before a court and jury, than would arise from the want of any legal means of selecting witnesses from the numerous class of professional men who differ as much in their relative merits as many of them do from laymen." Age also is provable by opinion. For example, on an indictment for selling liquor to a minor the opinion of a witness that the minor's appearance was calculated to produce the belief that he had attained his majority is competent : Marshall v. State, 49 Ala. 21. And the plea of infancy being set up to an action on a contract, the opinions of witnesses that from his appearance they should take the defendant to have been of legal age at the time, are relevant: Morse v. State, 6 Conn. 9; Benson v. McFadden, 50 Ind. 431. Drunkenness alleged to exist in a person at a certain time is provable by opinion. In Dimick v. Downs, 82 Ill. 570, in an action for assault and battery it was contended that the plaintiff was intoxicated. The opinion of a witness to this effect was admitted. "Whether a person," said the court, "is nervous and excited or calm, or whether drunk or sober, are facts patent to the observation of all, and their comprehension requires no peculiar scientific knowledge. In Choice v. State, 31 Ga. 424, on a trial for murder the opinions of witnesses that when they saw the prisoner, shortly after the crime," he appeared to be drinking" were received. Said the court, 66 It would seem rather captious to object to the statements of the witnesses that the prisoner appeared to be drinking. Such expressions, both in ordinary life and in the courts, convey to the mind with sufficient certainty, the condition of a person, so as to enable one to pronounce a decision therein with reasonable assurance of the truth. Really no other rule is practicable; if the witness must be confined to a simple narration of facts, how the person leered or grinned, how he winked his eyes or squinted, how he wagged his head, &c., all of which drunken men do, you shut out not only the ordinary, but the best mode of obtaining truth." In an Illinois case (City of Aurora v. Hillman, 90 Ill. 66) it was said: "Intoxication or drunkenness are facts which may be proven as other facts are proven. A witness by observation and by the exercise of his perceptive faculties, his five senses, can learn and know facts, and such facts he may state. He would not be confined to a detail of the combination of minute appearances that have enabled him to ascertain the facts of intoxication. The details of conduct, attitude, gesture, words, tone and expression of eye and face may be stated by him, or he may state the fact of intoxication, a fact which he can ascertain by personal observation, as he ascertains other facts. So also a witness may state whether or not a person had the appearance of being intoxicated, and such statement of appearance would be the statement of a fact. Facts which are latent in themselves and only discoverable by way of appearances, more or less symptomatic of the existence of the main fact, may from their very nature be shown by the opinions of witnesses as to the existence of such appearances or symptoms. Sanity, intoxication, the state of health or of the affections, are facts of this character. And see People v. Eastwood, 14 N. Y. 562; State v. Pike, 49 N. H. 407; State v. Hurford, 47 Iowa 16; Castner v. Sliker, 33 N. J. L. 96; Pierce v. State, 53 Ga. 365; Pierce v. Pierce, 38 Mich. 412. But by far the largest class of cases in which evidence of opinion has been received is that where the sanity or insanity of a person is at issue. As a general and well-founded rule persons not medical men cannot give their opinions as to the existence, nature or extent of disease. An exception to this rule was early made in the case of subscribing witnesses to a will who are allowed to be called upon for their opinions as to the sanity of the testator at the time they executed it. Afterwards, this exception was extended and the rule established in England that one not an expert may give an opinion founded upon observation that a certain person is sane or insane. This rule is now adopted in the courts of all the states except those of Massachusetts, Maine, New Hampshire and Texas: Morse v. Crawford, 17 Vt. 502; Clifford v. Richardson, 18 Vt. 620; Crane v. Northfield, 33 Id. 124; Dunham's Appeal, 27 Conn. 192; Clark v. Fisher, 1 Paige 171; Sears v. Shafer, 1 Barb. 408; Delafield v. Parish, 25 Id. 38; Stewart v. Lispenard, 26 Wend. 308; Trumbull v. Gibbons, 22 N. J. L. 136; Whitenack v. Stryker, 2 N. J. Eq. 8; Garrison v. Garrison, 15 Id. 266; Irish v. Smith, 8 S. & R. 573 (11 Am. Dec. 648); Grabill v. Barr, 5 Penn. St. 441; Brooke v. Townshend, 7 Gill 10; Dorsey v. Warfield, 7 Md. 65; Burton v. Scott, 3 Rand. 399; Heyward v. Hazard, 1 Bay 335; Potts v. House, 6 Ga. 324; Walker v. Walker, 14 Id. 242; Norris v. State, 16 Ala. 776; Powell v. State, 25 Id. 21; Kelly v. McGuire, 15 Ark. 557; State v. Gardiner, Wright 392; Baldwin v. State, 12 Mo. 223; Doe v. Reagan, 5 Blackf. 