tendency, however, in some American decisions to extend the limits of the invitee relationship. Atlanta Cotton Seed Oil Co. v. Coffey, 80 Ga. 145, 4 S. E. 759; Illinois Central R. Co. v. Hopkins, 200 Ill. 122, 65 N. E. 656.

CONSTRUCTION

A

DEEDS -LIFE ESTATE RAISED BY IMPLICATION. settlor by deed assigned the residue of a long term for years to trustees, to the use of A. and B., husband and wife, "for and during the term of their lives as tenants in common"; and "after the decease of the survivor" to the use of their children. A. died leaving children. Held, that B. was entitled during the remainder of her life to the whole of the net income from the property. In re Stanley's Settlement, 51 L. J. 206 (Ch. D.).

The court here raised a life-estate in the survivor by implication to fill the unintentional gap in the limitations. Such cross-limitations to the survivor have often been implied in the case of wills. Ashley v. Ashley, 6 Sim. 358; Draycott v. Wood, 8 L. T. (N. s.) 304. See In re Hudson, 20 Ch. D. 406, 415. But as to deeds, the authorities have declared that no estate or trust can arise by implication. See NORTON, DEEDS, 377; FEARNE, CONTINGENT REMAINDERS, 9 ed., 49. As regards legal estates, the cases bear them out. Cole v. Levingston, 1 Vent. 224; Doe v. Dorvell, 5 T. R. 518. See I JARMAN, WILLS, 6 ed., 660. In equity, however, there have been some decisions in which estates have been implied as in the principal case. Tunstall v. Trappes, 3 Sim. 286; Allin v. Crawshay, 9 Hare 382; In re Akeroyd's Settlement, [1893] 3 Ch. 363. But see Mara v. Browne, [1895] 2 Ch. 69, 81. It is difficult to see what justification there can be in these distinctions between wills and deeds, and between law and equity. If in a deed the intent of a settlor is clear beyond a reasonable doubt, a life interest in the survivor should certainly be implied. For, after all, the ultimate aim of the judicial construction of deeds, as of wills, is to carry out the intention of the parties. Temple's Adm'r. v. Wright, 94 Va. 338, 26 S. E. 844. See Ballard v. Louisville & N. R. Co., 9 Ky. L. R. 523, 524, 5 S. W. 484, 485; Walton v. Drumtra, 152 Mo. 489, 497, 54 S. W. 233, 235; DEVLIN, DEEDS, 3 ed., § 844 a.

COMPENSATION FOR LOSS OF PROF

EMINENT DOMAIN COMPENSATION ITS CAUSED BY GRADING STREET. -A garage company held a lease of certain premises from year to year. Street grading done by the city cut off access to the garage for four months, causing a loss of profits to the company during that time. No evidence tended to show the leasehold less valuable after the grading than before. Act XVI, § 8, of the Constitution of Pennsylvania provides that just compensation be made for property "taken, injured or destroyed" by municipal corporations in the construction of highways. The company seeks to recover damages from the city. Held, that it may not recover. Iron City Automobile Co. v. City of Pittsburg, 98 Atl. 679 (Pa.).

Injury caused an abutting owner by the regrading of a city's streets is not a "taking" under the ordinary constitutional provision against taking private property for public use without just compensation. Therefore, if the grading is done under authority of law and with due care, in the absence of statute the owner is entitled to no compensation. Callender v. Marsh, 1 Pick. (Mass.) 417, 430; Radcliff's Executors v. Mayor, etc. of Brooklyn, 4 N. Y. 195, 203. See LEWIS, EMINENT DOMAIN, 3 ed., § 133. But under constitutional provisions, such as in the principal case, municipalities must make compensation for injuries caused abutting property. City of Bloomington v. Pollock, 141 Ill. 346, 31 N. E. 146; Sheehy v. Kansas City Cable Ry. Co., 94 Mo. 574, 7 S. W. 579. See City of Atlanta v. Green, 67 Ga. 386; LEWIS, EMINENT DOMAIN, 3 ed., §§ 346, 348. The cases, however, are in hopeless conflict as to what elements determine the amount of the owner's damage. SEDGWICK, DAMAGES, 9 ed., § 1170. In general, where a leasehold is damaged, the measure of damages is the difference between the fair market value of the leasehold interest before

