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versely to the other might not be denied. We wish merely to contend that under the Married Women's Acts some other reason than that of the unity of marital relation must be discovered which prevents acquisition of title by adverse possession under such circumstances. Thus in Berry v. Wiedman, 40 W. Va. 36, 20 S. E. 817, it was held that where land is bought in the husband's name with the wife's money his possession of it as their common home without claim of owenrship expressed to her or to any one likely to inform her is not adverse to her right to a resulting trust.

The West Virginia case last cited does not arbitrarily adhere to the rule as to the impossibility of husband and wife to hold adversely to the other, but discusses the circumstances under which such holding would not be adverse. It is quite clear that proof of the notoriousness, exclusiveness and hostility of the possession of husband or wife against the other will often be a matter difficult of proof, especially where the property is used as a common home, but this fact does not change the rule that where the disabilities of coverture have been removed and a married woman is regarded as a feme sole it is possible, under proper conditions, for either spouse to acquire property from the other by adverse possession as well as by deed.

RIGHT OF ADMINISTRATOR TO RECOVER INSURANCE FOR DEATH OF DECEDENT WHERE DEATH WAS PROCURED BY ONE WHO IS THE DECEDENT'S SOLE DISTRIBUTEE.-The right of a murderer to sue for any benefits secured to him by the death of the one whose life he has feloniously taken is quite universally denied. Riggs v. Palmer, 115 N. Y. 502, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep 819 (leading case); New York Mutual Life Insurance Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. Rep. 877, 29 L. Ed. 997. See, also, 14 R. C. L. 1,228, title Insurance, § 409, and authorities there cited. In the Riggs case a legatee was declared to have forfeited a legacy bequeathed to him by the will of the testator, whom he murdered. The Armstrong case applies the same principle to a suit for the proceeds of insurance by a beneficiary who murdered the insured. This rule is, of course, founded on public policy, which will not permit the felon to reap a legal benefit from his own crime.

In all these cases, however, and many others the courts have merely declared the right of the plaintiff forfeited in favor of other beneficiaries and have permitted suit to be brought

in the name of the personal representative of the deceased for the benefit of the latter's estate. For in such cases the defendant who rightfully owes money under a contract with deceased should not be excused from paying it because of the inability of the beneficiary to take. It properly belongs to the estate.

But suppose the murderer is also the sole distributee of the estate. Will the law permit the personal representative to acquire the fund and thus indirectly confer on the murderer that which he could not have acquired directly? This was the interesting question discussed by the Supreme Court of West Virginia in the recent case of Johnston v. Metropolitan Life Ins. Co., 100 S. E. 864. In this case the defendant issued a policy to one Frank Pickens, whose life was subsequently taken by Susie Pickens, his wife, the beneficiary in the policy. The plaintiff, Johnston, however, brought suit on the policy for the benefit of the estate of the insured, but the Court held that he could not recover on the ground that Susie Pickens was under the law the sole distributee of the estate.

It was suggested that a recovery would be allowed in favor of the administrator and Susie Pickens denied the right of inheritance. The reasons why this result was not possible are well stated by the Court:

"Under our law there is no longer corruption of blood or forfeiture of estates upon conviction of crime, and there is no exception in our statutes of descents and distributions precluding one from inheriting in a case like this. The laws governing the devolution of property are an expression of the public policy of the state contained in its Constitution and legislative acts, and the courts are not justified in attaching to these acts exceptions or limitations which have not been placed thereon by the lawmaking bodies. It therefore follows that if the personal representative of the insured in this case is permitted to recover this fund, the beneficiary will accomplish by indirection that which she could not do directly. That the property of one who has been murdered will devolve upon the murderer where such is the course of distribution provided by law seems to be well settled in most of the American states. McAlister v. Fair, 72 Kan. 533, 84 Pac. 112, 3 L. R. A. (N. S.) 726, and note, 115 Am. St. Rep. 233, 7 Ann. Cas. 973; Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935, 25 L. R. A. 564, and note; Kuhn v. Kuhn, 125 Iowa 449, 101 N. W. 151; Carpenter's Appeal, 170 Pac. 203, 32 Atl. 637, 29 L. R. A. 145, 50 Am. St. Rep. 765; Owens v. Owens, 100 N. C. 240, 6 S. E. 794; Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540; Deem v. Milliken, 6 Ohio C. C. 357, affirmed on appeal 53 Ohio St. 668, 44 N. E. 1,134."