217; State v. Felter, 25 Iowa 67; White v. Bailey, 10 Mich. 155; Harrison v. Rowan, 3 Wash. C. C. 580; Dennis v. Weekes, 51 Ga. 24; Dove v. State, 3 Heisk. 348; Ins. Co. v. Rodel, 5 Otto 233; State v. Ketchey, 70 N. C. 621; O'Brien v. People, 48 Barb. 275; Deshon v. Merchants' Bank, 8 Bosw. 461; State v. Hayden, 51 Vt. 296; Fountain v. Brown, 38 Ala. 72; Gardiner v. Gardiner, 34 N. Y. 155; Choice v. State, 31 Ga. 424; Haut v. Haut, 3 B. Mon. 577; State v. Erb, 74 Mo. 199; Robinson v. Adams, 62 Me. 369. Evidence of opinion is admissible also on another principle, viz., that the matters testified to are matters of common and general knowledge. In Barnes v. Ingalls, 39 Ala. 193, the question arose as to whether a photograph had been well executed. The opinions of witnesses that certain photographs, executed for them by the same person, were well executed, were admitted, although the witnesses did not claim to be experts or to have any special knowledge on the subject. Said the court: "One of the facts to which they testified was that certain portraits painted for them by the plaintiff were faithful likenesses. A most important requisite of a good portrait is that it shall be a correct likeness of the original; and although only experts may be competent to decide whether it is well executed in other respects, the question whether a portrait is like the person for whom it was intended, is one which it requires no special skill in, or knowledge of the art of painting to determine. The immediate family of the person represented, or his most intimate friends, are indeed, as a general rule, the best judges as to whether the artist has succeeded in achieving a faithful likeness. To eyes, sharpened by constant and intimate association with the original, defects will be visible, and points of resemblance will appear which would escape the observation of the practical critics. We should think the painter had finished the likeness of a mother very indifferently if it did not bring home to her children traits of undefinable expression, which had escaped every eye but those of familiar affection. The fact of likeness or resemblance is one open to the observation of the senses, and no peculiar skill is requisite to qualify one to testify to it. Evidence on such a question stands upon the same footing as evidence of handwriting, the value of property, the identity of an individual and the like, and we think that the testimony of witnesses that pictures which the plaintiff, while in the defendant's employment, had executed for them were good likenesses, was competent evidence in the case." So in a Wisconsin case (Curtis v. Chicago, &c., R. R. Co., 18 Wis. 312), the question was as to the state of the weather on a certain day, and whether it was cold enough to freeze vegetables contained in a building. The opinion of an ordinary witness was received. "It is true," said the court, "that, in general, witnesses are not allowed to give their opinions except upon questions of science, trade and some others of the same nature, and then they must be adepts. But upon a matter of such common experience as the state of the weather, whether cold or warm, and the effects likely to be produced by it upon fruit or vegetables when improperly exposed, we think the evidence savors more of facts than of conjecture, more of knowledge than of mere opinion. It is like the opinion of experienced witnesses upon questions of value, which is always allowable." And see Ohio, &c., Railway Co. v. Irvin, 27 Ill. 179; Com. v. Timothy, 8 Gray 480; Greenfield v. People, 85 N. Y. 75. So in Stone v. Frost, the opinions of ordinary witnesses were admitted on the question whether certain plants were dead when received, but were rejected on the question as to what killed them. Said the court: "The fact as to whether a root or other vegetable substance is dead or not is matter of such common observation and experience that it does not require an expert to testify in regard to it. The same may be said in regard to the question whether a dead grape root has any marketable or other value. the question what had caused the killing of the roots, the evidence was all given by persons skilled in the matter, and was properly received." St. Louis, Mo. JOHN D. LAWSON. On In the Circuit Court of Cook County, Illinois. KEHOE v. KEHOE. The doctrine of the English courts as to superstitious uses has never been adopted in this country and is inconsistent with the religious liberty guaranteed by our constitutions. A deed of personal property was made a few weeks prior to the donor's decease upon an oral trust that it should be devoted to the purpose of procuring masses to be said for his soul. Upon a bill filed by the trustee against the legal representatives of the donor to obtain the instructions of the court as to complainant's duty, Held, that the trust was valid and should be performed. R. W. Clifford, for complainant. A. Tripp, for respondent. The opinion of the court was delivered by TULEY, J.