notice, the evidence should be clear and convincing that it was
given as required by law, before the tax title can be held to be para-
mount. Ib.

TEXAS.

See LOCAL Law, 2.

TRUST.

A trust deed, covering real estate, provided that in the case of a sale by
the trustee, at public auction, upon advertisement, all costs, charges
and expenses of such advertisement, sale and conveyance, including
commissions, such as were at the time of the sale allowed by the laws.
of Illinois to sheriffs on sale of real estate on execution, should be paid
out of the proceeds. Held, (1) that this provision did not impose upon
the borrower the burden of paying to a lender a solicitor's fee where a
suit was brought for foreclosure; (2) that the commissions referred to
in the deed are allowed only where the property is sold, upon adver-
tisement, by the trustee, without suit. Fowler v. Equitable Trust Co.,
384.

See WILL.

TRUST SALE.
See TRUST.

USURY.

1. The question of usury, in a loan made in 1873 to a citizen of Illinois by
a Connecticut corporation - the loan being evidenced by notes of the
borrower payable in New York, and secured by mortgage upon real
estate in Illinois, is to be determined by the laws of the latter State
pursuant to its statute providing, in substance, that where any contract
or loan shall be made in Illinois, or between citizens of that State and
any other State or country, at a rate legal under the laws of Illinois,
it shall be lawful to make the principal and interest payable in any
other State or Territory, or in London, in which cases the contract or
loan shall be governed by the laws of Illinois, unaffected by the laws
of the State or country where the same shall be made payable.
Fowler v. Equitable Trust Co., 384.

2. It is settled doctrine in Illinois that the mere taking of interest in ad-
vance does not bring a loan within the prohibition against usury; but
whether that doctrine would apply where the loan was for such period
that the exaction by the lender of interest in advance would, at the
outset, absorb so much of the principal as to leave the borrower very
little of the amount agreed to be loaned to him is not decided. Ib.
3. A contract for the loan or forbearance of money at the highest legal
rate is not usury in Illinois, merely because the broker who obtains a
loan- but who has no legal or established connection with the lender
as agent and no arrangement with the lender in respect to compensa-

tion for his services - exacts and receives, in addition to the interest to be paid to the lender, commissions from the borrower. Ib. 4. If a corporation of another State, through one of its local agents in Illinois, negotiates a loan of money to a citizen of the latter State, at the highest rate allowed by its laws, and the agent charges the borrower, in addition, commissions for his services pursuant to a general arrangement made with the company, at the time he became agent, that he was to get pay for his services as agent in commissions from borrowers, such loan is usurious under the law of Illinois, although the company was not informed, in the particular case, that the agent exacted and received commissions from the borrower. lb.

5. In Illinois, when the contract of loan is usurious, the lender, suing the borrower for the balance due, can only recover the principal sum, diminished by applying as credits thereon all payments made on account of interest. In such cases, whatever the borrower pays on account of the loan goes as a credit on the principal sum. Ib.

6. A Connecticut corporation made in 1876 a loan of ten thousand dollars for five years at nine per cent to a citizen of Illinois, the loan being evidenced by note, secured by deed of trust on real estate in the latter State, providing that nothing contained in it should be so construed as to prevent a foreclosure by legal process, and that upon any foreclosure the corporation should recover in addition to the principal, interest and ordinary costs, a reasonable attorney's or solicitor's fee, not exceeding five per cent for the collection thereof. It was also stipulated in the deed, that the decree or order for foreclosure should direct and require that the expenses of such foreclosure and sale, including the fees of solicitor and counsel, be taxed by the court at a reasonable amount, and paid out of the proceeds of the sale. The highest rate allowed by the laws of Illinois at the time of the loan was ten per cent. The borrower paid the agent of the company a commission of $150 under such an arrangement as that referred to in the case of Fowler v. Equitable Trust Co., 141 U. S. 384. Held, (1) that the payment of these commissions to the company's agent did not make the contract usurious, because if that sum was added to the nine per cent stipulated to be paid, the total amount of the interest exacted was less than the highest rate then allowed by law; (2) the stipulation in the deed of trust providing for the payment by the borrower, in addition to ordinary costs, of a reasonable solicitor's fee, not exceeding five per cent, for collection in the event of a suit to foreclose, did not make the contract usurious under the law of Illinois. Fowler v. Equitable Trust Co., 411.

WILL.

