Page:Harvard Law Review Volume 8.djvu/137

RECENT CASES. 121 voluntarily accompanying him. This, if true, would make the person voluntarily accompanying the driver responsible for the driver's negligence to third parties, as has been pointed out in the case of public conveyances in J/te Berniiia [1887], L. R. 12 Prob. Div. 58. But such a result was probably not intended by the court. It would seem better, in a jurisdiction where this matter comes up for the first time, to adopt the rule that only actual contributory negligence can defeat an action like the present. Torts — Conversion. — The plaintiff held a chattel mortgage on sheep belonging to X. The defendant " instigated " X to sell the sheep; which was done, and the defendant collected the money. Held, that the defendant was liable for conversion of the sheep. Cone v. Ivinson, 35 Pac. Rep. 933 (Wy.). The case seems to be a rather startling one. 'I'he line of reasoning adopted by the court was to the effect that by the mortgage plaintiff became the conditional owner of the sheep, and that when the defendant successfully instigated X to sell he was guilty of conversion to his own use. The citations on the point are the well known rules of criminal law to the effect that the procurer of a crime is liable as principal, also Hen- derson V. Foy, II So. Rep. 441 (Ala.), in support of the proposition that an analogous rule prevails in regard to civil wrongs. No express attempt is made to show that X acted as agent of the defendant, nor does it appear that the defendant ever had the sheep in his possession. Conaway, J., dissented and held that the proper remedy against the defendant would be to hold him liable as constructive trustee for the plaintiff for money received. It is submitted that the latter view is more in accordance with estab- lished usage. The majority of the court show great breadth and lenity in interpreting the pleadings in the case, on the ground that the statutes of the State have given them this power. Trusts — Trust for Maintenance and Support — Rights of Crkditors.— A devise to an executor in trust directed him to expend one half the net income " for the benefit of my son Cassius and his family " or in the executor's discretion to pay any part thereof to Cassius in cash. The children of the family to be educated and main- tained " on a scale comporting with their condition and rank in life ; " and if, in the exec- utor's judgment, the entire half of such income could not be thus expended judiciously, the surplus to be held in trust so that it might be applied, as the executor might deem best, for the benefit of " Cassius and his family." Held, that this was a gift for the mere maintenance and support of Cassius and his family collectively, and Cassius had no sejjarable interest in such income which could be subjected by his creditors. Brooks et al. v. Reynolds, 59 Fed. Rep. 923 (Ohio). This decision reverses the judgment given in this case by Jackson, J., in the Circuit Court {^Reynolds v. Hanna, 55 Fed. Hep. 783). The difference of opinion is founded more upon the construction of the will than upon the law applicable to cases of spend- thrift trusts. In the principal case the conclusion reached is that " the dominating purpose of the testator in founding this trust was to provide for the support and main- tenance of Cassius and his family collectively." The two important points would seem to be that the income was not to be paid into the hands of Cassius save in the absolute discretion of the trustee, but was to be expended by the trustee ; and again that it lay within the power of the trustee to expend only a part of the income at his discretion. By the construction given the will in the court below it was brought within the extreme English doctrine as to bequests for the maintenance and support of more than one cestui que trust. Page v. Way, 3 Beav. 20; Kearsleyv. Woodcock, 3 Hare, 185; Wallace V. Anderson, 16 Beav. 533 ; Lewin on Trusts, 7th ed. 91. But see Bell v. Watktns, 82 Ala. 512; Tolland Co. v. Underwood, 50 Conn. 493. Assuming that the court were correct in their construction of the will in the principal case it would seem that the decision is in accordance with the weight of authority both in England and in this country. Twopenny v. Payton, 10 Sim. 487 ; Codden v. Crowhurst, id. 642 ; Holmes v. Penny, 'I Kay & J. 90; Slattery v. Wason, 151 Mass. 266 ; Jourolomon v. Mussengill, 86 Tenn. 88 ; State v. Hicks, 92 Mo. 439. For an exhaustive and admirable discussion of this subject see Gray, Restraints on Alienation, §§ 134-277 a.