been said is, perhaps, sufficient to indicate that in New York the older legal conception of a perpetuity has survived in practice. That this conception may be carried to extreme lengths, probably beyond the intention of the framers of the Revised Statutes, a recent case only serves to show. But, as the doctrine of that case may yet have "its wings clipped," as the learned Mr. Challis expressed it, when it comes before the final appellate tribunal, it is unnecessary to discuss it in this connection. It is well understood that, by virtue of a provision of the statute which forbids alienation by a trustee, certain express trusts in New York are within the rule against perpetuities. In Mills v. Mills,3 the case in question, the declared trust certainly contravened this rule. But, by virtue of a recent statute, whenever a remainderman assigns or releases his interest to a cestui que trust entitled to the income and profits of an intervening trust estate, the cestui que trust may now put an end to the trust. In view of this statute, the Court held, in Mills v. Mills, in substance, that the trust was without the rule against perpetuities, because the remainderman and the cestui que trust were capable, eo instanti, of destroying the trust. The trust could not, therefore, be said to suspend the power of alienation.

The Revised Statutes abolished all the old distinctions between uses, executory, devises and legal limitations". Thereafter all instruments of conveyance were subject to the same rules and if a future estate did not violate the revised rule against perpetuities or the new rules regulating the limitations of successive life estates or estates pur autre vie, it could hardly fail for technical reasons. No future estate could be avoided on the ground of the impossibility of the contingency on which it was to take effect. Subject to the revised rule against perpetuities only, freeholds might be created to commence in futuro; contingent remainders might be limited on terms of years and a fee limited on a

1 Mills v. Mills, 28 Misc., 633; affd., 50 App. Div., 221.

2 Murphy v. Whitney, 140 N. Y., 541, 546.

3 50 App. Div., 221.

4 Chap. 452, N. Y. Laws of 1893.

5 1 R. S. 726, Sec. 42.

61 R. S. 724, Sec. 26.

fee1. These provisions of the statute were so destructive of all the principles formerly regulating the limitation of future estates that they may be said to have created a new science, were it not for the retention of the common law in all cases not expressly provided for by the statute. To harmonize these new rules with the old system of conveyancing has not been without difficulties in practice. But its solution has been satisfactory on the whole and has resulted in a system of conveyancing certainly simpler than that which it superseded. Whether it would not have been desirable to go still farther and abrogate the old law entirely, is the only question which troubles those who have given much attention to the plan and the scope of the Revised Statutes concerning real property.

ROBERT LUDLOW FOWLER.

1

1 1 R. S. 724, Sec. 24.

THE

OPINION EVIDENCE.

HERE are few questions in practice more perplexing to courts or that produce more conflict of views than the admissibility of opinions as evidence in the trial of issues of fact. The general principle that witnesses must testify to facts and not inferences or opinions is so deeply rooted and grounded in the judicial and professional mind that it is very difficult sometimes to recognize the exceptions to the rule or to apply them to particular cases. These exceptions as they were outlined and understood in the ancient common law have been much enlarged in our day, or at least applied in practice with greater freedom and liberality. The growth of knowledge and the vast progress attained in every field of human activity must always require the application by the courts of old principles to new conditions. Amid the restless activity and marvelous progress of these days in every department of human exertion, the methods of administering justice and ascertaining truth cannot remain stationary. Knowledge is power and its all-pervading influence must necessarily affect rules for the determination of controverted questions of fact. It cannot be denied that scientific, mechanical and professional knowledge, or even superior knowledge and experience in some matters outside the range of what might be properly called scientific inquiry, are helpful to the common mind in the investigation of matters of fact in judicial proceedings. The rule which permits the courts to make use of such instrumentalities in the administration of justice is open to such great abuses that all opinion or expert testimony has been much discredited on account of the unseemly and loquacious wrangling which results from its introduction, and the tedious and unprofitable length of trials in which it is a feature. But, after all, the objections that have been so often and so forcibly urged to this kind of evidence apply in a great measure to the narration of facts and all human testimony. The witness who testifies to a fact may be ignorant, or interested, or willfully false or mistaken. It is entirely safe to assert that justice is

quite as frequently perverted by a false, mistaken or colored statement of facts from witnesses as it is in consequence of all the objections that have been or can be urged against the opinions of experts, and so, notwithstanding the prejudices of the courts and the profession, and the unfavorable criticism of the public, it may be said the practice of bringing to the aid of the Court or jury expert knowledge of the process of ascertaining the truth concerning certain disputed questions of fact has grown rather than diminished. In this age the knowledge of experts, and, indeed, superior skill or experience, in any of the various walks of life count for much, and there is no good reason why courts should refuse to be aided by such means in the search for truth in proper cases any more than individuals. The fact that testimony of this character is sometimes used to prevent or delay justice, or to protract the investigation, is no argument against its usefulness in proper cases and within proper limitations. The circumstance that the rule has been abused in cases where medical experts or experts in handwriting are called, does not prove that it ought to be abolished or that on the whole it is not a useful one.

It has been often suggested that witnesses who appear as experts to testify to opinions should be appointed by the courts or some public authority. Any safeguards that would secure the independence and impartiality of the witness would, of course, be desirable, but the scheme of creating a body of official experts to be called in when needed would seem to be impracticable. It would, of course, be impossible to select any person with sufficient knowledge of the several professions or vocations in life from which experts may be called who would be qualified. to testify in all cases, and, hence, the selection would have to be made for each particular case. It would be very difficult, if not impossible, to formulate any plan for the appointment of experts by the courts or any other public authority that would in practice be found convenient or even practicable. On the whole, it would seem to be wiser to leave the selection of such witnesses to the parties themselves, and the rules under which such testimony is admissible, as well as its real weight and value in all cases, to the good sense and judgment of the courts. An attempt to regulate the practice

in this respect by statute, or any arbitrary rule, would be more likely to aggravate whatever evils now exist than to improve the law. It would be entirely practicable, however, to abolish an evil involved in the practice to which much of the scandal and adverse criticism, of which testimony of this kind is the subject may be attributed. The enormous fees which experts have been permitted to charge for their services as witnesses and which the parties to the litigation are willing to pay them, not only furnishes a strong temptation to the witness to consume valuable time and to becloud the question at issue with theories and suggestions that tend rather to obscure than to bring out the truth, but it destroys the value of their testimony in the minds of the jury. When the compensation is regulated by law and reduced to such moderate limits as to remove the temptation suggested, the professional expert will not appear so frequently, will consume much less time than now, and his opinion will have more weight with the jury. There is something unseemly and scandalous in the present practice, to which not only private litigants, but even public officers resort, of hiring experts by contract, express or implied, to testify in civil and criminal cases. There is no more reason why a person who happens to possess special knowledge upon some subject should not be compelled by the process of the Court to appear and testify in aid of the administration of justice, than there is for relieving him from the duty of serving as a juror, or any other duty which the law enjoins upon the citizen. In this respect the law in its present condition would be greatly improved by judicious legislation.

The general rules under which the opinions of witnesses may be received are now quite well settled and understood. In the first place it must be shown that the witness is quali. fied by learning, experience or observation to express an opinion upon the question at issue. The qualification of the witness in such cases presents a preliminary question of fact for the determination of the trial Court and when determined upon some evidence is not ordinarily open to review upon appeal.1 The witness may

'Nelson v. Sun Mutual Insurance Co., 71 N. Y., 454.