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JUST ISSUED.

BEACH'S COMMENTARIES

ON THE LAW OF

Trusts and Trustees,

AS ADMINISTERED IN ENGLAND AND THE UNITED STATES.

By CHARLES FISK BEACH.

The most complete treatise on the subject ever written.

No previous work extant has ever gone so deeply into the subject of the law of

TRUSTS AND TRUSTEES.

The author has in this work treated the whole subject of TRUSTS, express and implied, public and private. No topic of importance in connection with this important subject has been omitted.

More than 16,500 cases have been cited. The citations are not merely barren references to cases. They compactly digest the points involved, so that a lawyer may use them with confidence when the reports are not at hand, and they are complete to date. The statements of equitable principles and the citations by which they are supported Include all phases of the subject, and the

LATEST CASES REPORTED.

The numerous expositions of equitable doctrines by the Lord Chancellors of England, and by the most eminent American Judges are intelligently reviewed. Mr. Beach, in this treatise, when conflicts between different courts have been found, has not hesitated to ex. press his opinion as to which conclusion seem to be the most sound. Special care has been taken with the Index and Table of Cases to enable the busy lawyer readily to find what he wants.

Beach on Trusts and Trustees gives the law as it is to-day.

CONDENSED TABLE OF CONTENTS:

VOLUME I.

INTRODUCTION.-The rise and progress of trusts.
CHAPTER I.-What is a trust?

CHAPTER II.-The constitution of trusts-the settlor-
the trustee-the property-the beneficiary. Who
may be a settlor?

CHAPTER III.-The constitution of trusts continued.

Who may be a trustee?

HAPTER IV.-The constitution of trusts continued.
The subject-matter of a trust.

CHAPTER V.-The constitution of trusts continued.
Who may be a cestui que trust?
CHAPTER VI.-Express trusts.
CHAPTER VII.-Express trusts continued.
CHAPTER VIII.-Implied trusts. Implied trusts in
general-resulting trusts-constructive trusts. Im-
plied trusts in general.

CHAPTER IX.-Implied trusts continued. Resulting
trusts-division first. Trusts resulting to grantor.
CHAPTER X.-Implied trusts continued. Resulting
trusts-division second. Trusts resulting to payor.
CHAPTER XI.-Implied trusts continued. Construct-
Ive trusts-division first. Trusts from constructive
fraud.

CHAPTER XII.-Implied trusts continued. ConstructIve trusts-division second. Trusts from actual fraud.

CHAPTER XIII.-Trusts from equitable liens.

CHAPTER XIV.-Trusts arising from powers.

CHAPTER XV.-Trusts for married women.

CHAPTER XVI.-Trusts for charitable purposes.

CHAPTER XVII.-Trusts for infants.

VOLUME II.

CHAPTER XVIII.-Appointment, substitution, resig. nation and removal of trustees.

CHAPTER XIX.-The relation of trustees to the trust estate.

CHAPTER XX.-The relation of trustees to the trust
estate continued.

CHAPTER XXI.-Concerning the powers of trustees.
CHAPTER XXII.-The power to sell the trust estate.
CHAPTER XXIII.-The general duties and obligations
of trustees.

CHAPTER XXIV.-The investment of trust funds.
CHAPTER XXV.-The liabilities of trustees.
CHAPTER XXVI.-Simple, passive or dry trusts.
CHAPTER XXVII.-Trusts for spendthrifts.

CHAPTER XXVIII.-Trust for payment of debts and
legacies.

CHAPTER XXIX.-Trusts under assignment for creditors.

CHAPTER XXX.-Trustee for tenant for life and re

mainder-man.

CHAPTER XXXI.-Trusts under power of sale mortgages and deeds of trust.

CHAPTER XXXII.-Perpetuities and accumulations. CHAPTER XXXIII.-Equitable and statutory limitations.

CHAPTER XXXIV.-Trust companies as trustees. CHAPTER XXXV.-The cestui que trust. Rights and remedies-division first. Rights and remedies in relation to the trustee.

CHAPTER XXXVI.-The cestui que trust continued. Rights and remedies-division second. Rights and remedies in relation to third persons.

CHAPTER XXXVII.-Application of the purchase
money.

