2 stances, if the attempted disposition fails to take effect in the manner intended, the physical act of destruction is deprived of all revoking efficacy.1 The condition upon which alone the revocation was intended to operate is unfulfilled and the animus revocandi essential to every valid revocation is, therefore, lacking. On the other hand, the mere intention to make a new will in the future should not raise a presumption of a conditional revocation. The solution of each case turns upon the intent of the testator, and that, as a question of fact, is for the jury to determine. A deliberate destruction animo revocandi clearly operates as a complete revocation, even though the testator also intends to execute a new will in the future, but fails to do so.* A more difficult question arises in the case of revocations founded on mistake. Suppose, for example, that the testator destroys his will under the mistaken supposition that he has made another valid will. A recent English decision holds, in accordance with previous authority, that the first will is not revoked. Estate of Irvin, 25 T. L. R. 41 (Prob. D., Nov. 2, 1908). And the same result has been reached where a testator strikes out, or partially erases the name of a legatee and substitutes the name of another, or increases or reduces the gift which he has previously made, without authenticating the changes by a new attestation in the presence of witnesses. In like manner, it is well settled that a will is not revoked by a subsequent will made under a mistake of fact.10 On the other hand, a different result is reached by the courts where the revocation is founded on advice which turns out to be false. Such a revocation is not treated as conditional or dependent upon the soundness of the advice. An exception is also made where the subsequent instrument contains a revoking clause, and a new disposition which is invalid. The rule in such cases appears to be that the revoking clause is not regarded as conditioned upon the efficacy of the disposing part and that the revocation should stand.12 The extension of the doctrine to revocations founded on mistake seems, however, open, both theoretically and practically, to serious objection. The theory upon which the courts proceed appears to be that the presence of the mistake prevents the animus revocandi.18 But the fallacy in this view 1 Dixon v. The Solicitor to the Treasury, [1905] P. 42. 2 Cf. Giles v. Warren, L. R. 2 P. & D. 401. 3 See McIntyre v. McIntyre, 120 Ga. 67, 71. Semmes v. Semmes, 7 H. & J. (Md.) 388; Estate of Olmstead, 122 Cal. 224. But see Goods of Applebee, 1 Hagg. Eccl. 143. 5 Scott v. Scott, I Sw. & Tr. 258; Dancer v. Crabb, L. R. 3 P. & D. 98; Wilbourn v. Shell, 59 Miss. 205. 6 Wolf v. Bollinger, 62 Ill. 368. 7 Goods of McCabe, L. R. 3 P. & D. 94. 8 In re Knapen's Will, 75 Vt. 146. 9 Locke v. James, 11 M. & W. 901; Soar v. Dolman, 3 Curt. Eccl. 121. 10 Doe d. Evans v. Evans, 10 A. & E. 228; Campbell v. French, 3 Ves. Jr. 321. The conditions, however, which the testator assumed to exist, and the assumed existence of which induced the revocation, must appear on the face of the subsequent revocatory instrument. Skipwith v. Cabell, 19 Grat. (Va.) 758; Gifford v. Dyer, 2 R. I. 99. But see Goods of Moresby, I Hagg. Eccl. 378. held to result where the Mendinhall's Appeal, 124 11 Atty. Gen. v. Lloyd, I Ves. Sr. 32. Revocation is also facts are peculiarly within the knowledge of the testator. Pa. 387; Hayes v. Hayes, 21 N. J. Eq. 265. But see In re Taylor's Estate, 22 Ch. D. 495: 12 Price v. Maxwell, 28 Pa. 23; Hairston v. Hairston, 30 Miss. 276; Tupper v. Tupper, 1 K. & J. 665. Compare Quinn v. Butler, L. R. & Eq. 225, with Locke v. James, 11 M. & W. 901. 13 See, for example, Locke v. James, supra. 15 is that it overlooks the distinction between incompleteness and completeness induced by mistake. The revocation in this class of cases is not in any sense conditional. The mistake simply operates as the inducement to the complete act of revocation and does not prevent its coming into being.1 Equity, however, might well relieve against such a revocation where to do so would more nearly carry out the intention of the testator. There would, moreover, seem to be no valid practical objection to the setting aside of the revocation by the probate courts provided the equitable basis of their action were recognized.16 As it is, they have frequently unconsciously done the work of equity," but the failure to make the above distinction has resulted in many decisions which seem to do violence to the intention of the testator.18 LIMITATIONS UPON THE SERVICE AND Enforcement of SubpŒnas. — As a general rule, a subpoena may be taken out by any