and after the construction of the improvement. Philadelphia & R. R. Co. v. Getz, 113 Pa. St. 214, 6 Atl. 356; Mayor, etc. of Baltimore v. Rice, 73 Md. 307, 21 Atl. 181. So, apart from the language of particular statutes the lessee cannot recover for permanent injuries to business. Chambers v. South Chester, 140 Pa. St. 510, 21 Atl. 409. A fortiori, he cannot recover for mere temporary loss of profits suffered during the progress of the improvements. Plant v. Long Island R. Co., 10 Barb. (N. Y.) 26. But evidence of permanent injury to business has been held to be admissible, not as specific items of damage, but as an element in determining the reduced market value. Laflin v. Chicago, etc. R. Co., 33 Fed. 415. See LEWIS, EMINENT DOMAIN, 3 ed., § 342; 3 SEDGWICK, DAMAGES, 9 ed., § 1169. Temporary loss of profits, however, does not tend to show a reduced market value of the leasehold. Consequently the principal case seems correct in allowing no recovery.

EQUITY - JURISDICTION DAMAGES AWARDED AFTER EQUITABLE REMEDY HAS BECOME UNDESIRABLE. - The plaintiffs, induced by fraudulent representations, purchased from the defendant all the shares of capital stock in a theater company. The plaintiffs sued in equity, praying for a rescission of the sale, and damages. But at the hearing, the plaintiffs having in the meantime made the business a successful one, disclaimed a desire to have the transaction rescinded and prayed for damages. Decreed, that the bill will be retained to award damages. Rosen v. Mayer, 54 Bk. & Tr. 519 (Mass.).

A court of equity will not generally retain a bill to assess compensatory damages unless given in addition or as an incident to some special equitable relief. Green v. Stewart, 19 App. Div. 201, 45 N. Y. Supp. 982; Collier v. Collier, 33 Atl. 193 (N. J. Eq.); Alger v. Anderson, 92 Fed. 696. See I POMEROY EQ. JUR., 3 ed., § 237. But equity will retain the bill and award damages where the special relief which was originally possible becomes impracticable after the bringing of the suit. Grubb v. Starkey, 90 Va. 831, 20 S. E. 784; Holland v. Anderson, 38 Mo. 55; Moon v. Nat. Wall-Plaster Co., 31 Misc. 631, 66 N. Y. Supp. 33. See Morss v. Elmendorf, 11 Paige (N. Y.) 277, 288. Indeed such relief is often given though the special relief sought became impracticable before the bringing of the suit, provided the plaintiff, when he brought his bill, was ignorant of that fact. Milkman v. Ordway, 106 Mass. 232; Tenney v. State Bank of Wisconsin, 20 Wis. 152. The principle underlying this class of cases seems to be that where the plaintiff has come into equity in good faith, asking for a distinctively equitable remedy, to which he was once entitled, the bill should not be dismissed even though damages are found to be the only remedy. This doctrine commends itself as in accord with the growing tendency of equity to give complete relief where its jurisdiction has once been invoked. In the present case the fact that the plaintiff himself has made the equitable remedy no longer needed should not work to his disadvantage. There is danger that a plaintiff, who wants damages, may get into equity by a pretense of originally seeking equitable relief, and thus deprive the defendant of his right to a jury. But this should rather cause equity carefully to scrutinize the bonâ fides of the plaintiff's position than to deny relief in every case.

EQUITY - JURISDICTION RESTRAINT OF INJURIOUS FALSEHOODS. - At an early stage of a political campaign the plaintiff publicly refused to be a candidate for governor. He later changed his mind and actively sought the nomination. On the day preceding the primary elections the defendant newspaper published his two months' old letter of declination under staring headlines announcing that plaintiff had decided not to run. It was admitted that the defendant acted in bad faith. The trial court enjoined a repetition of the publication. Held, that the restraining order be reversed and dismissed. Howell v. Bee Pub. Co., 158 N. W. 358 (Neb.).

