Page:Harvard Law Review Volume 10.djvu/412

386 HARVARD LAW REVIEW, Although this case is not likely to come up in this country, where rent charges are almost unknown, it is of great importance in England, and it is curious that the exact point has never before been adjudicated upon. The ancient action at law for the non- payment of a rent charge was by assize of novel disseisin (Lumley on Annuities, 3S8), and when real actions were abolished it was held tha: debt would lie for the rent. Thomas v. Sylvester, L. R. 8 Q. 13. 368. But the parties liable remained as before, the terre-tenants, or those only who had an estate of freehold in the premises. The gran- tee of the rent, however, could distrain the goods of the tenant for years, or even of a stranger, on the land. Gilbert on Distress, 35. Property — Wills — Conditions in Restraint of Marriage. — /ie/d,thzt the rule that conditions in restraint of marriage are void does not apply to second mar- riages. Nerd V. Catron, 37 S. W. Rep. 551 (Tenn.). See Notes. Property — Wills — Executory Devise after Death " Without Issue." — A testator devised property to his son and his heirs, but provided that in case the son should die " without issue of his body, then the same to go to the heirs of N." In other parts of the will, the testator had provided for various children and grandchildren. Held, that the other provisions of the will and the use of the word " then " show that the testator meant by the words "without issue of his body," a definite failure of issue during his son's life. Such being the case, the devise to the heirs of N. is valid as an executory devise. Strain v. Sweeney et al., 45 N. E. Rep. 201 (111.). The above case illustrates the tendency of the American courts not to be bound by fixed rules of construction, and to follow a testator's supposed intention, even though the evidence of such intention is slight and of a conjectural character. See Jarman on Wills, 6th Am. ed., *I320, n. i. Property — Wills — " Survivor " construed as "Other." — A testator de- vised property to his wife for life, and on her death to his eight children " to them and their heirs and assigns forever, and in case of the death of any one of them without issue living at the time of his or her death, I do give and devise his or her share to the survivor or survivors." Held, the word "survivor " must be taken to have been used in its natural and ordinary sense, and not in the sense of the wcrd " other." Anderson V. Brown, 35 Atl. Rep. 937 (Md.). There are few American authorities on this point of construction, and those few treat the matter very summarily. The question, however, has arisen often in England, and the opinion of the court in the present case is based on the result of the English decisions. In 7 wist . Herbert, 28 L. T. (n. S. ) 489, Lord Selborne says, "The words 'survivor 'or * survivors ' are to be taken in their natural and primary sense, except when there is some reason which justly leads to another conclusion." See also Maden V. Taylor, 45 L. J. Ch. 569. A common case where "survivor" would generally be construed as " other" occurs when property is given to A and B in fee as tenants in common, with an executory devise to the survivor on the death of either without issue, and a further executory devise over on the death of both without issue. In such a case, if A should die first leaving issue, and then B should die without issue, the prop- erty would go to A's issue, although they are not technically included in the word "survivor"; otherwise there would be an intestacy, as the second executory devise was contingent on the death of both A and B without issue. See Smith v. Osborne, 6 H. L. 374- Public Officer — Liability for Public Moneys. — The defendant, a town supervisor, deposited with a firm of bankers, to his credit as supervisor, public moneys in his hands. The banking firm failed, and the money was lost. The defendant acted in good faith and without negligence. Action was brought by the county treasurer on the defendant's official bond. Held, on grounds of public policy, that the defendant, being under the duty to account as a debtor for the public funds in his custody, was liable. Tillinghast v. Merrill, 45 N. E. Rep. 375 (N. Y.), Gray, J. dissenting. Strangely enough this question is now passed upon for the first time by the New York Court of Appeals. The decision seems to reach a just result, and to be in accord with cases in other jurisdictions, which hold that a public officer, required to account for public moneys coming into his hands, is liable, even though the money be lost by theft, bank failure, or the like, without his fau't, unless relieved from this responsibility by statute. See a recent case, Fairchild v. Hedges, 44 Pac. Rep. 125; U. S.. Prescott, 3 How. 578 ; Inhabitants of Hancock v. Hazzard, 12 Cush. 112 ; State v. Harper, 6 Oh. St. 608; I Dillon on Munic Corp. § 237, n. 4; decisions cited in the principal case. But see also the dissenting opinion of Hoyt, C. J., in Fairchild v. Hedges, supra. The court, in the principal case, by stating the defendant's liability as that of a debtor, probably did not mean to implv that he was not a trustee. That a public officer, much like a del credere factor, is a trustee, although held to the strict liability