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THE GREEN BAG

Kans. 1901, § 2301) and that the Kansas statute which gives to persons confined in the Penitentiary for less than life the right to contract about their real and personal property (Laws of Kans. 1905, p. 214) by implication denies such rights to life con victs, it seems strange that the validity of the assign ment was not questioned. That it was open to attack is apparent from Williams v. Shackleford> 97 Mo. 322, where, under a statute like that in Kansas, a mortgage by a convict whose civil rights were suspended was held void. As civil death will prevent a man from inheriting property (Estate of Donnelly, 125 Cal. 417), so it should prevent him from assigning his rights in property. On the point considered by the court, the case would seem to cite all the authorities and to lay down the right rule. While, however, as a matter of law an estate is distributable to the distributee who murders the intestate for gain, a court of equity should deprive him of the benefit of his crime by holding him as trustee for those who would take if he did not exist. The reason why the murderer is allowed to take title is that innocent purchasers for value from him may be protected. But for them the courts would doubtless have no more difficulty in going against the express words of the statute of Descents and Distributions than the California court had in Estate of Donnelly supra or than a court of equity experiences with reference to the Statute of Frauds. The fact that the assignee was not innocent and that his assignee would necessarily take subject to equities would seem to be the real justification for the doctrine laid down in New York Mut. Life Ins. Co. v. Arm strong, 117 U. S. 591, that the assignee of a life insurance policy cannot recover on it where he deliberately murders the insured; and the doctrine that equity should make the murderer a trustee where he does get anything is supported by the fact that in at least one insurance case, where the beneficiary could not recover because she murdered the assured, it was determined that the company should hold the insurance money for the assured's representative (Schmidt & Northern Life Assoc. 112 Iowa, 41). The doctrine that a court of equity will hold the murderer as trustee was laid down in cases where a testator was murdered by a devisee (see Ellerson v. Westcott, 148 N. Y. 149, 154), but applies with equal force to the cases of an heir and of a dis tributee. It is called for by sound public policy. Geo. P. Costigan, Jr. The writer does not concur in the statement that this case is " somewhat in conflict with analogous cases from other jurisdictions." Similar questions have arisen frequently, and the decisions have been almost uniformly in accordance with the

doctrine of the Kansas Court. (See 14 CYC 62. Also in re Kuhn, 125 Iowa, 449.) Indeed, about the only thing left open to comment on the subject is the failure of the legislatures, after so many warnings, to amend existing statutes in such man ner as to remove the incentive to murder an ancestor or testator for the purpose of anticipating an inheritance or devise. It would be well for the bar associations of many states to press the matter upon the attention of their legislators. F.I. DIVORCE. (Desertion — Domicile.) Mass. In Franklin v. Franklin, 77 Northeastern Re porter, 48, the Supreme Judicial Court of Massa chusetts holds that where a resident of a foreign country emigrates to America to better his con dition, the action of his wife in refusing to ac company or follow him without other excuse than disinclination to leave her native land, is deser tion, entitling the husband to divorce. The court concedes that the right of the husband as head of the family to select a domicile is not absolute, but must be exercised with some reference to the welfare of the wife. In spite of this, the deter mination of the mutter must, it is held, be left in the first instance and ordinarily to the husband, upon whom rests the legal duty of providing for his family as well as himself; and in view of the fact that the change of domicile desired by the husband in this case would have involved no change of race or language, and since a denial of the husband's right to change his location in order to better the interests of himself and his family would result in impeding social progress and individual advancement, it is held that the wife was not justified in refusing to come to this country upon the husband's request. DIVORCE. (Vagrancy.) Mo. Ct. of App. — The St. Louis Court of Appeals delivers a very comforting decision in Gallemore v. Gallemore. 91 Southwestern Reporter, 406. A provision of the Missouri statutes, declaring that every ablebodied man who shall neglect or refuse to sup port his family, shall be deemed a vagrant, and that when the husband shall be guilty of such conduct as to constitute him a vagrant, the wife shall be entitled to a divorce, is construed and it is held that where a physician of good habits en deavored to establish a practice, maintained an office where he waited for patients, and attended to such calls as he had. contributing his entire income from his practice to the support of his wife and himself, he was not a vagrant within the meaning of the statute, though he did not succeed in earning enough to support his wife and himself, and she was compelled to contribute to their support from her separate means.