For a discussion of this case, see NOTES, p. 172.

EXECUTORS - TRUSTEES

- DOUBLE COMMISSIONS. - The executors under a will were directed, among other things, to invest the estate and to turn over to a legatee the income and parts of the corpus of the estate at stated intervals during a period of more than twenty years. The will made no division between their trust duties and their functions as executors. A subsequent court decree allowed the executors to continue as such with respect to the realty, and as trustees with respect to the personalty. Held, that the executors were not entitled to double commissions on the transfer to themselves as trustees of the proceeds from the sale of realty. In re Ziegler, 218 N. Y. 544, 113 N. E. 553.

In New York the rule is that double commissions will not generally be granted to an executor who also serves as trustee. Valentine v. Valentine, 2 Barb. Ch. 430; McAlpine v. Potter, 126 N. Y. 285, 27 N. E. 475. Nor will a court decree terminating the executorship and declaring a continuation of the duties as trustee affect the rule. Johnson v. Lawrence, 95 N. Y. 154. But an exception is made if the terms of the will clearly indicate a point where the duties as executor end and those as trustee begin. Olcott v. Baldwin, 190 N. Y. 99, 82 N. E. 748; Laytin v. Davidson, 95 N. Y. 263. Other jurisdictions, in general, determine the right to double commissions by the substance of the work actually done. Pitney v. Everson, 42 N. J. Eq. 361, 7 Atl. 860; Lyon v. Bird, 79 N. J. Eq. 157, 80 Atl. 450; Kennedy v. Dickey, 99 Md. 295, 57 Atl. 621; Albro v. Robinson, 93 Ky. 195, 19 S. W. 587. This would seem to be the more equitable test. It is difficult to see why the testator's intent or the chance phrasing of a will should deprive the executor of additional payment as trustee where it is clear that he is acting in both capacities.

INSURANCE - CONSTRUCTION AND OPERATION OF CONDITIONS — VALIDITY UNDER "SUICIDE STATUTE" OF REDUCED RECOVERY FOR DEATH BY POISON. A life insurance company issued a policy containing a provision that in the event of death by poisoning the beneficiary should recover only one fifth of the face value of the policy. The insured committed suicide by taking poison. A statute provides that suicide shall be no defense in a suit upon a policy of insurance, and that any provision in a policy to the contrary shall be void. 1909 MISSOURI REV. STAT., § 6945. The beneficiary seeks to recover the face value of the policy. Held, that she may recover only one fifth of the face value. Scales v. Nat. Life & Accident Ins. Co., 186 S. W. 948 (Mo. App.).

Under the Missouri statute a provision in a life insurance policy reducing recovery in case of death by suicide is held to be void since it makes suicide a partial defense. Keller v. Travelers' Ins. Co., 58 Mo. App. 557; Whitfield v. Aetna Life Ins. Co., 205 U. S. 489. Likewise any provision discriminating in any way against recovery for suicide would seem void. In the principal case, however, the clause does not mention suicide but makes the physical cause of death the basis of reduced recovery. Prima facie this is clearly not within the purview of the statute. If it should appear in a particular case that by such a clause a company is really cloaking a discrimination against recovery for self-destruction, it should of course be held void. But to deny the validity of such a provision upon the ground that the death was incidentally a suicide would be to prefer recovery for a suicidal death by poison over recovery for any other death by poison. This construction would give to the statute an effect affirmatively favoring recovery for suicide.. Such a construction would seem abnormal, being entirely counter to the policy of the common law; for insurance against suicide has long been held void at common law. See Moore v. Woolsey, 4 El. & Bl. 243, 254; Ritter v. Mut. Life Ins. Co., 169 U. S. 139, 154. This so-called suicide legislation is of doubtful public policy under any construction, as it tends to restrain freedom of contract and removes a deterrent from suicide. To extend the effect of such a statute beyond its normal scope would seem deplorable. Another Missouri court of appeals had, how

ever, made this extension on facts exactly similar to those of the principal case. Applegate v. Travelers' Ins. Co., 153 Mo. App. 63, 132 S. W. 2. But the court in the principal case seems to have reached a more desirable result in refusing to follow this decision.

