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LEGACIES ADEMPTION EFFECT DISTRIBUTION SUBSIDIARY SHARES ON BEQUEST OF SHARES. - The testatrix in her will left a specific legacy of thirty shares of stock of the Standard Oil Company. Between the execution of the will and the death of the testatrix, the corporation, as required by the decree of the United States Supreme Court, distributed the stock of thirtynine subsidiary corporations, held by it, among its stockholders. The testatrix still retained the original thirty shares of stock at her death. A contest now arises between the specific legatee and the residuary legatee as to the shares of the subsidiary companies. Held, that the residuary legatee is entitled. In re Brann, 114 N. E. 404 (N. Y.).

The problem involved is not really one of ademption, for the original thirty shares still exist. Yet as the value of these shares largely depended upon the holding by the Standard Oil Company of the shares of the subsidiary companies, whose ownership is now in question, the analogy is close. Originally the ademption of a legacy depended upon the intention of the testator. It was accordingly held that a change accomplished by operation of law would not adeem a legacy. Partridge v. Partridge, Cas. t. Talb. 226; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258. But it is now well settled that the intention of the testator no longer governs and that the specific thing bequeathed must still exist. In re Bridle, 4 C. P. D. 336; Snowden v. Banks, 9 Ired. (N. C.) 373; Harrison v. Jackson, 7 Ch. Div. 339; Ametrano v. Downs, 170 N. Y. 388, 63 N. E. 340. Nevertheless, a legacy is not adeemed if the alteration is purely formal. Oakes v. Oakes, 9 Hare 666. Such is the case where there is a mere subdivision of a company's shares. Re Greenberry, 55 Sol. J. 633. But the distribution of some of the property of a corporation even if that property be shares in subsidiary companies, can hardly be a mere subdivision of the original shares. Cf. In re Slater, (1907] 1 Ch. 665. But see Re Cliford's Estate, 56 Sol. J. 91; In re Peirce, 25 R. I. 34, 54 Atl. 588. Such distribution in fact much more closely resembles the declaration of an extraordinary dividend. Cf. Bailey v. Railroad Co., 22 Wall. (U. S.) 604; Brundage v. Brundage, 60 N. Y. 544.


· The plaintiff sued for a share in the deceased's estate as surviving widow. The defendant was the deceased's wife by a ceremonial marriage performed after deceased's separation from the plaintiff. It appeared that the marriage to the plaintiff was ceremonial, that the marriage to the defendant, also ceremonial, was followed by a long period of cohabitation with the birth of ten children, and that plaintiff had remarried after deceased left her, believing him dead. The plaintiff offered no evidence to disprove the termination of the first marriage by divorce. Held, that the burden was on the plaintiff to negative the dissolution of the first marriage, and that the burden had not been met. In re Hughson's Estate: Brigham v. Hughson, 160 Pac. 548 (Cal.).

For a discussion of this case, see Notes, p. 500.

MASTER AND SERVANT WORKMEN'S COMPENSATION – EFFECT OF NATURAL DEATH OF EMPLOYEE UPON PAYMENT OF INSTALLMENTS Not YET DUE. — Deceased was injured while in the employ of the defendant. Compensation for one hundred and twenty-eight weeks at a weekly rate was awarded him under the Workmen's Compensation Act. Consol. Laws N. Y., SUPP. 1915, 741. He died before the termination of that period, from causes having no connection with the accident. His representatives claim the value of the payments that have come due since his death. Held, that no more payments need be made. Wozneak v. Buffalo Gas Co., 161 N. Y. Supp. 675.

No provision of the statute covers the case explicitly. The argument must then be from the general purpose of the legislation. If workmen's compensation gives damages for physical hurt suffered, the damage has accrued and the right


to compensation become vested, so that, under survival statutes, it will pass to the personal representative of the deceased. If the compensation is for wage-loss resulting from the injury, evidently the loss ceases and the payments stop when the workman dies from other causes. The common statement is that the compensation is for wage-loss, not for suffering. See P. Tecumseh Sherman, “The Consequences of Accidents under Workmen's Compensation Laws,” 64 U. PA. L. REV. 417. In favor of this are the usual provisions for an amount of compensation related to the loss of wages; opposed to it are the provisions whereby permanent injury is compensated by payments for a fixed period that may be shorter than the life of the employee. In the principal case the decision was more easily reached because of a provision that if the payments were commuted to a lump sum regard should be had for “life contingencies.” ConSOL. Laws N. Y., SUPP. 1914, 1004. An analogous result has been reached under the Massachusetts statute in a case where on the death of a workman from an accident, compensation by installments for three hundred weeks was decreed to his dependent mother, and the mother died before the end of the three hundred weeks. Murphy's Case, 224 Mass. 592, 133 N. E. 283. Contra, State ex rel. Munding v. Industrial Commission, 92 Ohio St. 434, 111 N. E. 299. Cf. United Collieries, Ltd. v. Simpson, (1909) A. C. 383. MORTGAGES — ASSIGNMENT — INFORMAL ASSIGNMENT OF POWER OF SALE.

