36.

37.

tate was given to J. C. unconditionally, and was not charged with payment of the legacy to K. White v. Kauffman, Court of Appeals, Maryland Oct. 9, 1886; 5 Atl. Rep. 865.

-Construction.-"All my property leasehold and freehold."-R. by will, after appointing executors and directing his debts and funeral expenses to be paid, gave his wife "all my property leasehold and freehold which I now possess." Held, that all the testator's real and personal estate passed under the gift to his widow, and not only his leaseholds and freeholds. Re Roberts Kiff v. Roberts, Eng. Ct. App., 1886; 54 Law Times Rep. 386.

-"All the property settled on my marriage over which I have any disposing power." -P., a married woman, made a will the day after her marriage in the following terms: "In pursuance an exercise of the power of appointment vested in me by the settlement executed previously to my marriage and of every other power enabling me, I hereby appoint, give, and bequeath all the property settled by me on my marriage, and over which I have any disposing power unto my dear husband." After the execution of the will, but in the lifetime of P., O. died, having by will bequeathed 1007. East Indian Railway Annuities, in trust for P. for life, with remainder as she should by will appoint, with remainders over. Heid, that P.'s will was not confined to the property comprised in her marriage settlement, but operated to exercise the power given her by the will of O. Re Old's Trusts; Pengelley v. Herbert, Eng. Ct. App. 1886; London Law Times, Rep. Vol. 54, 677. Constructions-Testation-Technical Words.-A testator's intention may be more clearly indicated by the general tenor of the will than by technical words or phrases, especially when it is apparent that certain words are used in a sense different from their legal and technical meaning. Wiggin, Trustee v. Perkins, Supreme Court of New Hampshire July 30, 1886; 5 Atl. Rep. 904.

38.

39. Substitutional Gift-Vesting.-Gift of residue to A. for life, and afterwards equally between the children of testator's brothers and sisters, "the issue of any deceased child to take the parent's share." A testator, who died in 1871, by his will dated in 1870, gave his residuary estate to trustees upon trust to pay the income thereof to his widow for her life, and after death he gave the property unto and equally between all and every the children of his brothers and sisters, share and share alike, "the issue of any deceased child to take the parent's share." The testator's widow died in 1881. Some of the children of the brothers and sisters of the testator survived him, but died in the lifetime of the testator's widow, leaving issue. The question was, whether the issue of the deceased children of the brothers and sisters of the testator were respectively entitled to the shares of their deceased parents. Held, that the substitutional gift took effect in the case of any child of a brother or sister of the testator who had died in the lifetime of the testator's widow. Re Gilbert v. Matthews, Eng. Ct. Appl. 1886; 54 Law Times Rep. 752.

Remainders-Trusts-How Affected by Void Disposition of Fund-Based on Illegal BequestWhere a testator, by will, gives his property to trustees, with directions to pay the income in equal portions to his two daughters, and on the death of the surviving daughter to divide the principal among his grandchildren, or their issue then living, one share to each grandchild and one to the issue of each deceased grandchild, the gifts to the grandchildren do not vest until the division after the death of the surviving daughter, and are therefore void by force of the statute against perpetuities. Where, by the provisions of a will, the property is to be divided on the death of testator's daughters, and one share given to each grandchild, the interest of the grandchild is only contingent, until the death of the daughters and the division of the property. If he dies before that time, without issue, his interest is extinguished; if he leave issue, they take, not as his heirs, but as purchasers under the will. Declaring the final disposition of the trust fund void, does not affect trusts whose objects are so independent and severable from the illegal object, that they can be carried into effect with due regard to the legal rights of all parties interested, without annulling any of the legal provisions of the will, and without adding anything thereto. A trust whose foundation is a part of an illegal bequest, of which it is a mere incident or auxiliary, must fall with it. Andrews v. Rice, S. C. Conn., May 31, 1886; 5 Atl. Rep. 823.

QUERIES AND ANSWERS.*

[Correspondents are requested to draw up their answers the form in which we print them, and not in the form of letters to the editor. They are also admonished to make their answers as brief as may be.-Ed.]

QUERIES.