party to a suit without special leave of the court.1 Originally defendants indicted for capital felonies were not included within this rule, but by statutes they have generally been placed upon an equal footing with other parties. The general rule is, however, subject to many limitations. Thus it is within the discretion of the court to refuse to allow an excessive number of witnesses to be summoned,' and where the defendant may subpoena witnesses at the state's expense, the courts generally require him to show that the desired witnesses will be able to give material evidence. Moreover, the right to have subpoenas issued is broader than the right to compel attendance in obedience thereto. The right guaranteed by the Sixth Amendment and by various state statutes to have compulsory process for obtaining witnesses is limited to the right to have subpoenas served. The theoretical basis for this view is that in the eighteenth century the practice of compelling attendance of witnesses by attachment was not well settled in England,' so that the right to have compulsory process, if strictly interpreted, then meant merely that the subpoenas should be served; and if they were not obeyed, the aggrieved party was left to his action for damages. From a practical standpoint a subpoena may frequently be issued as a matter of course, whereas upon further information it would 8 14 Cf. Edmunds v. Merchants' Despatch, etc., Co., 135 Mass. 283. 16 Cf. in the law of sales where the courts in allowing the action of trover, Thurston v. Blanchard, 22 Pick. (Mass.) 18, or replevin, John V. Farwell Co. v. Hilton, 84 Fed. 293, against the fraudulent vendee of a chattel are really doing equitable work. The fraudulent vendee is a constructive trustee, and the allowance of the action is in essence nothing else than specific enforcement of his obligation to return the title wrongfully acquired by him. 17 See Powell v. Powell, L. R. 1 P. & D. 209; Goods of McCabe, supra. 18 The probate courts should face the question squarely, recognize that a revocation induced by mistake is not really conditional, and either refuse to do equitable work or disregard the revocation and revive the old will only where that result is clearly the intent of the testator. 1 Raymond v. Tapson, 22 Ch. D. 430. 2 See 2 Hawk. P. C., c. 46, § 165. 8 See West v. Wisconsin, I Wis. 209. 4 Butler v. State, 97 Ind. 378. Jenkins v. Florida, 31 Fla. 190. See State v. Graves, 13 Wash. 485. State v. Stewart, 117 La. 476. 7 See Bowles v. Johnson, 1 W. Bl. 35. 8 See argument of counsel in People v. Smith, 3 Wheeler Cr. Cas. (U. S. C. C.) 134 et seq. not be proper to allow an attachment. Thus where a witness fails to attend, and gives as his excuse that he knows no evidence relevant to the issue or that the subpoena was had merely for vexatious purposes, the court upon being convinced of these facts may order the subpoena to be set aside." Such was the decision very properly made in a recent English case where subpoenas were served upon the Prime Minister and the Home Secretary. Rex v. Baines, 25 T. L. R. 79 (Eng., K. B., Nov. 18, 1908). The ministers did not attempt to rely upon their official position as a ground for not appearing, and it is apparently settled in England that dignity of office exempts no one except the King from the service of a subpoena.10 Since the President of the United States, like the Prime Minister of England, is not above the law, the best view is that a subpoena may properly be served upon him.11 A fortiori, subpoenas may be served upon members of the cabinet 12 and congressmen.18 But although dignity of office does not prevent the service of subpoenas and cannot properly be set up as an excuse for disregarding them, yet official duties may be a sufficient excuse for not appearing in court.14 How far the courts should attempt to enforce obedience to subpoenas in such cases is largely a question of expediency. It is generally better that high officials should give their undivided attention to affairs of state than that they should be forced to attend trials of comparatively little importance. When a subpoena duces tecum is served, the President, or even a governor, is justified in refusing to bring the desired papers into court, because he is necessarily the judge as to whether their contents ought to be kept secret; 15 for the court could not pass upon this question unless their contents were first disclosed. When only attendance ad testificandum is required, executive privilege is not as well established either in reason or in practice, but as a general rule the court should assume that the executive is acting properly and that his absence is due to his official duties or engagements rather than to contempt of court.16 RECENT CASES. BANKRUPTCY - JURISDICTION OF FEDERAL COURTS - JURISDICTION OVER STATE RECEIVER. A corporation was adjudged bankrupt on the ground that within four months a receiver had been appointed because of its insolvency, by a state court. On application by the trustee in bankruptcy the state court refused to direct its receiver to turn over to the trustee the property of the bankrupt. The trustee then applied to the bankruptcy court for a summary 9 In re Mundell, 52 L. J. Ch. 756. See also Dicas v. Lawson, 4 L. J. Exch. 80; Tinley v. Porter, 2 M. & W. 822; Steele v. Savory, 8 T. L. R. 94; Morgan v. Morgan, 16 Abb. Prac. (N. S.) 291. 