Pending the appeal to the Supreme Court, an application similar to the one now before the surrogate was made, and was denied upon the ground that the preservation of the estate at that time did not require the issuance of letters to the excutors. As I have already said on another application in this same matter, if the facts which have developcd subsequent to the former application had been foreseen, the motion would not have been denied.

Without going in detail into the reasons which lead to the opinion that the preservation of the estate requires the issuance of letters testamentary, it is sufficient to say that the facts set forth in the Loving papers show that the securities which comprise a very large portion of the estate of the decedent are of such a fluctuating and uncertain market value as to make it extremely hazardous to tie up their disposition until the determination of the appeal to the Court of Appeals.

If this court should order the temporary administrator to dispose of these securities, an investment of the proceeds would be necessary in order to preserve the estate from loss.

The discretion to invest is confided to the executors. It is not a power vested in the temporary administrator, and if it were it could only be exercised under the direction of the surrogate, with the result that the surrogate would be the practical executor of the estate, which I do not think the law contemplates, and which result I think the legislature intended to obviate by section 2582 of the Code.

Having arrived at the opinion that the preservation of the estate requires the issuance of letters testamentary, the only question to be considered is as to the court's power to do so under the cir

it might be argued that section 2582 was limited to appeals from the Surrogate's Court to the Supreme Court.

But this construction cannot be given in view of the history of the section. By chapter 603, Laws of 1871, it was provided: "Section 1. Appeals, when taken from the decree or decision of the Surrogate's Court declaring the validity of the will and admitting the same to probate, shall not stay the issuance of letters testamentary to the executors if, in the opinion of the surrogate, the protection and preservation of the estate of the deceased require the issuing of such letters," etc. * *

Sec. 2. Such appeals shall have preference for hearing in the Supreme Court and in the Court of Appeals in the same way as is now prescribed by law in cases where the issuing of letters testamentary is stayed."

This statute clearly includes appeals to the Court of Appeals, as well as appeals to the Supreme Court. The words such appeals" in the second section show that the appeals referred to in the first section include appeals to the Court of Appeals.

When the legislature adopted the first part of the Code of Civil Procedure they provided for preferred and deferred causes in article 2 of title 6. chapter 8, and by subdivision 5 of section 791 of that article incorporated substantially section 2 of chapter 603 of the Laws of 1871, and at the same time repealed said section 2 of the 1871 statute. When the legislature adopted the last nine chapters of the Code in 1880, section 1 of chapter 603. Laws of 1871, was incorporated in section 2582 of the Code in substantially the same language.

The difference in language does not alter in any way the meaning of the provisions. The use of the word "appeals " in the law of 1871 has exactly the same meaning as the words an appeal" as found in section 2582.

In construing codified statutes we are not to be governed by the same rules in respect to the position and association in which we find the doubtful section as we would be if the whole article was the original enactment of the legislature upon the subject.

So in construing the Code and determining the intention of the legislature we must go back to the reasons which existed for the adoption of the original law.

As I have said, the original law clearly applied to appeals to the Court of Appeals. The object of the statute is too obvious to require discussion. The legislature did not intend to permit loss to estates consequent upon the delays resulting in the hearing and determination of appeals.

The reason for the legislative relief applies with equal if not greater force to appeals to the Court of Appeals as it does to appeals to the Appellate Division. Since the statute of 1871 there has been

no other provision of law than the Code section which would give relief in such cases.

The position of the contestant is that at any time until an appeal to the Court of Appeals had been taken the surrogate has power to issue limited letters testamentary, but the moment an appeal to that court is taken the power ceases.

Before such an unreasonable construction can be adopted something more than the position of section 2582 in the Code of Procedure must be shown.

The conclusion reached in regard to section 2582 seems to be in harmony with the intention of the revisers. Mr. Throop, in his notes to the section, refers to it as follows:

"L. 1871, ch. 605, section I, amended by extending the rule to decrees granting letters, and by restricting the prohibition to sell real property, to a sale pursuant to directions contained in the will. Apparently this statute did not prohibit selling real property by direction of the surrogate, and paying creditors, although in those respects it is obscure. The amendments remove this obscurity, and extended the scope of the statute."

An examination of the authorities fails to disclose any case holding that the entire article 4 relates to appeals to the Supreme Court only. Several of the sections have been held to apply enly to appeals to the Supreme Court. (Matter of Ross, 87 N. Y. 514: Hewlett v. Elmer, 103 N. Y. 156; Matter of Smith, 96 N. Y. 661.) But none of the cases determine that article 4 relates solely to appeals to the Supreme Court. It cannot be argued from any of these cases that because other sections of the same article apply only to the. Supreme Court, section 2582 applies only to such appeals.

An order may be entered reciting that, in the opinion of the surrogate, the preservation of the estate requires that letters should issue.

AN IMPORTANT BANKRUPTCY DECISION.

OF

F extraordinary importance is the decision which Judge A. C. Coxe handed down, on the 20th inst., in the case of Edward A. Peck, grocer, of this city, says the Albany Argus. In his decision, Judge Coxe, of the United States Circuit Court, holds that all judgments and levies of the State courts are null and void so far as they relate to the property of a bankrupt, if recovered within four months prior to the filing of a petition in bankruptcy either by or against him. Judge Coxe also holds that all creditors of a bankrupt are equal.

It is the first time that the question at issue has been decided in this district, although there have been decisions in other districts, some holding one way, some another. Judge Thomas, of Brooklyn. has held that only when a petition is filed against

a bankrupt do the judgments fail. Judge Coxe declares in his decision that it makes no difference whether one goes into bankruptcy voluntarily or involuntarily, judgments recovered within four months prior to the filing of a petition in bankruptcy are null and void.