-Richard J. Kehoe files his bill to obtain the instruction of the court as to his duty as trustee in reference to certain funds now remaining in his possession. John W. Kehoe, a few weeks prior to his decease, made a deed to complainant of certain personal property, upon oral directions or trusts, which were in substance, that the funds should be devoted to the purpose of procuring masses to be said for the soul of the said John W., and for the soul of his mother, now also deceased. The complainant is ready to carry out the wishes of the donor, but the defendants-who would take as legal representatives of the deceased, if no such disposition thereof had been made-contend that the trust is void because it is not wholly in writing; and if it is not void for that reason, that it is void because the funds were given for a superstitious purpose or use. The Statute of Frauds is relied upon to sustain the first objection, but as that statute does not embrace trusts as to personal property, but only as to realty, the point is not well taken. As to the second point the defendants contend that as our state has adopted the common law and statutes of England prior to 4th year of James I., excepting certain specified statutes concerning usury and frivolous suits (see Rev. Stat. ch. 28), the decisions of the English courts based upon the statute 1 Edward VI., holding that gifts or devises for procuring masses, &c., are void, as being for superstitious uses, will be followed by the courts of this country. Redfield, in his learned treatise on the law of wills, after stating the doctrine, as above, of the English courts, says: "We understand this to be the general view of the law in the American states:" 2 Redfield, sect. 36, ch. 5, &c.; Story's Eq., sect. 1168. Other text writers take the opposite view, and hold that the American courts should not follow the English courts in their decisions as to what are superstitious uses: Perry on Trusts, sect. 715; Hill on Trustees, p. 455 n.; Williams Executors, p. 1055, note 8. No American decisions of courts of last resort have been cited by any of the text writers, and the researches of counsel in this case, as well as my own, have failed to find any. How did this doctrine of superstitious uses originate, and upon what is it founded? Two English statutes were passed about the period of the reformnation, concerning the disposition of property for uses then considered superstitious. The first was that of 23 Henry VIII. [ch. 10], A. D. 1532, which was about four years after the clergy had acknowledged Henry VIII. to be the supreme head on earth of the church, which provided that all uses ther after declared of land (except VOL. XXXI.-83 leaseholds of twenty years) to the intent to have perpetual, or the continual service of a priest, or other like uses, should be void, and the other was 1st Edward VI., ch. 14, A. D. 1547, which declared the king entitled to all real and certain specified personal property theretofore disposed of for the perpetual finding of a priest or maintenance of any anniversary or orbit, or other like thing, or any light or lamp at any church or chapel. These statutes were passed at a very troubled period of English history in religious matters. Henry VIII. had just severed the connection between the English church and the Pope at Rome, and had united to the kingly power that of the head of the church. While these two statutes were aimed at the practices of the Catholic church, yet the Catholic who denied the supremacy of the king as the head of the church, and the non-conformist, were alike persecuted, not only by religious edicts, but by all the power that parliament could exercise in favor of the newly-established church. It will be noticed that there was no statute making dispositions of personal property to such uses void; that while the 23d of Henry VIII. was prospective, it only applied to assurances of land to churches and chapels, and that the 1st Edward VI. was limited to dispositions of property, real and personal, theretofore made. Nevertheless, the English chancellors, many of the earlier of whom were ecclesiastics, and the English judges, being always adherents of the established church, and undoubtedly imbued with that religious feeling which had induced such legislation, easily found in the absence of any express statute, what they termed "a public policy" or "a policy of the law," which enabled them to declare absolutely void all dispositions of property, whether real or personal, given or devised for the uses specified in the two statutes-or for uses which they deemed to come within the period of the statutes-such as "legacies to priests to pray for the soul of the donor." "For the bringing up of poor children in the Roman Catholic faith," &c.: Attorney-General v. Powers, 1 B. & B. 145; West v. Shuttleworth, 2 M. & K. 684; In re Blundell's Trust, 31 L. J. Eq. 52; Cary v. Abbott, 7 Vesey 490; Rex v. Lady Portington, 1 Sal. 162, i 4 Wm. & Mary, 5 Russell 289. When judges undertake to decide cases not upon the law, but upon what they consider "public policy" or the "policy of the This is strikingly law." they stand upon very slippery ground. exemplified by the strange inconsistency of the English decisions. |