30. A. brings replevin against B. for a piano. B.executes a retaining bond and retains the piano. Pending the action, B. sells the piano to C. At the trial, judgment is rendered in favor of A., that he recover the piano or $200, its value. Execution is issued to sheriff for the piano or its value and he takes the piano from C.'s possession. Is he a trespasser in doing so? Did B.'s retaining bond relieve the piano of A.'s claim of ownership, so as to pass a good title to C. or not? P.

QUERIES ANSWERED.

a

Query 24. [23 Cent. L. J., 335.] A. sells town lot to B. for $1,000; before the deed is given, B. sells to C. for $1,500. By an arrangement between A. and B. to which C. is not a party, the deed runs from A. to C. direct, and names the considation as $1,500. C. is not informed of the actual amount received by A. The title fails and C. is ousted. In an action by C. against A. upon the covenants of warranty in A.'s deed, can C. collect the $1,500 actual sum paid by him, or only the $1,000, amount received by A.? H. P. R.

Answer.-A. is responsible upon his covenant of warranty to C. for the full amount $1,500, which by its terms he has acknowledged that he has received from C. He is estopped by his deed from denying that he received the sum named in it as the consider

ation of the conveyance. Besides, if he could in equity show, that in point of fact he received no more than $1,000, he is precluded from that defense because C. was not a party to the agreement between A. and B. by which A. was to make the title direct to him, and he had no notice that A. had received only $1,000. A. and C. both being innocent parties, the loss, by a well established rule of equity, must fall upon the one whose action rendered the loss possible. M.

CORRESPONDENCE.

MEMPHIS, MO., Oct. 26th, 1886. TO THE EDITOR OF THE CENTRAL LAW JOURNAL:Dear Sir:-I desire to call your attention to the decision of the Supreme Court of Missouri in the case Davidson v. Davis, 86 Mo. 440. It is possible that the doctrine of estoppel by the conduct of the heirs may have justified the court in reaching the conclusion it did, but the facts seem not to justify even that. But the court announces the unqualified doctrine that, "a widow cannot take the devise and bequest under the will and at the same time insist upon her homestead right." It appears to me that, the court overlooked the principle of law laid down by so many of our text books and supported by so many authorities, that "If the terms of the will do not indicate a clear intention that the bequests are made in lien of homestead, then she will take the bequests in the will and also her estate of homestead under the law." Thompson on Homesteads, section 544,Bryant v. McCune 49 Mo. 546. In Hassenritter v. Hassenritter, 77 Mo. 162, quoting approvingly from Sheldon v. Bliss 8 N. Y. 31. The court says "It is an established principle, that a provision in the will of the husband in favor of the wife will never be construed by implication to be in lien of dower or any other interest in his estate given by law; the design to constitute one for the other must be unequivocally expressed."

In Davidson v Davis, the terms of the will are not stated, neither is it affirmed that it contained unequivocal expressions indicating that the bequest in the will was in lieu of homestead. Possibly it did contain such expressions, but the court puts its decision upon the broad ground which I stated in the outset. The decision as it stands, as I think, is misleading and directly in the face of former decision of the same Court.

I call your attention to this case with some diffidence, as I claim to be no law critic, and besides I have a high respect for our Supreme Court.

The authorities cited by our correspondent fully sustain his views, and upon principle the same doctrine can be maintained. A testator will always be presumed to devise and bequeath with reference to the law affecting his estate which may be in force when his will takes effect. The homestead right of the widow is the creation of the law, goes into effect at the death of the testator, and withdraws the property, upon which it operates, from the general power of disposition which every testator possesses over his whole estate. He cannot devise the homestead to a stranger, if he devises it to the party entitled to it by the law, he does a work of supererogation; if he devises other property to the widow upon condition that she renounce her homestead right, the condition is a limitation upon her right to the other property, and not upon the homestead. By such a devise, he puts her upon her election between that which he gives her and that which the law gives her. That such an intention must clearly appear, is abundantly supported by

authority. In Missouri and in New York it has been held that such a limitation cannot be established by implication, but must be by express words. Bryant v. McCune, 49 Mo. 546; Hasenritter v. Hasenritter, 77 Mo. 162; Bliss v. Sheldon, 8 N. Y. 31. In Vermont, however, the court does not go quite so far, it says: "The intent to exclude the widow from her legal right must clearly appear; if it be doubtful she is not to be excluded. It is not necessary that this should appear in express words. If the terms of the instrument clearly and plainly imply it, * then the court will find the intent to exclude." Meech v. Meech, 37 Vt. 419.

