Page:Harvard Law Review Volume 2.djvu/258

 240 f^AR YARD LA W RB VIE W.

destroys the right by surrender. Neither he, nor one in the position of a donee, will be permitted to profit by this transaction at the expense of the beneficiaries; and the proceeds may be followed as before by means of a constmcdve tmsL

The court held that the old policy was merged in the new, so that the pay- ments on the new were made as if on the old. The latter idea seems erroneous, because the payments were never intended to be made on the old policy, but for a very different purpose. Even if that purpose failed, there would seem no excuse for applying them directly contrary to the intention of the parties. It should be said, however, that there is considerable authority for the general result reached by the c6urt.

See 17 Abbott's New Cases, 21, for a collection of cases.

Master and Servant — Liability of Railroad Companies. — A person who goes with cattle on a railroad, to feed, load, and unload them, does not be- come an employee of the company by signing on agreement that he should be deemed an employee, the contract of shipment showing that he is, in fact, the agent of the owner, and the company is still liable to his heirs, although his death was the result of negligence on the part of its servants. Missouri Fac, Ry, Co. V. Ivy, 9 S. W. Rep. 346 (Tex.).

Mortgage — Bond for Titles — Liability for Taxes. — In taxing real estate which is subject to a bond for titles, the public authorities may treat it as the property either of the maker or of the holder of the bond, when the holder is in possession; but, as between the parties to the bond, the one receiving the rents and profits, or enjoying the use of the property, is liable for the taxes. Nat^ Bank of Athens v. Danforth^ 7 S. E. Rep. $46 (Ga.).

Railroad Companies — Stock-Kilung — Presumption of Negugence. — In an action to recover damages for the negligent killing of live-stock by the defendant's train, proof of the fact of the killing, and that it was inflicted by a moving train belonging to the defendant, makes out a prima facie case for the plaintiff; the onus is then cast on the defendant to overcome the presumption of negligence by proof of the circumstances of the killing. Mobile & G. R, Co. v. Caldwell, 3 So. Rep. 445 (Ala.).

Wills — Executory Devise — Civil Death. — ^The tesutor's son was given a remainder in fee subject to an executory devise if the son died without children. After the death of the testator the son was convicted of murder in the second degree, and was sentenced to the State prison for life. The particular estate upon which his remainder was limited subsequently terminated. It was claimed, under 2 Rev. St. N. Y. 701, § 20, providing that a person sentenced to imprisonment for Ufe, ** shall thereafter be deemed civilly dead," that the son, being dead in the eye of the law, and having no children, was divested of his estate, so as to let in the executory devisee; but the claim was not allowed, because civil death does not divest a man of his estate. Avery v. Everett, 18 N. E. Rep. 148 (N. Y.).

This case is valuable for a discussion of what constitutes and what is the effect of civil death.

Wills — Loss of Testator's Duplicate. — Where a will is executed in duplicate, and the testator retains one copy in his possession and deposits the other in the custody of another person, if, at the testator's death, his duplicate is not to be found, a presumption arises that it has been destroyed by him animo revocandi, and, in the absence of evidence to the contrary, the will is presumed to have been revoked. Jones v. Harding, 58 L. T. R. 60 (Eng.).

This decision was based on the authority of Luxmoore v. Chambers, an unre- ported case decided by Sir James Hannen, Mr. Justice Butt saying that without the authority of that case he should be disinclined to reach the result he did.