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referred to the phrase "during her life.” It would seem that if the phrase had been instead “until her death,” the remainder would have been contingent under this reasoning.
These cases which are out of line indicate that attempts to classify the decisions must all give way to the intent of the testator as gathered from the will; in other words, that the rules are rules of construction and not of property. Where the intent of the testator “is clearly, or sufficiently, manifest, it must control, without regard to general rules of construction."'12
A direction to divide and pay over the property to the remaindermen upon the death of the life tenant will ordinarily make the remainder contingent, but here, too, the rule is simply one of construction. This provision in wills has caused more litigation than
. any other, and the analysis of this class of cases is beyond the scope of this note.
The effect of New York's attempt to clarify the distinction between vested and contingent remainders in the Revised Statutes has extended beyond the borders of this state. In Michigan and Wisconsin, the New York statutory definitions have been copied, 15 and it is interesting, perhaps, to note that similar confusion has arisen in those states from accepting the interpretation of the statute announced in Moore v. Littel.16
As we have seen, there is a difference between the common law definition of vested and contingent remainders and the statutory one. As early as 1836 it was said that the “determinate” idea of the person to take, as contained in the common law definition, was eliminated by the statute, 17 and Moore v. Littel, of course, took this view. Later cases have brought back the determinate idea in a modified form, thus exhibiting "the tenacity with which courts cling to common-law principles even after displaced by a plain statute."'18 The result is the? curious situation now existing, under which “heirs” take a vested interest, while the interest of “surviving children,” who are equally ready to take should the life interest now cease, is contingent.
As a practical matter it is best to consider such remainders vested in some person, who may represent the property as a whole, even though others may come later who have an interest therein. An element of certainty is added to future estates, which in many cases is helpful. To hold such future estates vested if possible has been
12 Roosa v. Harrington, 171 N. Y. 341 (1902).
13Warner v. Durant, 76 N. Y. 133 (1879); Smith v. Edwards, 88 N. Y. 92 (1882); Shipman v. Rollins, 98 N. Y. 311 (1885); Delafield v. Shipman, 103 N. Y. 463 (1886); In Re Tienken, 131 N. Y. 391 (1892).
14 In Cammann v. Bailey, 210 N. Y. 19 (1913), CULLEN, C. J., said, “The result of the rule as to the construction of a gift, confined to a mere direction to divide and pay over, has been productive of more litigation than any other rule as to the construction of wills." For comprehensive note on so-called "divide and pay over rule," see L. R. A. 1918 E, p. 1097.
15Vol. 4, Howell's Michigan Statutes, sec. 10635; Wisconsin Statutes, Chap. 95, sec. 2037.
16 See Porter v. Osmun, 135 Mich. 361 (1904): In Re Moran's Will, 118 Wis. 177 (1903); McMichael v. Peterman, 140 Wis. 589 (1909).
17 Coster v. Lorillard, 14 Wend. (N. Y.) 265 (1836). 18In Re Moran's Will, supra, note 16.
called "a rule of convenience, and almost of necessity."'1' Accordingly, it is not surprising that, as evidenced by the dictum in the principal case and in other recent cases,20 there is no present desire on the part of the courts to set aside Moore v. Littel, and its rule must be accepted as one of the anomalies of the law of real property.
Malcolm B. Carroll, '19.
1'Kent v. Church of St. Michael, 136 N. Y. 10 (1892).
2°Clowe v. Seavey, 208 N. Y. 496 (1913); Crackanthorpe v. Sickles, 156 App. Div. (N. Y.) 753 (1913); Wright v. Clark, 81 Misc. (N. Y.) 527 (1913).
RICHARD H. BROWN, Editor-in-Charge.
Lemuel Shaw, Chief Justice of the Supreme Judicial Court of
Massachusetts, 1830-1860. By Frederic Hathaway Chase.
pp. vi, 330. Justice Holmes in his "Common Law" says of Chief Justice Shaw, "the strength of that great judge lay in an accurate appreciation of the requirements of the community whose officer he was. Some, indeed many, English judges could be named who have surpassed him in accurate technical knowledge, but few have lived who were his equals in their understanding of the grounds of public policy to which all laws must ultimately be referred. It was this which made him, in the language of the late Judge Curtis, the greatest magistrate which this country has produced. Daniel Webster said of him that he was "unsurpassed in everything that constitutes an upright, learned and intelligent judge;
there is not in the world a more upright, conscientious judge than Chief Justice Shaw." Rufus Choate remarked on one occasion, "When you consider for how many years and with what strength and wisdom he has administered the law,-how steady he has kept everything,—how much we owe to his strength of character, I confess I regard him as the Indian does his wooden log curiously carved; I acknowledge he is ugly but I bow before a superior intelligence." Senator Hoar testifies that throughout Massachusetts the Chief Justice was venerated as if he were a demi-god, and in his native county as a god.
It is strange that that one to whom such homage was paid by his eminent contemporaries and who won so exalted a place in the history of a great commonwealth should have waited nearly sixty years for recognition of his fame by an adequate biography.