Plaintiff executed a deed of land as security for a promissory note under sections 3306 and 3310 of the Code of Georgia. These sections provide for an absolute title in the grantee in such cases with an equity of redemption in the grantor. The deed contained a power of sale. The note was transferred without recourse to defendant, and the deed was delivered to him with a written transfer on the back. The plaintiff seeks an injunction to restrain the defendant from executing the power of sale. Decreed, that the injunction be granted. McCook v. Kennedy, 90 S. E. 713 (Ga.).

The court argues that the defendant, not having the legal title, cannot execute the power of sale. But the defendant has the equitable title, and all the benefits appurtenant to the land are his in equity. Cutler v. Haven, 8 Pick. (Mass.) 490; Olds v. Cummings, 31 III. 188. It would seem then that equity would create some method of giving him these benefits. The problem of the assignment of choses in action was solved by giving the assignee an equitable right and a fictitious power of agency. Equity has already given the assignee of a mortgage as security an equitable title, and it might also give him a fictitious power of agency to execute the power of sale. Such an agency could be created without a deed. Lyon v. Pollock, 99 U. S. 668. Upon exercising the power for his own benefit he would put his equitable title in the purchaser, and bind the mortgagee, his principal, to make a conveyance of the legal title. The courts, however, have been hostile to these powers of sale. Thus a power of sale unless made out to the mortgagee and his "assigns” may not even be executed by a legal assignee of the mortgage. Flower v. Elwood, 66 Ill. 438. But even when the word "assigns” is included the policy of the law is to be so jealous of a right of redemption that "assigns” is construed as meaning legal assigns only. Dameron v. Eskridge, 104 N. C. 621, 10 S. E. 700; Bradford v. King, 18 R. I. 743, 31 Atl. 166.

MORTGAGES RIGHTS OF MORTGAGEE — DEED OF TRUST PURPORTING TO SECURE JOINT RIGHTS AS SECURITY FOR CLAIMS HELD SEVERALLY. — The owner of property executed a deed of trust to secure promissory notes made by him to joint payees, in consideration of a parol contract. The transaction was intended to secure certain claims which were to arise in the payees severally. The payees did not negotiate the notes, deeming them, with the deed of trust, sufficient for their protection in the execution of the contract. They now seek indemnity under the deed of trust for their several claims. Held, that these


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claims were within the security afforded. Simms v. Ramsey, 90 S. E. 842 (W. Va.).

A mortgage may be made to joint mortgagees to secure claims to which they are severally entitled. Adams v. Niemann, 46 Mich. 135, 8 N. W.719; Sumner v. Dalton, 58 N. H. 295. It is frequently held, however, that they take, not as joint tenants, but as tenants in common, each getting an interest in proportion to his claim. Brown v. Bates, 55 Me. 520; Farwell v. Warren, 76 Wis. 527, 45 N. W. 217. See JONES, MORTGAGES, § 135. Such a mortgage affords adequate protection, since it may only be discharged in conformity to the rights secured. Waterman v. Webster, 108 N. Y. 157, 15 N. E. 380. The principal case raises a further complication in the existence of two distinct sets of rights. The trust deed purports to secure joint notes, while the ultimate claims sought to be protected are several. Now anything which extinguishes the obligation actually secured would also discharge the mortgage or trust deed, and here consequently the security for the several claims. Atwater v. Underhill, 22 N. J. Eq. 599. Thus either joint payee can give an effective release of the joint claim, upon payment to him alone. Wright v. Ware, 58 Ga. 150. Or if one died, the survivor would have a clear title to the joint claim, and so to the security. Blake v. Sanborn, 8 Gray (Mass.) 154. Such a situation is guarded against by considering a fiduciary relationship to have been established between the two sets of claims, the joint set substantially being security for the several. Thus the obligees in their joint capacity could be said to hold the joint claims in trust for themselves as several obligees. But see Bates v. Coe, 10 Conn. 280, 293.


JOINDER OF PRINCIPAL AND WILFUL AGENT. The plaintiff sued a railroad and its engineer jointly, for personal injuries. The engineer was charged with wanton or wilful misconduct. The defendants demurred. Held, that the servant being liable in trespass, and the railroad in case, there was fatal misjoinder of parties. Louisville & Nashville Railroad Co. v. Abernethy, 73 So. 103 (Ala.).