It was brought out in the argument of the case that Edward A. Peck filed his petition in bankruptcy on December 15. During the first week of December, Randall J. Le Boeuf, on behalf of William L. Clute, procured a judgment against Peck. City Court Marshal Frank Griffin made a levy on the goods in Peck's store on the same day that Peck filed his petition. Because of this petition Referee Lansing, on motion of an attorney for another creditor, granted a stay pending a motion to restrain a sale of property in the interest of Clute and other judgment creditors. Peck apparently wanted an equal distribution. Isadore Wachsman was appointed trustee for the creditors, and demanded possession of the goods. The case was argued before Judge Coxe, and his decision will have the effect of putting Clute on the same basis as the other judgment creditors. All creditors share equally, regardless of whether they have judgments, the court holding, to use its own phrase, that equality is equity.

EFFECT OF NATURALIZATION ON

MARRIAGE.

N important question of private international

law was decided last week by the house of lords in the case of De Nicols v. Curlier. Shortly stated, the facts were these: A Frenchman was married in 1854 to a Frenchwoman in France without any marriage contract or instrument in writing. They came to England in 1863, and lived there together until the husband's death in 1897. The husband, who had become a naturalized British subject in 1865, left a will by which he disposed of a large fortune which he had acquired in business in England since the marriage, and the question was raised by an originating summons whether the change of domicil which had taken place after the marriage altered the legal position of the parties in reference to property. Under French law, where there is no ante-nuptial contract the rights of the parties to the marriage are subject to the system of community of goods as defined by the French Civil Code, which applies to movable property belonging to either of the parties at the time of the marriage, or acquired by either of them during the marriage. The Court of Appeal came to the conclusion, apparently with some reluctance, that they were bound by a decision of the house of lords in Lashley v. Hog (4 Paton, 581), and held (reversing the decision of Mr. Justice Kekewich) that the effect of the change of domicil was to alter the rights of the

parties with respect to the movable property, and that as the parties were domiciled in England at the time of the husband's death, their rights were governed by English and not by French law. The house of lords have now reversed this decision, and have held that the rights which the wife aacquired under French law by the marriage

were not affected by the husband's subsequent change of domicil. Lashley v. Hog was distinguished on the ground that, whereas by Scotch law (with which that case was concerned) a wife acquires by the fact of marriage no proprietary rights whatever, but merely an expectation of sharing, on his death, in the distribution of his property if he has not already disposed of it, under French law she acquires by virtue of the marriage a real proprietary right, with which the husband cannot interfere. The question as to the effect of a change of domicil after marriage on the rights of husband and wife with respect to movables, in the absence of any marriage contract or settlement. has hitherto been regarded by writers on private international law as an open one (see Dicey's "Conflict of Laws," p. 648), and it is satisfactory to know that the view which has found most favor, and which appears to be in accordance with common sense, is now declared to be correct. Law Journal (London).

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The original lines by Bishop Doane on the old and new century, published in the last issue, were furnished by one of the guests to whom we as well as our readers are indebted for the pleasure of there perusal.

English Notes.

The youngest son of Lord Russell of Killowen, a lieutenant in the artillery, has been called out for active service. He has left for the Cape.

By the death of Mr. Sergeant Spinks, who was the last survivor at the bar of the ancient Order of the Coif, the number of surviving sergeants is reduced to two. Lord Field and Sir Nathaniel Lindley both became sergeants in 1875, but to the latter belongs the distinction of being the last sergeant created.

The legal profession has reason to be proud of the readiness with which the members of the Inns of Court Rifle Corps have responded to the invitation to the volunteers to join the queen's forces in South Africa. Over one hundred members of the corps have volunteered for service at the front. A fact scarcely less gratifying is that some sixty recruits have joined the corps during the present week. — Law Journal (London).

An Irish bookseller, previous to a trial in which he was the defendant, was informed by his counsel that if there were any of the jury to whom he had lenge them. "Faith, and so I will," replied he: any personal objections, he might legally chal"if they do not bring me off handsomely I will challenge every man of them."

A well-known judge often relieved his judicial wisdom with a touch of humor. One day during the trial of a case, Mr. Gunn was a witness in the box, and, as he hesitated a good deal and seemed unwilling, after much persistent questioning, to tell what he knew, the judge said to him: “Come, Mr. Gunn, don't hang fire." After the examination had closed the bar was convulsed by the judge adding: "Mr. Gunn, you can go off; you are discharged."

Literary Notes.

The late Sir Henry Jenkyns, K. C. B., had almost completed a book on British Jurisdiction Outside the United Kingdom." It will be published at an early date by the Clarendon Press, under the supervision of Sir Courtnay P. Ilbert.

The Living Age promises a paper on Robert Louis Stevenson's Letters, by Augustine Birrell, in its issue for February 10. There could scarcely be a more delightful combination of author and subject.

Hon. Thomas B. Reed, in writing of the modern trust, does not seem to regard it either as an octopus" or a bugaboo. " My notion," says he, is that while Providence and the higher laws which really govern the universe are, in men's talk, much inferior to the Revised Statutes before they are enacted, they are always found to be quite superior to them after they are enacted. In fact, nature abhors a monopoly as much as it does a vacuum." Mr. Reed's paper on Monopolies which is to appear in the Saturday Evening Post of February 10 is a suggestive discussion of the methods of vast corporations. It discusses in a striking and original manner one of the most pressing questions of the day.