Page:Harvard Law Review Volume 8.djvu/135

RECENT CASES. II9 Van Brunt, P. J., dissents. His opinion, however, fails to meet the case. The ques- tion is only as to the reliability of information received by the attorney; and certainly this is greater in the case of the telephone than in that of the telegraph. The existence of an original dispatch cannot affect the *' information and belief " of the attorney who is to take immediate action upon the communication he receives. The decision of the majority seems sound. Personal Property — Construction of Marriage Settlement. — Bvamar- riage settlement, property was assigned to trustees to hold for the wife during her life, and at her death, unless she should otherwise appoint, for such persons as would have been entitled thereto under the statutes for the distribution of intestate's estates if she had died intestate " without having been married." The wife had issue by the marriage and died without having executed her power of appointment. NelJ, on the authority of Wilson V. Atkinson, decided in the Court of Appeal in 1864 and reported 4 D. J. & S. 455, that the clause " without having been married," as used in the instrument of settlement, did not shut out the children of the marriage, and that the funds were held by the trustees for them. Stoddart v. Saville, L. R. [1894] Ch. Div. 480. The obvious intention of the parties to the settlement was to exclude the husband only. This the court has accomplished by the above decision. Whether or not the terms of the instrument as expressed were susceptible of the interpretation here given them depends upon the decision of a very difficult question of construction upon which the court did not enter, since it considered itself bound to adopt the meaning of the phrase " without having been married " attributed to it in Wilson v. Atkinson by the Court of Appeal. It is submitted, however, that the court was not bound by that deci- sion ; that Wilson v. Atkinson was decided on peculiar facts, very different from those surrounding the case at bar ; and that no general rule of construction was there laid down. See Enimins v. Bradford, L. R. 13 Ch. Div. 413. Quasi Contracts — Claim against Estate — Services Rendered. — The plaintifTs insane sister was brought by her guardian to live with the plaintiff, who gave up her former employment and took charge of her sister, the guardian paying the board of both until the latter's death. The plaintiff put in a claim for services, against her sister's estate. Held, the plaintiff can recover in the absence of any express agreement if the circumstances show that compensation was expected. Fuller v. Mowry, 28 Atl. Rep. 606 (R. I.). This case is clearly within the authorities in America. Real Property — Breach of Covenant of Warranty. — Plaintiff conveyed land to the defendant by warranty deed, and, in consideration therefor, took his note and a mortgage of the premises. Held, in an action brought on the note and for the foreclosure of the mortgage, that the breach of the warranty was no defence so long as the defendant retained possession of the land and of the deed of conveyance. Black v. Thompson, 36 N. E. Rep. 643 (Ind.). The above decision is undoubtedly in accordance with the law. The defendant could set up a counter claim for all damages resulting from the breach of the warmnty, but had no general defence against an action for the purchase money for the land. After the delivery of the title-deed the purchaser's only right to relief from defects, either at law or in equity, depends, in the absence of fraud, solely upon the covenants which he has made. Rawle on Covenants (3d edition) p. 612. Real Property — Profit — To Dig Gravel. — By reservation in a deed from the common grantor, theplaintiff was entitled to take gravel from the defendant's land, and for several years had taken it from a certain gravel pit. Held, that the defendant had no right to prevent taking from this pit, though there were other places from which gravel might be taken with less damage to defendant's land. Corliss v. Dunning, 35 Pac. Rep. 1074 (Wash.). There is a suggestion by the court that if a specific place, equally convenient for the plaintiff, had been pointed out by the defendant, the case would have been different. But even subject to this limitation the decision is too broad. The plaintiff should be required to exercise his right in such place as least to injure the defendant, if it be reasonably convenient though not equally so. Real Property — Construction of Will — Extrinsic Evidence. — Testator left residue to " my niece E. W." Held, that the court could inform itself by extrinsic evidence that testator had no niece E. W., and that his wife had a legitimate grand- niece E. W. But an object for the testator's bounty having been thus procured, the court refused to receive evidence of surrounding circumstances tending to show that the wife's illegitimate grand-niece, also named E. W., who had lived with him and taken care of him, was the person meant. Ke Fish, Ingham v. Rayner. In the Court of Appeal (Lindley, Kay, A. L. Smith) 38 Sol. L. J. 307. See Notes.