Reuben Hyde Walworth. event contain a less number of columns in rear than it originally did in front. For as there were six original takers, if one of them died without issue, there could only be five to take that portion of the estate, even if the stepdaughter, or her children, was included in the class which was to take that share of the property. Correct architec tural taste would undoubtedly require that materials of the column which had fallen by the ravages of time should be used to strengthen the five re maining columns equally, instead of being added to four only, and leaving the 'fifth to its original dimensions. It must be recollected, however, that this testator did not construct the other parts of his temple according to strict architectural taste. For the columns of his first rows were of different diameters. And though they were all of the same height, from the bottom of the base to the top of the abacus, their proportions were different; the contingent remainders in fee to some of the grand children having the life estate of one parent for a base with an exterior support by a buttress of trustees, while the remainder to the children of John was based upon the lives of both of their par ents, supported by the same buttress as the others. The columns of his second row, constructed from the proceeds of his residuary real and personal estate, are, it is true, not only of the same height, but also of the same diameters. But here again we find the same amount of architectural symmetry. For the columns of Susannah and of the step daughter are Grecian Doric, having no bases what ever; while the columns of the children of the testa tor's other three daughters are of the Tuscan order, resting upon the life estate of one parent for a base as on a single torus. And the column of John's children is Roman Doric, based upon the lives of both parents; the life estates of the father and mother forming the torus and the astragal upon which the column of their children's interest in that part of the testator's property stands. Again, by a codicil, both of the columns of John's children were turned into modern Gothic by the binding up of the father and mother and children together in the lower section of the trunk of the column, .supported as before by the buttress of trustees, and making the column to assume a form implying flexure and ramification; which is a dis tinguishing characteristic of that order of architec ture. With these strong evidences of the testator's want of architectural taste and of the slight devel
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opment of the bump of order which the cranium of that honest German burger must have exhibited, it would, I think, be unsafe to place our decision in this case upon the hypothesis that he undoubt edly intended to construct the temple of his bounty upon correct architectural principles; or to distribute his estate between his children and his stepdaughter, and their children, in strict mathematical proportions." The Chancellor evidently was not fond of the Italian opera, for in De Rivafinoli v. Corsetti, 4 Paige, 264, he refused a writ of ne exeat on a bill filed quia timet that the defendant was about to leave the country and break his engagement as prima basso. He indulged in the following remarks : — "Upon the merits of the case, I suppose it must be conceded that the plaintiff is entitled to a specific performance of this contract; as the law appears to have been long since settled that a bird than can sing, and will not sing, must be made to sing (old adage)." [Counsel should have retorted " You can lead a horse to the water, but you can't make him drink " (old adage).] "In this case, it is charged in the bill, not only that the defendant can sing, but also that he has expressly agreed to sing, and to accompany that singing with such appropriate gestures as may be necessary and proper to give an interest to his performance. And from the facts disclosed, I think it is very evident also that he does not in tend to gratify the citizens of New York, who may resort to the Italian opera, either by his singing or by his gesticulations. Although the authority be fore cited shows the law to be in favor of the complainant, so far at least as to entitle him to a decree for the singing, I am not aware that any officer of this court has that perfect knowledge of the Italian language, or possesses that exquisite sensibility in the auricular nerve, which is neces sary to understand and to enjoy, with a proper zest, the peculiar beauties of the Italian opera, so fascina ting to the fashionable world. There might be some difficulty, therefore, even if the defendant was compelled to sing under the direction and in the presence of a master in chancery, in ascertaining whether he performed his engagement according to its spirit and intent. It would also be very diffi cult for the master to determine what effect coercion might produce upon the defendant's