INTERSTATE COMMERCE - JURISDICTION OF COMMISSION

RIER.

COMMON CAR- A corporation was chartered for the purpose of doing an interstate freight business between ports connected by no existing steamship line. The stock was subscribed to conditionally upon the declaration by the Interstate Commerce Commission of rates favorable to the enterprise. Before it had acquired any boats or terminal facilities the company brought its complaint under the Panama Canal Act of 1912, amending the Act to Regulate Commerce, and asked that the Commission require the railroads named as defendants to establish and maintain proportional freight rates, that is, rail rates applicable to through rail and water shipments lower than the local rail rates to the port of loading on vessels. Held, that the complaint be dismissed. Charleston & Norfolk S. S. Co. v. Chesapeake & Ohio Ry. Co., 40 Int. Com. Rep. 383.

A hardship has apparently resulted to a corporation which seeks in good faith to learn under what rates it will be allowed to do business before spending further funds in an enterprise the success of which depends upon those rates. But the decision that the complainant is not a "common carrier engaged in," etc. and therefore not within the Commission's jurisdiction seems to be a correct interpretation of the terms of the Act to Regulate Commerce. 24 STAT. AT LARGE, 379. The amendment in question does not increase the agencies over which the Commission shall have jurisdiction. It only confers special powers relative to through rail and water carriage. 37 STAT. at Large, 568. And yet the tenor of the Commission's opinion is noticeably different from that of at least two earlier decisions not under this amendment. Flour City S. S. Co. v. Lehigh Valley R. Co., 24 Int. Com. Rep. 179; Suffern Grain Co. v. Illinois Central R. Co., 22 Int. Com. Rep. 178. In public service regulation by the states the same difficulty in terms exists. Since 1910 several legislatures have included specifically within the jurisdiction of the commissions established corporations organized for public service but as yet transacting no business and acquiring no property. 8 BIRDSEYE, 2153 (1910 N. Y.); PAGE & ADAMS ANN. GEN. CODE, 614-2a (1911 Ohio); 1911 NEW JERSEY LAWS, c. 195, § 15; DIST. COL. APPROPRIATION ACT OF MARCH 4, 1913, § 8, par. 1.

JUDGMENTS - COLLATERAL ATTACK· MISTAKE CONCERNING DEATH OF LEGATEE AS GROUND FOR ATTACK ON PROBATE DECREE. — A testator left a fund in trust to his widow for life, then equal shares to be given to each of his children "or their heirs." After the life estate the trustees under order of court deposited in a bank the share of the plaintiff legatee, one of the children. Later the court, erroneously believing the plaintiff legatee to be dead, decreed that the bank pay the fund to his heirs. Payment was made. The plaintiff now seeks to have the decree vacated and an order made against the bank. Held, that although the decree will be vacated, no liability will be imposed on the bank. Jones v. Jones, 223 Mass. 540.

Since the death of the testator is necessary to confer jurisdiction on the probate court a grant of probate of the estate of a living person is void, and the decree can afford no protection to one acting under it. Scott v. McNeal, 154 U. S. 34; Jochumsen v. Suffolk Savings Bank, 3 Allen (Mass.) 87. See 1 WOERNER, AMERICAN LAW OF ADMINISTRATION, § 208; 10 HARV. L. REV. 62. In the principal case, however, the probate court was administering a fund over which it had jurisdiction through the death of the plaintiff's testator. By the terms of the will, at the death of the life tenant the share in question was to go to the plaintiff or his heirs; and the court's mistake of fact as to the

