Page:Harvard Law Review Volume 10.djvu/470

444 HARVARD LAW REVIEW, of a power of revocation throws upon the person seeking to uphold the settlement the burden of proving that such a power was intentionally excluded by the settlor, and that in the absence of such proof the set- tlement may be set aside." In the actual case the settlor was dead, and the court held that the plaintiff was not entitled to the bene- fit of the equitable right of tlie settlor in this respect ; notwithstand- ing that it fairly appeared from all the circumstances that there was no definite intent to make an irrevocable gift. The court seem to have considered that a voluntary setdement ought always to be con- sidered as revokable, unless it w^as shown positively that the settlor's attention was especially directed to the absence of the power of revo- cation, and he expressly declared his intention to exclude it. Such a very strict technical rule might indeed be fairly supposed to exist in England, from the cases of Coutts v. Ackworth^ L. R. 8 Eq. 589, and WoUasto7i V. Tribe, 9 Id. 44 ; but in later cases the court refused to go to such a length, as appears from the well considered opinion in Hall v. Hall, L. R. 8 Ch. 430. The state of the law since Hall v. Hall, and the leading American case of Garnsey v. Mundy, 24 N. J. Eq. 243, of about the same date, was admirably summed up in a note by Mr. Bispham, in 13 American Law Register, 349. Mr. Bispham reduced the rule to this form : " Where the deliberate intent to make an irrevocable gift does not appear, and where no motive for such a gift is shown, the absence of a power of revocation is prima facie evidence of mistake." What evi- dence will suffice to show a deliberate intent, or an adequate motive from which it may be inferred, must depend on the circumstances of each case, as also perhaps on the temper of the court. The Massachusetts court, as appears from the case of Taylor v. Buttrick, 165 Mass. 547, is little disposed to set aside voluntary settlements except for fraud or duress ; the absence of a power of revocation being considered in that jurisdiction as only slight evidence of mistake. Title to Lost Chattels. — A recent English decision of considerable importance in connection with the question as to the title to lost chattels, the real owner of which cannot be found, is South Staffordshire Water Co. V. Sharman, [1896] 2 Q. B. 44. In this case the defendant, a work- man, while engaged under the plaintiffs directions in cleaning out a pool of water on land owned and possessed by the plaintiffs, found two gold rings in the mud at the bottom of the pool. The real owner not appearing, it was held that the water company was entitled to the rings, the decision being rested upon the broad ground that, where chattels are found on private premises, the one in possession of such premises — unless he has invited the public to resort there — is presumed to have been in possession of the chattels themselves, even though he was unaware of their presence. For this proposition the court relies upon the theory advanced in Pollock and Wright's Essay on Possession, pp. 37-42. See also Holmes, The Common Law, pp. 206-246. Apparently, however, the position of the court is at variance with the decision in the leading case of Bridges v. Hawkesworth, 21 L. J. Q. B. 75, where the court held that one who found chattels upon a shop floor had a good title as against all but the true owner, it being immaterial whether the property was found on the public street or on private prem- ises. It is conceived, furthermore, that the reasoning of the court in