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Page:Harvard Law Review Volume 1.djvu/165

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was reserved. Pingrey v. Natl. Life Ins. Co., ll N. E. Rep. 562 (Mass.). The case collects the authorities upon this mooted question.

It would appear that there is difficulty in interpreting the taking out of an insurance policy into a declaration of trust. Furthermore, the only possible subject-matter of the trust would be the right of action on the policy. That right of action ceases when the payment of premiums on the policy cease. The premiums on the second policy were intended by both payer an receiver not to be on the original policy, but upon a substituted one. The decision of the Court in effect appropriates payments made for the benefit of one party to keep alive the rights of another. It is suggested that the rights of the parties are worked out more justly on the theory not of a declared, but of a constructive, trust. The contract of insurance is a unilateral one, the consideration of which is the payment of the first premium. The contract is subject to the condition subsequent, that unless the subsequent premiums are paid, the contract shall be of no effect. The effect of the contract is the immediate vesting in the beneficiary of a right to the insurance money on the death of the insured. This right is property, and is measured at any time by the “surrender value” of the policy. When the second policy is issued, the consideration paid for it is the surrender of the old one. The right of the new beneficiary is literally purchased with the right of the old beneficiary. This amounts to the same thing as if funds of the former beneficiary amounting to the surrender value of the first policy had been misappropriated and paid as a first premium on the second policy. On the principle of following trust property, the former beneficiary should entitled to that proportion of the insurance money which the surrender value of the first policy bears to the amount of premiums paid under the second policy.

Master and ServantDischarge without Notice.—The appointment of a manager and receiver by a Court of Chancery operates as a discharge of servants, and those entitled to notice have an action for wrongful dismissal. A servant who is retained by the manager at the same wages does not continue under the old contract, and may be dismissed without notice. — Reid v. Explosives Company, 19 Q. B. D. 264.

In this case the service under the manager continued through the period for which he was entitled to notice; but certain dicta of the judges seem to overlook the fact that the plaintiff would be entitled to nominal damages for dismissal by the appointment of a manager notwithstanding he has lost nothing.

MortgageAfter-acquired Property.—A mortgage purporting to cover “all moneys to which the mortgagor might during the continuance of the security become entitled under any will or other document,” will be enforced in equity as to a share of a testator’s residuary estate to which the mortgagor became entitled after the date of the mortgage, on the ground of specific performance of a contract. — In re Clarke, 35 Ch. D. 109.

MurderDeath Caused by Neglect.—Defendant was the husband of the deceased, who was weak, feeble, and unable to walk. Defendant left her exposed in the night-time to the cold and inclemency of the weather, though perfectly able to take care of her. From this exposure death ensued. Held — That this was murder under a statute providing that “murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned.” Territory v. Manion, 14 Pac. Rep. 637 (Mon. Ter.).

NegligenceBurden of Proof.—Plaintiff’s mare was run over by defendant’s train. Held, That when he had proved the facts of the killing, the burden was shifted to the defendant to show that it was not through negligence. Alabama cases the only authorities cited. South & North A. R. Co. v. Bees, 2 So. Rep. 752 (Ala.), Compare Early v. L. S. & M. S. R. Co., 66 Mich. 349.

NegligenceProximate Cause.—By the negligence of railroad employees a cow is thrown from the track, and bouncing, injures the plaintiff. Held, The negligence is a proximate cause of the injury and company is liable. Ala. G. S. R. Co. v. Chapman, 36 Alb. L. J. 222 (Ala.)

NoticeQuitclaim Deed.—The holder of a quitclaim deed is not a purchaser without notice of adverse equities concerning which he could obtain information by reasonable diligence, in searching and inquiry. In nearly all cases of transfer of land in Kansas warranty deeds are used; only in cases of doubt are quitclaim deeds resorted to. Johnson v. Williams, 36 Alb. L. J. 238 (Kan.).