The Court in the principal case was therefore left with no alternative but to deny the administrator of the deceased the right to recover on

the policy in view of the ultimate inheritance of the entire proceeds by the murderess. On this point the Court said:

"Will the courts then allow themselves to be used for the purpose of bringing into existence an estate which will by operation of law devolve on one who because of his conduct is not entitled to it? The administrator has no interest in the subject-matter. It is agreed here that the insured left no debts, and it follows that every dollar of the fund recovered by the administrator in his representative capacity must go to the murderess. The suit is simply in his name for the benefit of the one who feloniously caused the insured's death. The case of McDonald v. Mutual Life Ins. Co., 178 Iowa 863, 160 N. W. 289, is very much like this case in its facts. In that case the administrator of the insured brought the suit to recover on the policy of insurance. It appeared that the sole distributees of the insured's estate were her father and mother, and that they had assisted in a criminal operation which produced her death. The court held that the administrator, if such facts were shown, would not be entitled to recover, for it would be for the benefit of those who are by the public policy of the law denied such right."

It seems to us the decision of the Court is

eminently sound if restricted to cases where the murderer is the sole distributee. Where, how

ever, other distributees would share the fund, it would hardly be fair to the innocent to deprive them of their rights in order to prevent the guilty party from securing any benefit from his crime.

It is interesting to note that this principle is not confined in its operation to the cases of homicide. It applies to all cases where one seeking a benefit has been guilty of an offense which brings about the condition on which the benefit is conferred. Thus where the basis of the recovery in a damage suit was the wrongful employment of plaintiff's decedents, who were under legal age, the administrator will not be allowed to recover, if the sole distributee is the father who himself sought and procured the employment of his child by the defendant. Dickinson v. Colliery Co., 71 W. Va. 323, 76 S. E. 654, 43 L. R. A. (N. S.) 335; Swope v. Coal Co., 78 W. Va. 517, 89 S. E. 284, L. R. A. 1917A 1,128. In all these cases the defendant is not excused from his obligation. In fact, the obligation or the liability, as the case might be, is sustained, but the plaintiff prevented from recovering because he himself, or, if the plaintiff is the personal representative of the deceased, the sole distributee of the estate, would receive the benefit of a situation created by his own wrongful act. In all such cases the party who has united with a defendant in the commission of the wrongful act will be prevented from taking advantage of his own wrong.

ODD WILLS AND PECULIAR
TESTATORS.

Says Mr. Dooley: "So f'r wan reason or another I've niver made a will, but I'll not deny it must be considhrable spoort f'r thim that has th' manes an' th' imagination to enjye it. To be enjyeable a will must be at wan an' th' same time a practical joke on th' heirs an' an advertisemint iv th' man that made it."

In looking through the books one is forced to admit that this witticism seems to be justified. Of Sir Joseph Jekyll, who by will left his large fortune to pay the national debt, Lord Mansfield said: "Sir Joseph was a good man and a good lawyer, but his bequest was a very foolish one." The heirs contested the will and it was set aside on the ground of imbecility. Sergeant Meynard in the reign of William III purposely worded his will in obscure terms, so there might be litigation to settle intricate law points which had troubled him in his practice at the bar. Curiosity of Law and

Lawyers, page 491. It was the will of Lord Chancellor Cowper that his son should never travel, giving as a reason "that there was little to be hoped and much to be feared from traveling." Two centuries later we find a similar request in the will of a Mr. James of San Francisco, who died May 10, 1910. Leaving a large estate to be disposed of under a holographic will, he specially admonished the devisees that there were to be no expensive trips to Europe. His advice was: "Spend your money in this country. Buy or build nice residences and live and enjoy yourselves among people you know." In a codicil he reiterated that there were to be "no trips to Europe."

Thellusen was a shrewd London merchant of Swiss origin, who had accumulated a fortune of $3,000,000 when he died, in 1797. Leaving a widow, three sons and

(1) Dooley on Making a Will and Other Necessary Evils, page 4.

