WILLS-PRETERMITTED HEIR STATUTE-INCORPORATION BY REFERENCE

Plaintiff, adopted daughter of Mr. and Mrs. Burdick, deceased, left them some years before their deaths. Mr. Burdick provided in his will that plaintiff was to get two legacies, and Mrs. Burdick, who died after her husband, did not specifically mention plaintiff, but provided that the residue of her estate should be distributed as provided in her husband\u27s will. She subsequently revoked this provision by a codicil which gave the residue to one Langley. Plaintiff claimed a share of the estate under the Arkansas pretermitted child statute. Held, Mrs. Burdick\u27s reference to her husband\u27s will incorporated it into her own will, and this was sufficient mention of plaintiff to preclude her claiming, by virtue of the statute, a share, as pretermitted child, of her foster mother\u27s estate. The codicil revoking the incorporating provision did not serve to delete the will incorporated by reference, but left it as a provision of testatrix\u27s will which, although of no effect in passing property, was still a part of the will. Kinnear v. Langley, (Ark. 1946) 192 S.W. (2d) 978

CO-TENANCY-CONVEYANCE BY GRANTOR TO HIMSELF AND ANOTHER

Decedent, owning land and personal property thereon, executed a deed purporting to convey to herself and her son a life estate in the property as joint tenants during their joint lives and an absolute fee forever in the remainder to the survivor of them. . . Held, the deed created a tenancy in common in both of them during their lives and an estate in fee to the survivor. Hass v. Hass, (Wis. 1946) 21 N.W. (2d) 398

AGENCY-IMPLIED AGENCY-EFFECT OF PRINCIPAL\u27S ACQUIESCENCE IN AGENT\u27S COLLECTION WHERE SUCH AUTHORITY IS DENIED

Defendant\u27s predecessor gave a promissory note in payment for goods delivered to him by a local merchant, who advertised himself as plaintiff\u27s dealer. The note was payable at plaintiff\u27s home office, and the conditional sale contract also provided that the payments were to be made at that office. The first two payments were made to the dealer, and subsequently accepted by the plaintiff. The third and final payment was also made to the dealer but not received by the company. Suit was instituted for the amount of the final payment. Judgment rendered on demurrer for the plaintiff. Held, the court below should have submitted to the jury the question whether there was an implied agency. Campbell v. John Deere Plow Co., (Okla. 1946) 172 P. (2d) 319

CONTRACTS-BILLS AND NOTES-PRECEDENT DEBT AS CONSIDERATION IN THE LAW OF CONTRACTS AND NEGOTIABLE INSTRUMENTS

Today, there is little left of the sixteenth century rule that a precedent debt is consideration sufficient to ground an action of assumpsit. Modern cases, such as those where a debt is barred by the Statute of Limitations or discharged in bankruptcy, where it is historically applicable, generally do not rest upon that theory. As a practical matter, it makes little difference. These cases achieve a just result, and have been confined to standard fact situations. The doctrine seems clearly at variance with the rule that consideration cannot be past, and serves no useful purpose today. Cases where this problem arises in the general law of contracts are rare indeed, and cause the courts no trouble

FUTURE INTERESTS-RULE AGAINST PERPETUITIES-CONTINGENT REMAINDERS IN THE ALTERNATIVE-RULE OF LODDINGTON v. KIME-POWER OF APPOINTMENT

Prior to her marriage, settlor created a trust, reserving to herself a life estate, with general testamentary power of appointment over the corpus. The trust deed provided further that in default of appointment, or as to any part of said estate as to which the appointment may for any reason fail to take effect, the property was to remain in trust to pay one-half the income to her fiancé for life, if he should survive her, the other half to her children who survived or the issue of deceased children, and to pay over the principal when the youngest taker living at her death became twenty-one. If her fiancé did not survive her, his half was to go with the other half to her issue, as provided above. She married and survived her husband, dying in I935, and appointed by her will the trust property to her residuary estate, which was to be held in two trusts, one for each of her daughters who survived her, to pay the income to the daughters for life, then to each of their children for life, remainder over to the latter or their issue per stirpes on the death of the last to die of settlor\u27s grandchildren living at her death. However, the trust to Mabel, one of the daughters, provided that if she died with only one child, then half the corpus was to be held in trust for that child and the other half was to be paid into the trust for the other daughter, or if it were terminated at that time, then to be distributed in the same proportions as those in which that trust had been distributed. The will further provided that if either trust were held void as a violation of the rule against perpetuities, the principal was to be paid over to those at that time entitled by the provisions of the will to the income therefrom. At the settlor\u27s death, the question was before the court whether the invalid limitation to the grandchildren brought the trust within the alternative stated in the will, so that the trust should be terminated and the principal paid to the two daughters, recipients at that time of the income. It was then held that the alternative provisions of the will referred only to the future interests which might be invalid, and since the life estates were valid, in that they necessarily vested within lives in being and were severable from the subsequent limitations, they should be enforced, and the validity of the future interests should not be determined at that time. Mabel is now dead, leaving one child, and this action is to determine the validity of the limitations subsequent to her life estate. The Auditing Judge found the primary limitation to Mabel\u27s child void but upheld the secondary limitation of one-half of Mabel\u27s share to her sister for life, on the ground that it was vested, subject to be divested, not later than the death of the settlor. Held, both the primary and the secondary limitations violate the rule against perpetuities, and the property should pass according to the terms of the original trust deed providing for an alternative in case the appointment failed. McCreary\u27s Estate v. Pitts, (Pa. 1946) 47 A. (2d) 235