A testator gave all his estate, real and personal, to his executors for the
term of twenty years, "in trust, and for the uses, objects and pur-
poses hereinafter mentioned," and authorized them to make leases not
extending beyond the twenty years, and to lend money on mortgage
for the same period; and, "after the expiration of the trust estate
vested in my executors and trustees for the term of twenty years after
my decease," devised and bequeathed one-fourth part of all his estate,
subject to the payment of debts and legacies, to his widow, one-fourth to
his daughter, one-fourth to his brother, and one-fourth to his nephew;
gave certain legacies and annuities to other persons; directed his exec-
utors to pay a certain part of the income to his brother "until the final
division of my estate, which shall take place at the end of twenty years
after my decease, and not sooner;" that no part of his estate should
"be sold, mortgaged (except for building) or in any manner encum-
bered, until the end of twenty years from and after my decease, when
it may be divided or sold for the purposes of making a division be-
tween my devisees as herein directed;" and also that, in the event of
any of the legatées or annuitants being alive at the end of the twenty
years, there should then be a division of all his estate, “anything
herein contained to the contrary notwithstanding; and in such case
my executors, in making division of the said estate, shall apportion
each legacy or annuity on the estate assigned to my devisees, who are
hereby charged with the payment of the same according to the appor-
tionment of my said executors;" and further provided as follows: “It
is my will that my trustees aforesaid shall pay the several gifts, lega-
cies, annuites and charges herein to the persons named in this will,
and that no creditors or assignees or purchasers shall be entitled to any
part of the bounty or bounties intended to be given by me herein for
the personal advantage of the persons named; and therefore it is my
will that, if either of the devisees or legatees named in my will shall
in any way or manner cease to be personally entitled to the legacy or
devise made by me for his or her benefit, the share intended for such
devisee or legatee shall go to his or her children, in the same manner
as if such child or children had actually inherited the same, and, in
the event of such person or persons having no children, then to my
daughter and her heirs." He also declared it to be his wish that W.,
one of his executors, should collect the rents and have the general
supervision during the twenty years; and further provided that the
share devised to his daughter should be conveyed at the expiration of
the twenty years, for her sole use, to three trustees to be chosen before
her marriage by herself and the trustees named in the will, and the
net income be paid to her personally for life, and the principal be con-
veyed after her death to her children or appointees; and that, in the
event of his wife's marrying again, the share devised to her should be
held by his trustees for her sole use. Held, (1) That the powers con-

ferred and the trusts imposed were annexed to the office of executors; and that they took the legal title in fee, to hold until they had divided the estate, or the proceeds of its sale, among the devisees of the residue. (2) That an equitable estate in fee in one fourth of the residue of the estate vested in the brother and the nephew, respectively, from the death of the testator. (3) That the limitation over, in case of alienation, was intended to apply to the residuary devisees, but was void because repugnant to the estates devised. (4) That by the law of Illinois such an equitable estate could not be taken, at law or in equity, for the debts of the owner. (5) That a conveyance thereof by such owner, in consideration of an agreement of the grantee to buy up outstanding judgments against the grantor, and to sell the interest conveyed and pay one-half of the net proceeds to the grantor's wife, no part of which agreement was performed by the grantee, gave him no right which a court of equity would enforce. (6) That these conclusions were not affected by the following facts: The daughter was married ten years after the death of the testator, having first, by indenture with the trustees named in the will, appointed them to be trustees for the benefit of herself and her children. Just before the end of twenty years from the testator's death, a mortgagee of all the real estate agreed with the trustees under the will to postpone payment of the principal and to reduce the rate of interest of the mortgage debt, provided the whole estate should continue to be managed by W.; and thereupon the testator's widow, brother, nephew, daughter and her husband, individually, and the widow, brother and W., as trustees of the daughter, made to W. a power of attorney, reciting that by the will the testator devised his whole estate in trust for the period of twenty years, which was about to expire, and upon the termination of that trust to the widow, brother, nephew and daughter in equal parts, and that it was deemed advantageous to the devisees, as well as to the mortgagee, that the estate should continue to be managed as a whole, and therefore authorizing W. to take possession, to collect rents, to pay taxes, debts against the estate, and expenses of repairs and management, and to sell and convey the whole or any part of the estate at his discretion. Potter v. Couch, 296.

WITNESS.

A court of the United States cannot order a plaintiff, in an action for an injury to the person, to submit to a surgical examination in advance of the trial. Union Pacific Railway Co. v. Botsford, 250. ·

WRIT OF ERROR.

See PRACTICE, 5.