(2) Harris, Ancient, Curious and Famous Wills, 225.

was to become known as the founder of the largest fortune of his time; it was a species of vanity, for the attainment of which he was willing to deprive his own children of their just inheritance. Nearly all litigation about wills arises because of an attempt on the part of the testator to vent his spleen or malice against some relative or to impose his whim and crochets upon succeeding generations. In a contest the courts and juries are inclined to sympathize with the heirs and find a way to break the will. thereby permitting the estate to be distrib uted according to law, despite Judge Lamm's epigram: "Where there is a will there is not always a way-to break it."

three daughters, he provided that the widow | making a foolish will. Thellusen's purpose should have $500,000 and that the residue should be invested as "an accumulating "an accumulating fund to be held by trustees during all the lives of the testator's sons and grandsons; and the oldest lineal male descendant" was to have the entire accumulation. The will was contested because of unreasonable restraint of alienation, being for three lives, but was sustained on appeal by the House of Lords in Thellusen v. Woodford, 4 Vesey 227. To place a limitation on property rights the statute 40 Geo. III, chap. 98, was enacted, which limits an accumulation by will or deed to two lives in being and 21 years. Similar statutes to prevent perpetuities are now in force in some States, but not in the State of Washington. That the common law applies seems to have been conceded. In re Galland's Estate, 103 Washington 106. The interminable litigation of the Thellusen case gave Dickens an opportunity to satirize the Court of Chancery under the renowned title of Jarndyce v. Jarndyce in "Bleakhouse," one of his masterpieces. Chancellor Kent, writing about 1830 in his commentaries, refers to Thellusen's will, saying: "If the limitation should extend to upwards of one hundred years, as it may, the property will have amounted to upwards of one hundred million sterling!" 4 Kent's Com. 287. Towards the end of the last century this estate was still in chancery, because of litigation to determine whether "the eldest male descendant or the male

descendant of the eldest son should inherit the property." The court decided that the male descendant of the oldest son should have it, following the doctrine of primogeniture. It should be remarked, however, that the expenses of administration, state taxes and costs of litigation were so large that the estate was practically swamped, for there was scarcely more on final distribution than when the testator died; thus Kent's apprehensions of an enormous accumulation were entirely unfounded. No doubt a layman would say "the lawyers made away with this large fortune" but the testator was to blame for

To provide evidence to sustain the wil some testators have experts to certify to their competency and mental soundness by attaching such certificate. As a precaution tc prove that a testator is of sound and disposing mind and free from delusions, this proceeding is not only of doubtful value bu risky, as was said in Greenwood v. Cline, Ore. 29, thus: "Procuring certificates of two physicians attached to the will that they have examined testatrix and find her of sound mind and perfectly competent to make her will, is an unusual circumstance. which leads to a suspicion against the integ rity of the instrument."

Jeremy Bentham was a great law reformer and philosopher. One would not suspect any foibles in his will. Yet the fact is that he bequeathed his body to Dr. Southworth Smith, "that his preserved figure might be placed in a chair at the banque table of his friends and disciples when they met on any great occasions of philosophy and philanthropy." This curious request was actually carried out, the body having been provided with a wax mask to resemble him in life and placed in a mahogany glass case. It is now at University College, Oxford.*

The acquisition of phenomenal fortunes on the Pacific Coast, resulting in extrava

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gant living and views, produced some peculiar wills. Perhaps the most noted was the will of James G. Fair, at one time Senator from Nevada, which involved an estate of more than $15,000,000. He died in San Francisco December 28, 1894; the next day a will was filed leaving his estate in trust for his three children, giving them the income for life, and upon their decease to be disposed of in various ways. On March 18, 1895, a pencil will was filed by Nettie R. Craven, then a principal in a public school. This second will devised the estate to the three Fair children direct, and was supported by them as the will of their father. After lengthy litigation it was determined that the Craven will was a forgery, together with deeds from Fair to her of valuable San Francisco property. The courts sustained the trust feature of the first will by a four to three vote.

cess.

shall within one year after the probate contest the same, or the validity of the will, the probate of the will shall be conclusive;" therefore, the Supreme Court held the judgment final and conclusive after one year, and not subject to attack directly or collaterally. In 1869 relatives of Broderick brought suit in the U. S. Circuit Court to vacate the decree, upon the ground that the will was a fraud; but without sucThis ruling was affirmed in the U. S. Supreme Court by a divided opinion. The decision of the California court holding that a court of equity could not grant relief from a forged will, unless a contest was commenced for that purpose within one year after the entry of an ex parte judgment admitting such will to probate, has been much criticised and severely condemned. One writer said: "In the history of enlightened jurisprudence, this is a solitary instance where a forged will has been upheld because courts exercising equity jurisdiction were unable to give relief." Schenk's Bench and Bar of California 212. The Broderick case was decided correctly if judgments are to have any permanency and conclusive effect. Whether the will was forged could have been determined in the probate proceedings, within one year after admission to probate as provided by statute; therefore, after one year the time for contest was barred. This case was cited in Hoscheid's Estate, 78 Wash. 309, upon the theory that the statute is one of limitation; otherwise, there would be no certainty to titles acquired through wills and probate proceedings.