Upon the whole, it seems to us very clear that a widow cannot be put upon her election, between the homestead or dower provided by the law, and the land devised by the will, unless the terms of that instrument clearly and unequivocally show that the land was devised upon condition that the devisee should renounce the homestead.-[EDITOR CENTRAL LAW JOURNAL.

RECENT PUBLICATIONS.

RAILWAY ACCIDENT LAW-The liability of railways for injuries of the person. By Christopher Stuart Patterson of the Philadelphia Bar. Philadelphia: T. & J. W. Johnson & Co., 535 Chestnut Street 1886.

This is a live book upon a subject, which like the poor, we have always with us, and perhaps more than any other, comes into the current litigation of the day. It is of course a subdivision of the great subject of negligence which from its immense and ever increasing mass will well bear subdivision. Mr. Patterson has acted wisely in confining himself to the liabilities of railroads, and treating that branch of the subject as exhaustively as he has done. In doing so, he has produced a book which cannot fail to be of great use to all practitioners in every State, for wherever the iron horse appears, the ubiquitous "damage suit" follows. Mr. Patterson's arrangement is very good. His work is divided into four books, the first treats of the general nature of the railway's liabilily; the second, of the persons for whose acts or omissions the Railway is liable; the third, of the persons for injuries to whom the Railway is liable; the fourth, treats of the remedy.

Each book is subdivided into chapters and they into sections, so that in the way of careful and methodical arrangement, nothing is left to be desired, while the very full table of cases cited, attest the diligent and laborious research of the author. The book is handsomely gotten up, the printing being particularly neat and clear. We have no doubt the work will prove very useful to the profession.

JETSAM AND FLOTSAM.

THE DEVIL'S OWN.-The London Law Times mentions a painful rumor that the well-known regiment of volunteers raised by the Inns of Court, appropriately named the "Devil's Own," and, presumably, composed of "limbs," is about to "disappear." We are quite confident that there can be no truth in the report, for nothing is better settled than that the deyil takes care of his own.

ST. LOUIS, NOVEMBER 19, 1886.

CURRENT EVENTS.

CRIMINAL LAW REFORM.-In a former number of this JOURNAL1 we noticed an article in the New York Nation in which a correspondent advocates the formation of a "National Association for Criminal Law Reform," from which should proceed projects of reform of criminal law to be laid before congress and the legislatures of the several States. Upon three of the six points upon which it was urged that reform was necessary, we expressed our views as fully as the limited space at our command would permit, and deferred the consideration of the others to a more convenient season. These deferred subjects are:

1.

The definition of self-defense in cases of homicide.

tender regard of the law for the sacred rights of personal security is abused for purposes of deliberate murder. The law as it stands, or more properly, perhaps, its application, is necessarily vague and indefinite. The old rule was that one must "retreat to the wall" before he can excusably kill his adversary. What is the wall?

When the retreat to the wall was first promulgated as the rule of self-defense, brawlers fought with swords and clubs, and the line of forbearance was distinct and appreciable. Now, it is indefinite as possible. How can a man retreat to the wall when he is "covered" by a six-shooter? He must get the "drop" on his antagonist or go under himself. The change in weapons has produced much confusion in the application of the law, but the principle remains that the assailed must abstain as long as he can with safety to himself from killing his assailant. That principle cannot be impaired in any government which professes to protect the lives of its citizens; the trouble is, and

of error or appeals.

3. The pardoning power, its restriction or regulation.

On the first of these points, it is manifest to every one who has observed the usual practice in criminal cases, that the plea of self-defense in cases of homicide is more generally abused than any other line of defense open to the accused, except that of "emotional insanity." Those expert in "single fight and mixed affray" seldom find much difficulty in leading an inexperienced antagonist into such a position of quasi aggression, as will probably justify a reasonable doubt as to self-defense, and then killing him. Especially is this the case in those sections of the country cursed with the prevalence of the habit of carrying concealed weapons. And in our judgment the enactment and relentless enforcement of the most stringent laws against that detestable practice would go further, than any other line of legislation, to remedy the evil in question. The plea of self-defense is, in proper cases, and in those only, very meritorious; but the practical difficulty always is, to draw the line.