Case has generally been held the proper form of action against a master for his servants' wanton acts, even though the servants' liability lay in trespass. Mossemar v. Callendar, etc. Co., 24 R. I. 168, 52 Atl. 806. Contra, Brokaw v. New Jersey R., etc. Co., 32 N. J. L. 328. Cf. Hewitt v. Swift, 3 Allen (Mass.) 425. Courts were formerly inclined to consider that the master's liability for the acts of his servant vas original, not imputed. Therefore, they argued, case properly lay, for an original liability seemed indirect. Cf. Sharrod v. London, etc. Ry. Co., 4 Exch. 580, 585; Southern Bell Telephone, etc. Co. v. Francis, 109

4 Ala. 224, 234, 19 So. 1, 4. The present tendency is to consider the liability imputed. It must therefore be of the same sort as the servant's, as if the master had acted himself. See Schumpert v. Southern Ry. Co., 65 S. C. 332, 337, 43 S. E. 813, 815. Yet the courts have not changed their position. But no matter what the master's liability may be, the propriety of joining master and servant is still in question. The courts are squarely split. See Alabama Southern Ry. v. Thompson, 200 U. S. 206, 218. Some disallow joinder, even where both are liable in case. Parsons v. Winchell, 5 Cush. (Mass.) 592; Warax v. Cincinnati,

5 etc. R. Co., 72 Fed. 637. Contra, Greenberg v. Whitcomb Lumber Co., 90 Wis. 225, 63 N. W. 93. For it is felt that only real actors can be joint tortfeasors. On the other hand, joinder was allowed by a court conceiving the master's imputed liability to lie in trespass. Brokaw v. New Jersey R., etc. Co., supra. Where, as in the principal decision, the respective liabilities are in case and trespass, misjoinder is more arguable. The state code allowed all actions ex delictu to be joined, but did not abolish forms of action. Now the diverse liability implied by the diverse forms of action has been considered fatal to joinder of parties. Gustafson v. Chicago, etc. Ry. Co., 128 Fed. 85; Southern Ry. Co. v. Hanby, 166 Ala. 641, 52 So. 334. But where the code abolished forms of action, joinder was held to have become proper. Schumpert v. Southern Ry. Co., supra; Howe v. Northern Pacific R. Co., 30 Wash. 569, 70 Pac. 1100. It seems highly technical to make the propriety of joinder of parties depend on forms of action. The liability of master and servant is essentially joint, even if the theory of identification be rejected. It seems more joint than that of accidentally concurring tortfeasors. And the practical convenience of joinder should override technicalities.

PROXIMATE CAUSE — INTERVENING CAUSES — INTERVENTION OF NEGLIGENT ACT OF THIRD PARTY. — The defendant, a wholesale dealer in oils, supplied a retail dealer with a mixture of gasoline and kerosene instead of pure kerosene. The retail dealer discovered that the oil was not all right, and notified the defendant, who promised to take the oil back. Relying on certain tests, however, the retailer decided that two of the cans contained all kerosene, and negligently sold them to the plaintiff, who, without contributory negligence, sustained injuries from an explosion of the oil. Held, that the defendant is not liable. Catlin v. Union Oil Co. of California, 161 Pac. 9 (Cal.).

In most jurisdictions the liability of the vendor of an article is limited to the first vendee. Winterbottom v. Wright, 10 M. & W. 109; Heiser v. Kingsland Co., 110 Mo. 605, 19 S. W. 630; Kuelling v. Roderick Mfg. Co., 88 App. Div. 309, 84 N. Y. Supp. 622. Contra, McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050. See 29 HARV. L. Rev. 866. But where the article is of an intrinsically dangerous nature, an exception is made, and the vendor is held liable for negligence to sub-vendees. Bishop v. Weber, 139 Mass. 411, I N. E. 15 Faro v. Remington Arms Co., 67 App. Div. 414, 73 N. Y. Supp. 788. Analogous cases justify the court's assumption in the principal case that gasoline is such a dangerous article. Standard Oil Co. v. Wakefield, 102 Ga. 824, 47 S. E. 830; Riggs v. Standard Oil Co., 130 Fed. 199. But cf. Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400. The question of proximate cause, however, remains to be dealt with. The act of the retailer, which was unforeseeable, considering that he knew there was something wrong with the oil, intervened and destroyed the proximity of causation. Or, to look at it another way, the risk created by the defendant came to an end when the nature of the oil was discovered, and the risk from which the plaintiff suffered was a new risk, created by the negligent act of the retailer. Hendrickson v. Commonwealth, 85 Ky. 281, 3 S. W. 166; Chaddock v. Plummer, 88 Mich. 225, 50 N. W. 135; Pittsburgh Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647.

SURETYSHIP - SURETY'S DEFENSES EFFECT OF NOTICE BY SURETY THAT HE WILL NOT REMAIN LIABLE. - In July, 1911, the defendant became surety on a bond given by a collector to his principal. In March, 1912, the defendant notified the principal that he would no longer remain liable. Later the principal seeks to recover from the defendant for defaults of the collector. Held, that he may recover only for the defaults occurring before and within a reasonable time after the notice. Ricketson v. Nizolte, 98 Atl. 801 (Vt.).