death of the plaintiff was merely a mistake as to the person entitled to the fund. This raises no question of jurisdiction. It is the duty of a court of probate to decide who on the facts are the proper distributees. See Loring v. Steineman, I Metc. (Mass.) 204, 209. A decree of payment or distribution made by a probate court which has jurisdiction will protect an executor or administrator if he makes payment in good faith in accordance therewith. Ernst v. Freeman, 129 Mich. 271, 88 N. W. 636; Lowry v. McMillan, 35 Miss. 147. This protection is accorded him, even if the decree be subsequently reversed. Cleaveland v. Draper, 194 Mass. 118, 80 N. E. 227; Charlton's Appeal, 88 Pa. St. 476; Johnson v. Clem, 5 Ky. L. R. 793. The reason is that the court protects those who in accordance with a legal duty act in obedience to a valid decree. The bank in the principal case has a statutory duty to pay according to the decree of the probate court. MASS. REV. LAWS, C. 150, § 23. Accordingly, it should be protected in making the payment.

LIENS - ATTORNEY LIEN ON DOCUMENT ENFORCED OUT OF FUND REALIZED THEREBY. - A solicitor held, under his general lien, papers of a company which had been his client. During proceedings to wind up the company, the solicitor, pursuant to an order expressly reserving his lien, surrendered into court a document reciting an agreement to lease mining rights to the client. The liquidator contracted to sell the mining rights. Upon the purchaser's default, a sum of money deposited with the liquidator became forfeited. The latter applies for an order allowing him to retain the fund. The solicitor claims priority for his lien. Held, that the fund is to be applied first to the satisfaction of the solicitor's lien. In re The Ardtully Copper Mines, Ltd., 50 Ir. L. T. R. 95.

Voluntary surrender to the bailor ordinarily dissolves a lien. Vinal v. Spofford, 139 Mass. 126, 29 N. E. 288. Therefore where an attorney has acquired a lien on papers prior to winding-up proceedings, an order for surrender to the liquidator will not be sustained. In re Rapid Transit Co., [1909] 1 Ch. 96. Cf. In re Wilson, 12 Fed. 235, 244. But if the delivery is for a temporary purpose only, with the lien reserved, it is not dissolved. De Witt v. Prescott, 51 Mich. 298, 16 N. W. 656. Cf. Blunden v. Desart, 2 Dr. & War. 405, 419. Contra, McFarland v. Wheeler, 26 Wend. (N. Y.) 467. Cf. Gregory v. Morris, 96 U. S. 619. Especially must this be so in the principal case, for the court ought surely to keep faith with its own order. Cf. Greenfield v. Mayor, 28 Hun (N. Y.) 320. The documents in the main case were of assistance in obtaining the forfeiture. It would therefore seem that the lien preserved on the document in court should be extended to the forfeiture money. Cf. Boynton v. Braley, 54 Vt. 92, 93, with Blunden v. Desart, 2 Dr. & War. 405, 424. For offspring and accessions to chattels are subject to the same bailee's and pledgee's rights as the chattels. See Kellogg v. Lovely, 46 Mich. 131, 133, 8 N. W. 699, 700. Cf. Putnam v. Cushing, 10 Gray (Mass.) 334. See 2 KENT, COMMENTARIES, 14 ed., 361. Cf. Cory v. Harte, 13 Daly (N. Y.) 147. Again, money collected by an attorney's efforts is subject to his charging lien. In re Wilson, 12 Fed. 235, 238. And courts have held, apparently on this analogy, that money realized by the delivery of essential papers might be subjected to the same lien. Aycinena v. Peries, 6 Watts & S. (Pa.) 243. See In re Wilson, 12 Fed. 235, 244. An objection to the application of such analogy is the fact that a charging lien is specific rather than general.

NATIONAL GUARD THE STATUS OF THE STATE MILITIA UNDER THE HAY BILL. The appellee, Emerson, a member of the Massachusetts militia, was called into the service of the United States to aid in repelling the incursions of Mexican bandits. He refused to take the oath required by the recent Hay Bill, and claimed to be discharged of all federal obligations, on the theory that so much of the Dick Act, under which he had enlisted, as provided for