Lemuel Shaw was born in Barnstable, Mass., in 1781. His father and his father's father were ministers, and like the ministers of early New England were at the top of the social ladder, a lofty position to which their parishioners sometimes found it difficult to hand up a sufficient part of the products of the reluctant soil. Remuneration by the flock lagged behind their veneration. Of Lemuel's boyhood there is little record beyond the facts that he worked on the farm attached to the parsonage and was, in the absence of preparatoy schools, fitted for Harvard college by his father, and for a few months by another tutor. He entered Harvard in 1796 and graduated in 1800. His standing appears to have been good, though not distinguished, and his student life was marked by nothing unusual. During the winter vacations of ten weeks, he taught school for his board, transportation, and sixteen dollars per month. Toward the end of his college course he had not chosen his profession, although inclined toward the law, while he knew that his parents intended him for the ministry.
The future chief justice stepped from college out into the world in the first year of the nineteenth century, an era in which the discoveries of science and its useful applications were to revolutionize the beliefs of men and their methods of carrying on their daily business. The old order and instrumentalities of social and economic contact were to undergo a great transformation. The law will have to yield to the exigencies of the new time. Massachusetts was destined to be the earliest of the great industrial states, with its marine adventures glorified in the memories of old Salem, its water power driving the roaring looms of many factories, and the development of interior transportation to carry the product of its mills. The state needed the great magisterial mind to modify and adapt the common law to the readjustments caused by the changed activities of its people. And as other states followed in the social and industrial shift, whatever Massachusetts did was bound to be observed as an example to be considered. That dominant magisterial mind was found in Lemuel Shaw.
He began his law study the year following his graduation from college. He started his practice at Amherst, N. H., and after two years went to Plymouth, Mass., where he practiced for a short time. In 1806 he moved to Boston, where he followed his profession until 1830, when Governor Lincoln commissioned him directly from the bar to the Chief Justiceship of the Commonwealth. Shaw at first peremptorily declined. The Governor then enlisted the persuasive power of Daniel Webster, who called upon Shaw and gives a graphic account of his solicitation: “I approached him upon the subject. He was almost offended at the suggestion. 'Do you suppose,' said he, ‘that I am going at my time of life to take an office that has so much responsibility attached to it for the paltry sum of three thousand dollars a year?' 'You have some property,' I replied, 'and can afford to take it.' 'I shall not take it under any circumstances,' was his answer. I used every argument I could think of. I plied him in every possible way, and had interview after interview with hin. He smoked and smoked, and, as I entreated and begged and expostulated, the smoke would come thicker and faster. Sometimes he would make a cloud of smoke so thick that I could not see him. I guess he smoked a thousand cigars while he was settling the point. He declared by all that was sacred he would resist the tempter. I appealed to his patriotism. I said he was a young man, and should take it for that reason. A long judicial life was the only useful one to the State. His decisions would give stability to the government, and I made him believe it was his duty,-as I think it was under the circumstances.”
Shaw yielded and remained Chief Justice until his resignation thirty years later, a few months before his death. His labors as a judge are represented by his opinions in fifty-six volumes of the Massachusetts reports. His name has become almost a fetish in his native state, and his fame has extended to the informed members of the bar throughout the country. In difficult or novel cases his mind was a great, ponderous, slowly-working milling machine, crushing the ingredients fed into it, separating the dross from a treasure which has become a part of the legal possession of perhaps all of our states.
Judge Chase's biography is written with all available knowledge of its subject and with a restraint and impartiality that would, one feels sure, have won the commendation of the great man whose life he has studied with reverence and sympathy. Not the least important feature of the book is a hitherto unpublished likeness of the Chief Justice taken in 1853 at the age of seventy-two. So powerful, striking, and free from self-consciousness is the physiognomy of the frontispiece portrait that it seems to the reader to be limned in the background of all the succeeding pages, and to be itself a running comment on the author's text.
E. H. W.
American City Progress and the Law. By Howard Lee McBain.
Columbia University Press, New York. 1918. pp. viii, 269. The preface tells us that this volume contains the substance of a series of lectures given upon the Hewitt Foundation at Cooper Union in the city of New York during the months of February and March, 1917.
The book confines itself exclusively to the legal aspect of the problems that confront every urban community. While not primarily concerned with the advocacy of city betterment, it is quite evident throughout the book as well as from the title that the author does not merely take an academic interest in whether the law as it now stands facilitates or obstructs the city in its endeavor to apply new policies to the solution of its problems.
The problems discussed are indicated by the chapter headings: Home Rule by Legislative Grant; Breaking Down the Rule of Strict Construction of Municipal Powers; Expanding the Police PowerSmoke and Billboards; City Planning- Building Heights and Zoning; City Planning-Excess Condemnation; Municipal Ownership of Public Utilities; Control over Living Costs; Municipal Recreation; Promotion of Commerce and Industry.
The lectures cover a wide range of subject matter in a very satisfactory manner. The layman is not overwhelmed with technical terms and obscure allusions; the specialist will appreciate its keen analysis of the legal problems in the light of the most recent court decisions. Its table of cases is necessarily limited, but is well-balanced.
R. S. Saby.
A Treatise on the Law of Personal Property. By James Schouler.
Fifth Edition. Matthew Bender and Company, Albany. 1918. pp. xci, 886. The law pertaining to that varied collection of objects termed "personal property" does not readily lend itself to classification, and although there are many textbooks dealing with one or another branch of the subject, treatises on the law of Personal Property as a whole are comparatively rare. The limitations of a one-volume work dealing with such a wide variety of subjects is easily recognizable, but in spite of these limitations, the purpose of the book is a valuable one.
The present work was produced almost a half century ago, the first edition being published in 1873, with the express intent of filling