For a discussion of the principles involved, see Notes, p. 494.

TAXATION — FEDERAL CORPORATION TAX — INCOME OF A MINING ComPANY. Corporations were formed to hold certain lands and distribute among the stockholders the proceeds of any disposition thereof. Part of the property, containing ore deposits, was leased, the lessees to pay royalties on all ore mined. Under the Corporation Tax Law of 1909 (36 STAT. AT L. 112) the companies were assessed upon the aggregate royalties as their gross income and no deductions for depreciation were made on account of the depletion of the ore deposits. Suit is brought to recover these taxes, paid under protest. Held, that no recovery should be allowed. Von Baumbach v. Sargent Land Co., U. S. Sup. Ct., Oct. Term, 1916, No. 286.


The Act provides for a tax on the net income of all corporations organized for profit and engaged in business, such net income to be ascertained by deducting from the gross income all losses, expenses, etc., including a reasonable allowance for depreciation of property. See U. S. COMP. Stat., 1913, 88 6300, 6301. It is manifestly immaterial to the character of the royalties whether the owner of a mine himself extracts and disposes of the minerals or grants to another the right to do so. So the question is whether the value of the ore as it leaves the mine is income or converted capital and hence depreciation. It is submitted that, since part of the capital of a mine is its ore, the ore subtracted represents converted capital. Hence only the market value of the product minus the value of the ore in place and the cost of mining represents income. But the decisions now run contra. State v. Royal Mineral Association, 156 N. W. 128 (Minn.); Raynolds v. Hanna, 55 Fed. 783; Stratton's Independence v. Howbert, 231 U. S. 399. See Stanton v. Baltic Mining Co., 240 U. S. 103, 114. It would follow that the ore extracted is an exhaustion of the capital and so depreciation. United States v. Nipissing Mines Co., 202 Fed. 803. See MACHEN, THE FEDERAL CORPORATION Tax Law, $ 57. It seems significant that in the Income Tax section of the Tariff Act of 1916 and in the Income Tax Law, Congress specifically provided an allowance for the depletion of mines. See 38 STAT. AT L. 166, 167; 1915-1916 STAT. 756, 759. But there is no more reason to suppose that Congress did not intend the word "depreciation” in the former act to include such depletion than to conclude that the later acts seek to be more concise in expressly including what the former implied.

TAXATION — FRANCHISE TAX ON CORPORATION INCORPORATED IN MORE THAN ONE STATE — DUE PROCESS. - The plaintiff railroad was incorporated in and had lines running through Alabama, Tennessee, and Mississippi. Alabama levied upon corporations organized under her laws a franchise tax, based upon the total paid-up capital stock of such corporations. Held, the plaintiff must pay the tax. Kansas City, M. & B. R. Co. v. Stiles, 37 Sup. Ct. Rep. 58.

For a discussion of this case, see Notes, p. 510.

TORTS — DESTRUCTION OF EVIDENCE – EFFECT OF PROBATE OF Will. — The deceased left a will containing a legacy for the plaintiff. The defendants maliciously destroyed parts of the document with the intent to deprive the plaintiff of the legacy. As a result, a prior will was probated and the plaintiff has not enough evidence to prove the entire contents of the second will

. She sues in tort alleging these facts, to which the defendants demur. Held, that the demurrer be overruled. Dulin v. Bailey, 90 S. E. 689 (N. C.).

It is a tort principle that an intentional injury without justification creates liability. So it would seem sufficient, to support the plaintiff's action, to proceed on general lines, asserting the loss of a legacy by the defendants' intentional wrongful act. But the same result may be reached on the theory of the violation of a specific right, i.e., to evidence. For that there is an actionable right to evidence is established. Davis v. Lovell, 8 L. J. Ex. (N. S.) 152; Lane v. Cole, 12 Barb. (N. Y.) 680. On this theory it is not even necessary to prove the loss of the legacy - a substantial loss of evidence will itself support the action. Cowling v. Coxe, 18 L. J. C. P. (N. s.) 100; Lane v. Cole, supra. But the desired damages will certainly be the amount of the bequest. Both theories are thus faced with the necessity of proving what the probate court has apparently denied — the right to a bequest under what is claimed to be the real will of the testator. So the question arises why the decision of the probate court is not res judicata of the plaintiff's present contention. To procure the probate of a will requires the proof of the entire contents of the will by clear and satisfactory evidence. See In re Hedge peth's Will, 150 N. C. 245, 249, 250, 63 S. E. 1025, 1026, 1027. WIGMORE, EVIDENCE, $ 2106. But a legatee may fail to


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