BANKRUPTCY - CHAPTER X REORGANIZATION - POWER OF THE TRUSTEE TO SUE IN A FOREIGN JURISDICTION

Plaintiffs, trustees appointed under Chapter X of the Bankruptcy Act, as amended, by the District Court for the Eastern District of Virginia, sued defendants in the District Court for the Southern District of New York to recover corporate assets, alleging a conspiracy to defraud the debtor corporation. Jurisdiction was rested, not upon diversity of citizenship, but upon sections 2 and 102 of the Bankruptcy Act, and certain sections of the Judicial Code, not pertinent here. The district court dismissed the action for want of jurisdiction. On appeal, held, reversed. The reorganization trustee under Chapter X may maintain an action in a federal district court other than the reorganization court to recover assets of the debtor corporation in its district without alleging separate grounds for federal jurisdiction. Austrian v. Williams, (C.C.A. 2d, 1946) 159 F. (2d) 67

WILLS-PRETERMITTED HEIR STATUTE-INCORPORATION BY REFERENCE

Plaintiff, adopted daughter of Mr. and Mrs. Burdick, deceased, left them some years before their deaths. Mr. Burdick provided in his will that plaintiff was to get two legacies, and Mrs. Burdick, who died after her husband, did not specifically mention plaintiff, but provided that the residue of her estate should be distributed as provided in her husband\u27s will. She subsequently revoked this provision by a codicil which gave the residue to one Langley. Plaintiff claimed a share of the estate under the Arkansas pretermitted child statute. Held, Mrs. Burdick\u27s reference to her husband\u27s will incorporated it into her own will, and this was sufficient mention of plaintiff to preclude her claiming, by virtue of the statute, a share, as pretermitted child, of her foster mother\u27s estate. The codicil revoking the incorporating provision did not serve to delete the will incorporated by reference, but left it as a provision of testatrix\u27s will which, although of no effect in passing property, was still a part of the will. Kinnear v. Langley, (Ark. 1946) 192 S.W. (2d) 978

CO-TENANCY-CONVEYANCE BY GRANTOR TO HIMSELF AND ANOTHER

Decedent, owning land and personal property thereon, executed a deed purporting to convey to herself and her son a life estate in the property as joint tenants during their joint lives and an absolute fee forever in the remainder to the survivor of them. . . Held, the deed created a tenancy in common in both of them during their lives and an estate in fee to the survivor. Hass v. Hass, (Wis. 1946) 21 N.W. (2d) 398

FUTURE INTERESTS-RULE AGAINST PERPETUITIES-CONTINGENT REMAINDERS IN THE ALTERNATIVE-RULE OF LODDINGTON v. KIME-POWER OF APPOINTMENT

Prior to her marriage, settlor created a trust, reserving to herself a life estate, with general testamentary power of appointment over the corpus. The trust deed provided further that in default of appointment, or as to any part of said estate as to which the appointment may for any reason fail to take effect, the property was to remain in trust to pay one-half the income to her fiancé for life, if he should survive her, the other half to her children who survived or the issue of deceased children, and to pay over the principal when the youngest taker living at her death became twenty-one. If her fiancé did not survive her, his half was to go with the other half to her issue, as provided above. She married and survived her husband, dying in I935, and appointed by her will the trust property to her residuary estate, which was to be held in two trusts, one for each of her daughters who survived her, to pay the income to the daughters for life, then to each of their children for life, remainder over to the latter or their issue per stirpes on the death of the last to die of settlor\u27s grandchildren living at her death. However, the trust to Mabel, one of the daughters, provided that if she died with only one child, then half the corpus was to be held in trust for that child and the other half was to be paid into the trust for the other daughter, or if it were terminated at that time, then to be distributed in the same proportions as those in which that trust had been distributed. The will further provided that if either trust were held void as a violation of the rule against perpetuities, the principal was to be paid over to those at that time entitled by the provisions of the will to the income therefrom. At the settlor\u27s death, the question was before the court whether the invalid limitation to the grandchildren brought the trust within the alternative stated in the will, so that the trust should be terminated and the principal paid to the two daughters, recipients at that time of the income. It was then held that the alternative provisions of the will referred only to the future interests which might be invalid, and since the life estates were valid, in that they necessarily vested within lives in being and were severable from the subsequent limitations, they should be enforced, and the validity of the future interests should not be determined at that time. Mabel is now dead, leaving one child, and this action is to determine the validity of the limitations subsequent to her life estate. The Auditing Judge found the primary limitation to Mabel\u27s child void but upheld the secondary limitation of one-half of Mabel\u27s share to her sister for life, on the ground that it was vested, subject to be divested, not later than the death of the settlor. Held, both the primary and the secondary limitations violate the rule against perpetuities, and the property should pass according to the terms of the original trust deed providing for an alternative in case the appointment failed. McCreary\u27s Estate v. Pitts, (Pa. 1946) 47 A. (2d) 235

BANKRUPTCY - CHAPTER X REORGANIZATION - POWER OF THE TRUSTEE TO SUE IN A FOREIGN JURISDICTION

Plaintiffs, trustees appointed under Chapter X of the Bankruptcy Act, as amended, by the District Court for the Eastern District of Virginia, sued defendants in the District Court for the Southern District of New York to recover corporate assets, alleging a conspiracy to defraud the debtor corporation. Jurisdiction was rested, not upon diversity of citizenship, but upon sections 2 and 102 of the Bankruptcy Act, and certain sections of the Judicial Code, not pertinent here. The district court dismissed the action for want of jurisdiction. On appeal, held, reversed. The reorganization trustee under Chapter X may maintain an action in a federal district court other than the reorganization court to recover assets of the debtor corporation in its district without alleging separate grounds for federal jurisdiction. Austrian v. Williams, (C.C.A. 2d, 1946) 159 F. (2d) 67