10 See Felkin v. Lord Herbert, 1 Dr. & Sm. 608; 1 Bl. Comm. ch. VII. 11 See United States v. Burr, 25 Fed. Cas. 1. 12 See People v. Smith, supra. 18 Art. I, § 6 of the federal Constitution would prevent enforcement of a subpoena by attachment, while a congressman is in attendance at or going to or from a session of Congress. Respublica v. Duane, 4 Yeates (Pa.) 347; United States v. Thomas, 28 Fed. Cas. 79. But the tendency of the federal courts to give exemption even from the service of a subpoena during such time does not seem justified. See Miner v. Markham, 28 Fed. 387. Contra, Wilder v. Welsh, 1 McArthur (L. C.) 566. 14 See Thompson v. German Valley Railroad Co, 22 N. J. Eq. 111. 15 Thompson v. German Valley Railroad Co., supra. 16 Appeal of Hartranft, 85 Pa. St. 433. order on the receiver. Held, that he is entitled to the order. In re Hecox, 164 Fed. 823 (C. C. A., Eighth Circ.). The amendment of 1903 to § 3 a of the Bankruptcy Act of 1898 declares it to be an act of bankruptcy that because of insolvency a receiver has been put in charge of property, under a state law. An adjudication of involuntary bankruptcy is conclusive of the commission of the acts of bankruptcy charged. In re American Brewing Co., 112 Fed. 752. And there can be no collateral attack on the decision of the state court: it can only be reviewed in direct proceedings. Edelstein v. United States, 149 Fed. 636. As the Bankruptcy Act is a national law, passed pursuant to the power given to Congress by the Constitution, it suspends the operation of all conflicting state bankruptcy laws. In re Gutwillig, 90 Fed. 475. As is pointed out in the principal case, it is therefore a mere matter of judicial courtesy for the federal court to direct its trustee to petition the state court for an order. Indeed, if the state court should in any way try to retain such property in its possession the federal court could enforce its decree by means of physical force exercised through its official agents. See Ex parte Siebold, 100 U. S. 371, 395. BILLS OF PEACE - BILL TO AVOID NUMEROUS ACTIONS OF TRESPASS AT LAW. The plaintiff brought a bill to enjoin the defendant from continually trespassing on his land. The defendant did not deny the plaintiff's title, but demurred on the ground that the plaintiff had an adequate remedy at law. Held, that the demurrer be overruled. Cragg v. Levinson, 37 Nat. Corp. Rep. 614 (Ill., Sup. Ct., Dec. 15, 1908). See NOTES, p. 371. CONFLICT OF LAWS - EFFECT AND PERFORMANCE OF CONTRACTS NOTE MADE in One STATE AND PAYABLE IN ANOTHER. - A promissory note was made in Kansas and payable in Missouri. Held, that its negotiability is governed by the law of Missouri. Sykes v. Citizens' Nat. Bank, 98 Pac. 206 (Kan.). The negotiability of a note is generally governed by the law of the place where it is made. Corbin v. Planters Nat. Bank, 87 Va. 661. But there seems to be considerable conflict as to what law governs when the note is made in one place and payable in another. It has even been said, on the erroneous assumption that negotiability relates to the form of the remedy instead of to the nature of the contract, that the lex fori governs. See Roads v. Webb, 91 Me. 406. And it has been held that the parties may elect to be governed by the law of either jurisdiction. Arnold v. Potter, 22 Ia. 194. And that the naming of a place for payment shows prima facie intent to be governed by that law. Shoe and Leather Nat. Bank v. Wood, 142 Mass. 563. The weight of authority is with the main case that the law of the place of payment governs in the absence of express stipulation to the contrary. Brown v. Gates, 120 Wis. 349. The correct view, it seems, is that the law of the place where the note is made should govern. Ory v. Winter, 4 Mart. (N. s.) (La.) 277; 2 Beale, Cas. Confl., 511 and note. CONFLICT OF LAWS - LEGITIMACY AND ADOPTION-EXTRA-TERRITORIAL EFFECT OF ADOPTION. A of Georgia adopted B of Georgia, and died leaving land in Alabama. B claimed that he was entitled to succeed to this land. By