Note and Comment

When the Descendants of a Predeceased Legatee Will Not Take Under a Statute of Substitution - There are in most states statutes declaring that if a person named as legatee dies before the testator, his descendants shall take his share. Downing v. Nicholson, 115 Ia. 493; Strong v. Smith, 84 Mich. 567; x8 A. & E. ENCYC. Ol LAw, 2d Ed. 755. A common type is such as is found in the Civil Code of California, sec. 1310, viz.: When any estate is devised or bequeathed to any child or other relation of the testator and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator. Under this statute the Supreme Court of California has just held (two judges dissenting) that descendants of a legatee dying after the will was made, but before a codicil confirming it do not take because (I) the statute is one of distribution having reference only to conditions existing at the time of death of the maker of the will and not to the time of the decease of the original legatee, (2) because the republication subsequent to the death of the legatee made the lapsed legacy a void legacy, and (3) because the statute applied only to lapsed and not to void legacies. In re Matthews\u27 Estate, (Calif. z918), x69 Pac. 233

Note and Comment

The Right to Break a Contract - It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MIcr. L. Rv. 48o appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is given by Justice Holmes in his admirable address, TH4 PATH O* THE LAW (O HARV. L. Rzv. at p. 462). The passage is sufficiently picturesque to deserve quotation: Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,-and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many other cases, I am content to abide with him

Evolution of the patellar sesamoid bone in mammals

The patella is a sesamoid bone located in the major extensor tendon of the knee joint, in the hindlimb of many tetrapods. Although numerous aspects of knee morphology are ancient and conserved among most tetrapods, the evolutionary occurrence of an ossified patella is highly variable. Among extant (crown clade) groups it is found in most birds, most lizards, the monotreme mammals and almost all placental mammals, but it is absent in most marsupial mammals as well as many reptiles. Here, we integrate data from the literature and first-hand studies of fossil and recent skeletal remains to reconstruct the evolution of the mammalian patella. We infer that bony patellae most likely evolved between four and six times in crown group Mammalia: in monotremes, in the extinct multituberculates, in one or more stem-mammal genera outside of therian or eutherian mammals and up to three times in therian mammals. Furthermore, an ossified patella was lost several times in mammals, not including those with absent hindlimbs: once or more in marsupials (with some re-acquisition) and at least once in bats. Our inferences about patellar evolution in mammals are reciprocally informed by the existence of several human genetic conditions in which the patella is either absent or severely reduced. Clearly, development of the patella is under close genomic control, although its responsiveness to its mechanical environment is also important (and perhaps variable among taxa). Where a bony patella is present it plays an important role in hindlimb function, especially in resisting gravity by providing an enhanced lever system for the knee joint. Yet the evolutionary origins, persistence and modifications of a patella in diverse groups with widely varying habits and habitats—from digging to running to aquatic, small or large body sizes, bipeds or quadrupeds—remain complex and perplexing, impeding a conclusive synthesis of form, function, development and genetics across mammalian evolution. This meta-analysis takes an initial step toward such a synthesis by collating available data and elucidating areas of promising future inquiry

Note and Comment

When the Descendants of a Predeceased Legatee Will Not Take Under a Statute of Substitution - There are in most states statutes declaring that if a person named as legatee dies before the testator, his descendants shall take his share. Downing v. Nicholson, 115 Ia. 493; Strong v. Smith, 84 Mich. 567; x8 A. & E. ENCYC. Ol LAw, 2d Ed. 755. A common type is such as is found in the Civil Code of California, sec. 1310, viz.: When any estate is devised or bequeathed to any child or other relation of the testator and the devisee or legatee dies before the testator, leaving lineal descendants, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator. Under this statute the Supreme Court of California has just held (two judges dissenting) that descendants of a legatee dying after the will was made, but before a codicil confirming it do not take because (I) the statute is one of distribution having reference only to conditions existing at the time of death of the maker of the will and not to the time of the decease of the original legatee, (2) because the republication subsequent to the death of the legatee made the lapsed legacy a void legacy, and (3) because the statute applied only to lapsed and not to void legacies. In re Matthews\u27 Estate, (Calif. z918), x69 Pac. 233

Note and Comment

The Right to Break a Contract - It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MIcr. L. Rv. 48o appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is given by Justice Holmes in his admirable address, TH4 PATH O* THE LAW (O HARV. L. Rzv. at p. 462). The passage is sufficiently picturesque to deserve quotation: Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,-and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many other cases, I am content to abide with him