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Page:Harvard Law Review Volume 1.djvu/414

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Deed to Wife delivered in Escrow.—A husband made a deed to his wife, and delivered it to a third person to be handed to the grantee on the death of the grantor. The husband subsequently recovered the deed from the holder, and destroyed it. Held, that the title passed to the wife on the delivery of the deed, subject to a life interest in the husband, and that the destruction of the deed was of no effect. Albright v. Albright, 36 N.W. Rep. 254.

The case follows 60 Wis. 377, which holds that a freehold may be granted to begin in futuro.

Equity Jurisdiction—Specific Performance of Negative Agreement.—The defendant, the Associated Press, agreed to furnish the plaintif with news by means of the defendant telegraph company, and to furnish news to no other paper in the plaintiff’s town. The bill asked an injunction to restrain the defendant from furnishing news to the other papers. The case was decided on the grounds of indefiniteness of the contract and want of jurisdiction; but the court discuss the cases of Kemble v. Kean, 6 Sim. 333, and Lumley v. Wagner, 1 DeG., M. & G. 604, and seem to prefer the latter, though they admit that the former represents the weight of American authority. A note collects cases. Iron Age Pub. Co. v. W.U. Tel. Co., 26 Cent. L.J. 125 (Ala.).

Evidence—Ambiguity in Will.—A bequest was left to “my step-son, H.S. Covert.” There was no such person; but the testatrix had a step-son, John Harvey Covert, who claimed under the will. The court, against the objection of the defendants, who were the brothers and sisters of the testatrix, permitted the scrivener who drew the will to testify that the testatrix directed im to prepare a will giving the property to her “step-son Harvey;” that he thought that Harvey’s initials were “H.S.,” and wrote them to designate him. Covert v. Sebern, 35 N.W. Rep. 636 (Iowa).

It seems, however, that the evidence should not have been admitted. The evidence merely amounts to a declaration by the testatrix that she intended to leave the property to Harvey. “The only case in which evidence of that kind can be received is where the description of the legatee, or of the thing bequeathed, is equally applicable in all its parts to two persons or two things.” L.R. 7 H.L. 364, 377. The court failed to distinguish between direct evidence of the testatrix’s intention and other extrinsic evidence tending to explain the ambiguity. See Button v. American Tract Soc., 23 Vt. 236; Bernasconi v. Atkinson, 10 Hare, 348; Drake v. Drake, 8 H.L.C. 172; Charter v. Charter, L.R. 7 H.L. 364.

Executor de son Tort.—The defendant took fifty cows of a deceased person’s estate under a bill of sale which was not sufficiently definite to pass the title. Held, that he may be charged as executor in his own wrong. His debt must be postponed in behalf of the other creditors. Baumgartner v. Haas, 11 Atl. Rep. 588 (Md.).

Found Property—Right to Possession.—Defendant found a walnut log entangled in a drift, and set it afloat. On account of the breaking of defendant’s boom, the log drifted upon plaintiff’s land. Defendant removed the log after identifying it. Replevin is brought against him. Held, the defendant is entitled against all persons except the original owner. The plaintiff’s riparian rights cannot help him. Deaderick v. Oulds, 5 S.W. Rep. 487 (Tenn.).

Garnishment—Bona Fide Purchaser.—The defendant was a purchaser for value without notice of a chattel from a garnishee. The plaintiff seeks to charge him for the conversion of it because of the garnishment in his favor. A demurrer was sustained, on the ground that the garnishment was not a lien upon the chattel. McGarry v. Lewis Coal Co., 6 S.W. Rep. 81 (Mo.).

Insurance, Fire—Right of Insurer when Insured Recovers from the one who caused the Fire.—An insurance company paid a loss caused by a gas explosion. The insured then recovered from the gas company. The insurers brought an action against him for money had and received to recover what they had paid on the policy. Allowed. Law Assurance Co. v. Oakley, 84 L.T. 280 (Q.B.D.).

Libel—Publication.—A servant on entering the services of a husband and wife handed to the latter a written character from a previous employer. He was dismissed. The husband indorsed on the character the reason for dismissal, and returned it to his wife, who gave it back to the servant. The servant brought an action for libel based on the alleged cause for dismissal, and it was held that there was no evidence of publication, since husband and wife are one person. Wennhak v. Morgan, 23 Law Jour. Notes of Cases, 31 (Q.B.D.).