussion no account is taken of the work of the Constitutional Convention in Cuba, because the Convention being still in session, the Constitution it has drafted cannot be considered as a completed instrument.

United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the United States, now to be assumed and undertaken by the government of Cuba.

4. That all acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected.

5. That the government of Cuba will execute, and as far as necessary extend, the plans already devised or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and "infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the southern ports of the United States and the people residing therein.

6. That the Isle of Pines shall be omitted from the proposed constitutional boundaries of Cuba, the title thereto being left to future adjustment by treaty.

7. That to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations at certain specified points, to be agreed upon with the President of the United States.

8. That by way of further assurance the government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.

The declaration contained in the Joint Resolution of April 20, 1898, reads as follows:

Fourth-That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction or control over said island, except for the pacification thereof, and asserts its determination when that is accomplished to leave the government and control of the island to its people.



Before considering the Resolution of 1901 in detail, it is important to determine whether it violates the declaration of the Resolution of 1898 by the mere fact that it imposes conditions precedent to our evacuation of Cuba.

Some would dismiss this question altogether, and annex Cuba forthwith. It is argued that the declaration is not binding because it was made in a moment of excitement, or because it was never a real contract, but at best a promise without consideration, or because the Cubans are unfit to govern themselves. Less repulsive, because of its candor, is the masterful assertion that the United States need Cuba in their business, and do not intend to be balked by a promise. The corrective of these shifty and cynical evasions is found in the assurance that the declaration of 1898 is as binding on the conscience of the American people as though it were embodied formally in a treaty; and, in fact, it is substantially recognized in the Treaty of Paris. Altered condi. tions, violation of reciprocal engagements, impossibility of performance, have now and again been urged in justification or apology for disregarding international pledges. None of these pleas will avail here. The breaking of our pledge to Cuba would involve a gross breach of national faith that must at some time, in some way, bring retribution far outweighing any present material gains arising from a forcible annexation. To the flippant notion that there is really no moral law for nations, I oppose an admirable statement of the doctrine of national responsibility lately made by one of Great Britain's foremost jurists. “ All my life,” says Lord Hobhouse in a private letter, “I have insisted, with general acceptance one fancies, that the code of morals and justice is the same between nations as between individuals; with the addition that the nation which never dies is even more certain to reap the fruits of conduct, whether bitter or sweet, than the individual who may die before the fruits ripen."

The United States can honorably recall their promise only upon a request for immediate annexation preferred by the Cuban people. If this overture shall be made, the propriety of incorporating the island in the United States will be for the first time fairly presented for discussion.

While the declaration of 1898 should be respected as a binding promise, there is no merit either in the complaint

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