a statute in Georgia an adopted child gained the right of inheritance. By a statute in Alabama adoption gave the person adopted the right to inherit, but the adoption was required to be by acknowledgment and registration in the probate court. Held, that B is not entitled to the land. Brown v. Finley, 47 So. 577 (Ala.). See NOTES, p. 372. CONSTITUTIONAL LAW TRIAL BY JURY - COMPULSORY REFERENCE OF ACCOUNTS IN CIVIL CASE. —An action in which a counterclaim involved a long examination of accounts was referred over the plaintiff's objection. Held, that this compulsory reference is unconstitutional because it denies the plaintiff the right of trial by jury guaranteed by the state constitution. Snell v. Niagara Paper Mills, 86 N. E. 460 (N. Y.). The amendment to the Constitution of the United States, concerning the right of trial by jury, does not apply to civil actions in state courts. Walker v. Sauvinet, 92 U.S. 90. This ancient right is protected in the state constitutions by a declaration that the right shall remain inviolate, or by an equivalent provision. See SEDGWICK, STAT. AND CONST. LAW, 2 ed., 482. Therefore it is necessary to determine whether a jury trial was a matter of right prior to the adoption of the state constitution. Some colonial courts, because of the difficulty in giving such a question to a jury, sent to a referee any action in law involving a long account. So, although a compulsory reference defeats a jury trial, it is not unconstitutional in the states that had formerly allowed this practice. Creve Cœur Lake Ice Co. v. Tam, 138 Mo. 385; Monitor Iron Works v. Ketchum, 47 Wis. 177. But it was never allowed in some states. Francis v. Baker, 11 R. I. 103. And a compulsory reference is unconstitutional in the federal courts. United States v. Rathbone, 2 Paine (U. S.) 578. A long account is ordinarily referable in New York, but when it appears in a counterclaim, a compulsory reference is held unconstitutional, because early practice would not have allowed such a reference. Steck v. Colorado F. & I. Co., 142 N. Y. 236. This is properly followed in the main case. But see Monitor Iron Works v. Ketchum, supra. CONTEMPT-POWER TO PUNISH FOR Contempt - WHEN SWORN DENIAL BY DEFENDANT IS CONCLUSIVE. - In a proceeding for contempt, under a charge of attempting to influence talesmen summoned on the jury, the defendant in a sworn statement denied some of the acts charged and denied any intention to influence the talesmen by the admitted acts. The court admitted further evidence to refute this statement, and the defendant was convicted. Held, that it is not error to admit this evidence. Coleman v. State, 113 S. W. 1045 (Tenn.). In an action for contempt the old common law rule was that the defendant might purge the contempt by a sworn statement of denial. Underwood's Case, 2 Humph. 46. In some states statutes have reversed the common law rule. Drady v. District Court, 126 Ia. 345. And it seems never to have been adopted in equity. United States v. Debs, 64 Fed. 724. When the contempt charged consists of certain unambiguous facts, the common law rule is not generally accepted and evidence may be admitted contradicting the defendant's denial. United States v. Shipp, 203 U. S. 563. Thus the defendant's denial is not conclusive when the act of contempt has been the publication of matter libellous per se. In re Chadwick, 109 Mich. 588. Contra, In re Robinson, 117 N. C. 533. But when the matter published is of an ambiguous nature and clearly open to explanation, the defendant's denial of intent to act in contempt will be conclusive. Fishback v. State, 131 Ind. 304. Since, however, the acts charged in the principal case were unambiguously in contempt, the defendant's denial should not bar the admission of further evidence in rebuttal. CORPORATIONS CORPORATE POWERS AND THEIR EXERCISE - EXTERIOR Advertising ON PUBLIC OMNIBUS. — The plaintiff corporation maintained large, highly colored advertising signs upon the outside of its omnibuses. When threatened with interference by the city, the plaintiff sought to enjoin municipal action. Held, that an injunction will not be granted, as the plaintiff in engaging in exterior advertising is acting ultra vires. The Fifth Avenue Coach Co. v. City of New York, 40 N. Y. L. J. 1587 (N. Y., Ct. App., Jan. 5, 1909). This decision affirms the decision of the lower court, commented upon in 21 HARV. L. Rev. 445. CORPORATIONS CORPORATION. - CORPORATIONS DE FACTO - RECEIVER FOR DE FACTO A receiver was appointed for an insolvent railroad corporation, and he sold some of its property. There was a defect in the incorporation of the railroad on account of a failure to file an affidavit required by the statute. |