Page:Harvard Law Review Volume 10.djvu/471

NOTES, 445 South Staffordshire Water Co. v. Sharman^ is inconsistent with certain well establislied principles of the law of larceny, and with such cases as Merry V. Green, -j M. Sl W. 623, and Durfee v. Jones, ii R. I. 588. See Clerk & Lindsell on Torts, 2d ed. , 686^^-686^. The decision in the case under discussion might possibly have been rested upon either one of two grounds not chosen by the court, — that the rings had become part of the realty, or that the defendant was under the duty of handing over to his master, the plaintiff company, any articles which he might find. Ordinarily, the rights of the finder are not affected by the relationship of master and servant, but, if the servant is hired for the very purpose of finding articles lost by third parties, the master, and not the servant, is entitled to them. See 18 Am. Law Register, 698, 699 : 19 Irish Law Times, 107. Considering the nature of the defendant's em- ployment in South Staffordshire Water Co. v. Sharman^ it is certainly diffi- cult to see why both the finding and removal of lost articles were not directly within the contemplation of the parties, and why therefore the company, as master, was not entitled to the rings. Even, however, if the defendant was not expressly employed to find lost chattels, the finding was clearly incidental to the main service ; and here also, on principle at least, the master's rights should prevail. Defeating a Testator's Wishes. — It would be difficult to find in the books a more extraordinary example of the frustration by the courts of a testator's wishes than is furnished by the case of Edson v. Bartow^ 41 N. Y. Supp. 723. This was an action brought by the next of kin to impose a trust on a bequest to the executors, and to declare that trust invalid. The terms of the bequest thus sought to be nullified were as follows : " If, for any reason any legacy . . . fail, ... I give and bequeath the amount which shall not !kke effect absolutely to the persons named as my executors. In the use of the same I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions ; leaving the same to them absolutely, and without limitation or restriction." The grounds advanced by the appellant for imposing the trust were that there was a secret understanding between testatrix and executors that the latter were to take, not beneficially, but subject to a legal obligation to carry out certain trusts expressly declared in previous sections of the will, and which in a former suit had been held void for indefiniteness. Fairchildw. Edson, 77 Hun, 298. If these trusts could be fastened on the apparently absolute bequest to the executors, they would of course be equally invalid in this form, and the next of kin would be let in. It must be admitted that the propositions of law necessary to support the appellant's position, while open to criticism in point of principle (see an article on the Failure of the " Tilden Trust," 5 Harvard Law Review, 389), are sus- tained by the authorities. Russell v. Jackson, 10 Hare, 204; O'Hara v. Dudley, 95 N. Y. 403. But did the facts of the case warrant the application of principles of questionable justice and expediency? In other words, what was the evidence of a secret undertaking on the part of the executors? They were three in number ; one of them, Mr. Parsons, drew up the will, while the other two knew nothing of its contents until after the death of the testatrix. All were men of integrity, and anxious to fulfil what they believed to be a moral obligation. The court properly held that, as by 59