123 Central Law Journal, 290.

Vol. 23.-No. 21.

courts and mistaken sympathy of juries have allowed it to operate in far too many cases to which it was in no proper sense applicable.

The chief fault of the law in this connection is that it is too indefinite, and we think that some good might be effected by careful and well considered legislation designed to define and limit the plea of self-defense. And, among other things, we think that the plea should not be allowed in cases in which the homicide had been committed with a weapon that had been unlawfully carried concealed by the accused.

As for abuses of the pardoning power, we do not believe that they exist to such a degree in any of the States as to render any legislation on the subject necessary, or any agitation for such legislation judicious or expedient.

Whether miscarriages of justice occur from abuses of the rights of appeal, new trials, and of sueing out writs of error, and what may be the best and most appropriate remedies for such abuses, are questions which we will consider in a future number.

NOTES OF RECENT DECISIONS.

EASEMENT WATER AQUEDUCT PRESCRIPTION-UNITY OF TITLE.-The Supreme Court of Maine recently decided a case1 involving questions of interest relating relating to easements in flowing streams and in aqueducts, and rights by prescription, as connected therewith.

The facts were that, in 1836 Herrick acquired a lease for 999 years of a certain spring, and the right to conduct its waters through the lands of conterminous proprietors. He constructed an aqueduct a mile long, from which the neighbors drew water for domestic and farm purposes by branch pipes, each paying a water rent for the privilege. Three persons, however, paid no water rent, but contributed in proportion to keep the aqueduct in repair. One of these was the predecessor of the plaintiff, and the defendant had succeeded to the farm and domicile of another. After Herrick's death in 1864, his rights in the aqueduct were sold to the defendant and Patten, who died, and by his will left all his property to his wife and daughter. In 1879, they conveyed the farm to the plaintiff Dority, including in the deed "all the branch water pipes, etc." Afterwards they conveyed to defendant Dunning all their interest in the aqueduct property. Thereafter Dunning excluded Dority from all use of the water, and he brought suit claiming that his water right was an easement appurtenant to his estate, and had passed to him by the deed of Patten's widow and daugh

ter.

Upon this the court held the law to be, that an easement of this character will not pass as an appurtenance to an estate conveyed, unless it has ripened into a legal right and become attached to the estate.2 An easement of this description does not pass by virtue of the habendum clause of the deed, for that only limits and describes, but never extends the subject-matter of the grant.3

either by express or implied grant, or by prescription which presupposes a grant, a conveyance of that estate will carry with it such easement, whether mentioned in the deed or not, though it may not be necessary to the enjoyment of the estate by the grantee." And the court adds, that evidence showing an adverse and exclusive use of water for forty-five years will be considered presumptive evidence of a grant." "And this is as true," says Parker, C. J., "in relation to water flowing through an aqueduct for use at a house, by the occupants, as it is in relation to the water of a river used for propelling machinery."

6

To this may be added the language of Chief Justice Mellen: "The law gives a natural construction to the conduct of the parties, and after a long succession of years presumes that the person enjoying the easement, having no right to enjoy it unless under the grant of the true owner, had such a grant; and that in consequence of it he had never been molested in his enjoyment."

Another point of interest is discussed and settled by the court in this case: That although by the sale of the aqueduct property to defendant and Patten there was a union of title in the latter of both the aqueduct and the easement in it of his own farm, which was subsequently conveyed to the plaintiff, the easement appurtenant to the farm did not merge in Patten's hand with the aqueduct property which he acquired from Herrick's administrator, and was extinguished by it. On this subject the court says:

