Page:Harvard Law Review Volume 10.djvu/342

3l6 HAkVARD LAW REVIEW. they might well deny that it had settled the rule. It remains to see whether that or the present case will establish a construction. Property — Wills— Executory Devise. — A testator devised real estate to his two grandsons in fee simple as tenants in common, but provided that " if either of them should depart this life without leaving living issue, then in that case the survivor, or the heirs of his body, shall inherit all the property and estate devised to both of them." Held, first, that each grandson takes a fee simple with an executory devise over contingent on a definite failure of issue ; second, that the contingency upon which the devise over depends need not occur during testator's lifetime, but is equally effectual whether it occurs before or after testator's death. First National Bank v. De Fauw, 75 Fed. Rep. 775. This result seems correct. The court state that their decision is opposed to a rule of law commonly held in England and the United States. This so called rule, which the court profess to disregard, may be briefly stated as follows. Where real estate is devised in such terms that the primary devisee takes an estate in fee simple, subject to a devise over on a certain contingency, such contingency is to be referred and confined to the lifetime of the testator, and is ineffectual unless it occurs during that time. There seems to be no necessity for such a rule except in a case where the executory devise is contingent on the death of the devisee in fee. In O' Ma honey v. Burdett, L. R. 7 H. L. 388, Lord Ilatherley said, "The period to which the executory devise will be referred will be the period of the death of the first taker, unless there are direc- tions in the will inconsistent with that supposition." See to the same effect, and in accord with the principal case, Button v. Thornton, 112 U. S. 526. Sales — Warranty — Parol Evidence. — f/eid, that evidence of a parol war- ranty made at the time of a written contract for the sale of chattels is not admissible in evidence unless the writing construed " according to the circumstances under which and the purposes for which it was executed " appears not to have been intended as a complete statement of the contract between the parties. Wheaton Co. v. Aoye Co., 68* N. W.854 (Minn.). The court follows Thompson v. Lihhey, 34 Minn. 374, in repudiating the doctrine that a warranty is a collateral agreement relating to a different subject matter from the con- tract of sale, and hence admissible whether the writing completely covers the contract of sale or not. This latter doctrine was suggested in Chapin v. Dohson, 78 N. Y. 74. But it guards particularly against a possible interpretation of Thompson v. Libbey, as supporting the strict view of Naiimberg v. Yotuig, 44 N. J. Law, 331, that the incom- pleteness of the written contract must appear on the face of the writing itself. The case agrees with Dnrkin v. Cobleigh, 156 Mass. 108, and, while it avoids the extreme ground of Chapin v. Dobson, it allows the court to put itself in the position of the par- ties in construing their contract. Trusts — Constructive. — One Crane, the holder of certain county warrants, sur- rendered them to defendant county in exchange for its bonds. These bonds he sold to plaintiff; subsequently they were declared invalid. On demurrer to plaintiff's bill, held, plaintiff is entitled in equity to enforce Crane's claim for a restitution of the war- rants. Irvine v. Board of Com'rs, 75 Fed. Rep. 765. Had Crane never parted with the ownership of the bonds, his right in equity to compel a restitution would be clear: " If a county obtain the money of others without authority, the law, independent of any statute, will compel restitution or compensation." Field, J., in Marsh v. Fulton County, 10 Wall. 676, 684. In fairness, it would seem that the obligation of the defendant county should not be diminished by reason of the trans- fer, and that, in the particular case suggested, the transferee should be entitled, in equity, to the entire beneficial interest in his transferrer's right against the defendant county. On authority, this cannot be regarded as well settled. Farkersbttrg v. Brown, 106 U. S. 500; Chapman v. Douglas County, 107 U. S. 360; contra, Ins. Co. v. Middle- port, 124 U. S. 534. Technically, even in the case suggested, the transferrer should be joined as party plaintiff or i>arty defendant. It is held that when a debt, secured by a mortgage, is assigned, the assignee is entitled to the benefit of the security, though ignorant of its existence when the debt was assigned. Jones on Mortgage, 5th ed., § 817. Trusts — Insolvency of Bank of Deposit. — Plaintiff deposited checks in the defendant bank, which, knowing its insolvency, credited plaintiff with them and for- warded them to a correspondent. The latter credited the checks to the defendant as cash. Held, that plaintiff might recover as a preferred claimant the i^iroceeds of such checks as had not been so credited to the defendant at the hour of failure, but had jio preferred claim to those credited before. Bruner v. Bank, 37 vS. W. Rep. 286 (Tenn.). There had been no settlement between the defendant and the correspondent involv-