Senator Broderick, who was killed by Judge David S. Terry in a duel September 16, 1859, left property of more than $250,000. An alleged will was admitted to probate in San Francisco October 20, 1860, whereby Broderick devised his whole estate to John A. McGlynn and George Wilkes. On November 29, 1861-more than one year after the entry of the judgment admitting the will to probate-the State of California filed a petition to escheat the estate because the deceased left no known heirs and that the will probated was not executed by Broderick. The lower court set aside the judgment declaring the will to be a forgery. This decision was reversed on appeal in California v. McGlynn, 20 Cal. 231. The court remarked: "If it shall be For many years an eccentric character . found that the decree of the probate court, lived in Seattle, who called himself Melody not reversed by the appellate court, is final Choir, his real name being Joseph H. and conclusive, and that so long as the proMelchoir. Like many people, not insane, bate stands the will must be recognized and however, he tried to get something for admitted in all courts to be valid, then it nothing, which he sought to accomplish by will be immaterial and useless to inquire acquiring tax titles to Seattle property. whether the will in question was in fact Some of the lots he purchased for less than genuine or forged." This was based upon | $5 each, through the rapid growth of the a statute which provided, "if no person I city, in the course of thirty years, had in

(5) In re Fair's Estate, 60 Pac. 442.

(6) Broderick's Will, 21 Wall. 503.

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creased to $5,000. At the time of his death, than $120,000. The writer appeared as in 1907, his estate was appraised at more counsel for him in Baer v. Choir, 7 Wash. 631, which involved a tax deed. The lower court upheld his title, but the Supreme Court directed a reversal, declaring the deed void, which Choir, through his delusions, attributed to a conspiracy against him. For years he lived in a dug-out, his only friend being a dog, as queer as his master. Of course, he left a will. "For the benefit of posterity" he listed mankind according to a scale of merits; some were designated as trustworthy, others as suspicious, and the remainder as "unhung scoundrels;" his counsel and the appellate

court attained to the "bad eminence" of the last class.

Choir's will is closely written in a bound book of 148 pages, ten inches by eighteen inches. At the top and bottom of each page he wrote in red ink, "Witness my hand and seal-Melody Choir," followed by an elaborate seal, and dated October 20, 1900. The will was admitted to probate March 1, 1907. He writes of himself thus: "The incontrovertible facts in my case are these-there never was a better, all round individual ever set foot upon the regions of this broad State, than myself!" He declares that in 1875 he read Blackstone, but detested attorneys, for he says: "I never liked lawyers as a class, and to keep away from them and steer clear of their inveigling schemes and grasping machinations-ever an active ingredient in their diabolical professionhas been my constant, lifelong effort."

His egotism stood out ad nauseam; his egregious vanity caused him to provide that all his property should be spent for a mausoleum for himself and dog "Hoboe," plans and specifications for which are completely

shown in the will-it even shows a diagram of his teeth; his great virtues were to be engraven on the monument in ten languages. That no one might contest because of any marital relations, he declares: "I never was married or even engaged to be

married. Nor ever gave to any female, old or young, married or single, maid or widow, white or any color, directly or indirectly, verbal or written, open or implied, any pledge, vow or promise of marriage whatsoever."

His will was contested by his brothers and declared void because of insane delusions.

Alfred Nobel, a Swedish inventor, died in Stockholm in 1896, leaving an estate of $9,000,000, the income of which, according to his will, is to be divided annually among

five persons most distinguished and deserving in physics, chemistry, medicine, literature, and in the cause of universal peace. Each prize is about $38,000. The first was given to Roentgen in 1901 for the X-ray. Mme. Curie obtained a joint prize with Bequerel in physics in 1903; she was favored with a full prize for chemistry in 1911, in relation to radium. In 1906 a peace prize was awarded to President Roosevelt. It is rather paradoxical that a promoter of world peace should be recognized, for Nobel made his fortune out of explosives.

The bequests of Cecil Rhodes are likely to have a more momentous effect upon nations than any other will. When a young man he went to South Africa. Through great industry and keen perception of golden opportunities, he amassed a fortune of many millions out of the Kimberley mines. As with Warren Hastings and Lord Clive, the extension and grandeur of the British Empire became an obsession with him. He was the greatest of all imperialists. He, therefore, determined to devote his vast fortune to continue his imperialistic influence to remote generations. Few men by their energy and intelligence have succeeded in writing their names across a great continent as Rhodes did in Rhodesia. On September 19, 1877, at the age of 22 years, he wrote his first will which evidences his world-dominating ambition for his native

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