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RECENT CASES 289 C is such that B, as heir, would be entitled thereto, B cannot take both his legacy and C's intended portion, but must elect between the two. Van Dyke's Appeal, 60 Pa. St. 481. See 23 Harv. L. Rev. 138. Where the gift to C is invalid, by the lex domicilii, there is no will and consequently no election, Eearle v. Greenbank, i Ves. Sen. 298, 306; Sheddon v. Goodrich, 8 Ves. Jr. 481. See Boughton v. Boughton, 2 Ves. Sen. 12, 14. If, however, there is an express condition to elect, it is enforced. Boughton v. Boughton, supra. But where it is inoperative because of lex rei sitae of a foreign jurisdiction election is ap- plied. Dundas v. Dundas, 2 Dow & CI. 349; Brodie v. Barry, 2 Ves. & Beav. 127; Van Dyke's Appeal, supra. See 2 Dicey, Conelict of Laws, 2 ed., 778, 779. The election, however, when made, does not affect the title to the foreign realty. Bolton v. Bolton, 29 Ark. 418; Ramels v. Rowe, 92 C. C. A. 177, 166 Fed. 425; Palmer v. Voorhis, 35 Barb. (N. Y.) 479. See Story, Conflict of Laws, 8 ed., § 448. Yet it is generally enforced by the jurisdiction of the sitiis. Van Steenwyck v. Washburn, 59 Wis. 483, 17 N. W. 289; Martin v. Battey, 87 Kan. 582, 125 Pac. 88; wilson v. Cox, 49 Miss. 538. Contra, Ramels v. Rowe, supra. Some suggest that the doctrine rests simply on equitable principles. See 30 Harv. L. Rev. 649; i Jarman, Wills, 6 ed., 534; i Pome- ROY, EgmiY, 3 ed., § 465. But see Cooper v. Cooper, L. R. 7 H. L. 53, 70, This view would not change the result in the principal case, for in an analogous situation, where B's property was given to C, B had to elect. Nays v. Mor- dant, 2 Vern. 581; Cooper v. Cooper, supra; Havens v. Sackett, 15 N. Y. 365, But the prevailing view is that it is based on the presumed intention of the testator. Whistler v. Webster, 2 Ves. Jr. 366; Jackson v, Bevins, 74 Conn. 96, 49 Atl. 899; Cooper v. Cooper, supra; Havens v. Sackett, supra; Martin v, Battey, supra. See Haynes, "Outlines of Equity," 262 et seq., 23 Harv, L. Rev. 138. And it seems, as is said in the principal case, that election is merely the application of the lex domicilii imposing conditions on the receipt of the legacy over which it has power. Thus it is a mere rule of construction, en- forcing the presumed intention of the testator. Contracts — C6ntracts for the Benefit of a Third Person — Char- terp arties — right of charterers to recover commission from ship- OWNERS AS Trustees for Brokers. — A clause in a charterparty provided that a three per cent commission on the amount of hire should be paid to the brokers, "ship lost or not lost." No hire was earned, since the vessel was taken over by the French government. Held, that the charterers could recover the commission as trustees for the brokers. Walford v, Les AJfreteurs RSunis Societi Anonyme, [19 18] 2 K, B. 498. The English courts have in the past been obliged to stretch the law of trusts in order to avoid the consequences of their doctrine, which prevails in a small minority of American jurisdictions, that a person not a party to a contract cannot sue on a promise made for his benefit. Moore v. Darton, 4 DeG. & S. 517. See IS Harv. L. Rev. 767, 775. Various efforts have been made to evade the rule. See Mellen v. Whipple, i Gray (Mass.) 317, 323, The device of an implied trust has been employed in a nimiber of cases. Swan v. Snow, 11 Allen (Mass.) 224; Munroe v. Fireman's Relief Association, 19 R. I, 363, 34 Atl. 149; Lloyds V. Harper, 16 Ch. D. 290; In re Flavell, 25 Ch. D. 89; contra. West v, Houghton, 4 C. P. p. 197. See Cleaver v. Mutual Reserve Fund, [1892] i Q, B, 147 » 152. The principal case follows a similar decision in regard to charter parties handed down without opinion in 1853. Robertson v. Wait, 8 Exch. 299, Perhaps most of the English cases can be reconciled in result, if not on principle, on the ground that where a business relation exists between promisee and bene- ficiary an agreement by the promisee to act as trustee of his technical right of action can be implied, but not in cases of pure gifts. Certainly there is strong reason in business contracts to find some way of enforcement. The whole