"That an easement will become extinguished by unity of title and possession of the dominant and servient estates in the same person by the same right, is a principle of law too general and elementary to be questioned. But this principle, like many others, is subject to qualifications. In order that unity of title to the two estates should operate to extinguish an existing easement, the ownership of the two estates should be co-extensive,

to an estate, has become appurtenant to it,

1 Dority v. Dunning, 6 Atl. 6, Sept., 28, 1886.

2 Spaulding v. Abbott, 55 N. H. 428; See also Brown v. Manter, 21 N. H. 533; Sumner v. Williams, 8 Mass. 74.

3 Manning v. Smith, 6 Conn. 289.

42 Washb. Real Property, 28; Kent v. Waite, 10 Pick. 138.

5 Watkins v. Peck, 13 N. H. 370; Wallace v. Fletcher, 30 N. H. 432; Ashley v. Ashley, 4 Gray, 200; White v. Chapin, 12 Allen, 519; Jewell v. Hussey, 70 Me. 437; Murchie v. Gates, 78 Me. 304; s. c., 4 Atl. Rep. 698. Watkins v. Peck, supra.

cumstances of right. If one is held in severalty, and the other only as to a fractional part thereof by the same person, there will be no extinguishment of such easement.7 Thus it was held by Abinger, C. B., in the English court of exchequer, in Thomas v. Thomas, in which case one estate was held in fee, and the other for a term of 500 years, that unity of possession did not extinguish the easement, but only suspended it during that unity of possession; and upon parting with the premises to different parties the right revived."

The court applying these principles holds that there could be no extinguishment of the easement by reason of the unity of title in Patten of the easement and the aqueduct

itself, because his interest in the latter was fractional, and because, at best, it was a chattel interest, limited to 999 years. This latter reason, however, seems to have little force for the duration of the easement-at the utmost only extended to that precise period. The former reason, that Patten, owning the land owned also the easement, not own the whole of the aqueduct, only half of it; and if the union of title of the easement and the aqueduct would operate to extinguish the former, it does not follow that utiny of title of the easement and half the aqueduct would have the same effect."

did

SALE-WARRANTY-AUTHORITY OF AGENT -REPRESENTATIONS OF VENDOR IN PRICE-LIST. -The Supreme Court of New Hampshire decided last summer a case10 that should be a warning to too enterprising firms and overzealous salesmen. The facts found by the court were as follows: The defendants, by their agent Chesley, sold to plaintiff a steam heating boiler, warranting it to be durable, meaning by that term, as understood by both parties, that, with due care, it would last

7 Ritger v. Parker, 8 Cush. 147; 2 Washb. Real Prop. *85.

$ 2 Cromp., M. & R. 34.

9 On this subject generally, see, In re Gay, 5 Mass. 419; Chapman v. Gray, 15 Mass. 445; Brewster v. Hill, 1 N. H. 350; Hollenback v. McDonald, 112 Mass. 249; McConnell v. American, etc. Co., 5 Atl. Rep. 785, and note; Cross v. Ketts, 10 Pac. Rep. 409.

10 Smilie v. Hobbs, Gordon & Co., 2 New Eng. Rep. 345, July 29, 1886.

twenty or thirty years. The uestion was whether the evidence showed tha. a warranty had been given by the defendant. The conr held in effect, that if a vendor furnishes to his salesman a price-list or pamphlet containing a description and list of prices of his wares for distribution among his customers, and in that list durability is enumerated among the necessary qualities of a good boiler, by doing so he authorized his salesman to warrant the qualities so specified in the price-list as essential to a good boiler. The presumption is that he intends to sell a good article and not an inferior one. The court says: "The representations of the defendants, contained in their pamphlet and binding upon them as though orally made by distributed by their authorized agent, are as

them to a purchaser, or included in a bill of sale."

The court held, further, that the presumption that the vendor was acting in good faith in distributing the pamphlet, might well be the basis of a further presumption of authority in his agent to warrant the goods to be all that in the pamphlet they were represented to be.

A PLEA FOR STRICT CONSTRUCTION.

It is part of the respect and loyalty due the constitution to interpret it faithfully and precisely according toits letter and spirit. We should love it as much for the restraints it imposes as for the powers it delegates.

"This government," says Chief Justice Marshall (4 Wheat. 405), is acknowledged by all to be one of enumerated powers." Just as the grant of an estate is at common law a limitation of the estate granted, so the enumeration of certain powers in the constitution is a limitation of such powers and a prohibition against transcending them. "The government being one of granted powers its authority was limited by them," says Justice Field, and this is the view adopted in numerous instances by the

supreme court.

The tenth amendment is virtually a rule and warrant placed in the constitution itself for a strict construction:

"The powers not delegated to the United States by the constitution, nor prohibited by