CHAPTER XXXVIII.-Costs and attorney's fees.
CHAPTER XXXIX.-The compensation of trustees.
CHAPTER XL.-Pleading and practice in trust cases.
CHAPTER XLI.-The determination of the trust.

Beach on Trusts and Trustees is in two volumes, 8vo., law sheep, containing over 2,100 large law book pages. Price $13.00, sent prepaid on receipt of price.

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A NEW REVISED EDITION OF

THE LEADING WORK ON FRAUDULENT CONVEYANCES. "Extensively Cited by Counsel and Judges in every State."

WAIT ON FRAUDULENT CONVEYANCES

AND CREDITORS' BILLS.

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In this third edition much fresh matter has been embodied in the original text, many new sections have beer written, and several thousand additional cases cited. Over one hundred and eighty pages of entirely new matter re

embodied in this edition.

The multitude of recent cases involving fraudulent alienations and covinous schemes devised to defest the claims of creditors demonstrates how important and far reaching the subject of Fraudulent Conveyances hi become. Sometimes a creditor's entire fortune is dependent upon a correct exposition of the statute of Eliza beth. Special efforts have been put forth to utilize the latest authorities upon the topics discussed,

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BAKER, VOORHIS & CO., Law Publishers,

66 NASSAU STREET, NEW YORK

Central Law Journal.

ST. LOUIS, MO., OCTOBER 29, 1897.

The Chicago Legal News calls attention to a novel case which recently came before the Superior Court of Cook County. The petition alleged, in substance, that the mother of plaintiff, several days before his birth in regular course of nature, contracted with the defendant hospital that the latter would, for a compensation then and there agreed on, shelter, attend, treat, during confinement and care for her and her child, then en ventre sa mere, during the period of childbirth and convalescence thereafter; that in pursuance of said agreement the mother of plaintiff paid said compensation and was received and accepted by said defendant at its hospital, by reason whereof it became the duty of said defendant to use due care and diligence for the safety and welfare of the plaintiff; that the defendant, by its agents and servants, placed the mother of plaintiff in an elevator for the purpose of carrying her and the plaintiff en ventre sa mere to an upper floor of the hospital for shelter, care and treatment, and so negligently and unskillfully conducted and operated said elevator as to permanently injure the plaintiff in the manner therein more fully described. The case was heard on demurrer to the declaration, the question raised being as to whether a child, after it is born, has a right of action for injuries sustained by it while en ventre sa mere; or, in other words, whether a child unborn is a person in being, so as to be entitled after its birth to maintain such an action. Only two cases on the subject were brought to the attention of the court: Dietrich v. Inhabitants, 138 Mass. 14, and Walker v. Great Northern Ry. Co., 23 L. R. (Ireland) 69, 32 Cent. L. J. 197. In both of these cases it was substantially held that a child unborn was not a person in esse" so as to enable it to sue for injuries received while en ventre sa mere, and that a contrary rule, from the difficulties of proof and other considerations, would be attended with danger. It seems, however, that the Illinois judge while approving of this doctrine held that it does not apply to the facts of this

case. He announced that, in his opinion, the rule does not apply in two classes of cases: First. Where a person willfully inflicts an injury upon a woman with child, knowing her to be such, and for the purpose of inflicting an injury upon her unborn child, whereby such child suffers permanent injuries; and second, where a mother or other person contracts, upon a valuable consideration for, in reference to, or on behalf of the child en ventre sa mere, for care and attention, or otherwise for the benefit or safety of the child, or of both the mother and child, where the duty arises out of contract and from the relative situation and circumstances of the parties at the time of the occurrence of the acts of negligence. The fact, says the court, that the plaintiff en ventre sa mere was in the elevator, and known to be by the defendant, in itself might not be sufficient to cast a duty upon the defendant to use due care and diligence toward the plaintiff, but where, in addition, such duty is imposed upon defendant by its own contract, based upon a valuable consideration, should not the plaintiff after his birth be permitted to maintain this action for the breach of the duty? The court was of the opinion that it should, and that the plaintiff in his declaration has stated a good cause of action, and was entitled to maintain it.

At the time of its rendition we neglected to call attention to an important Connecticut case, wherein was involved the question of the power of a State legislature to provide for the destruction of trees affected by a distemper or contagious disease. The case is State v. Main, 37 Atl. Rep. 80, in which the court held valid a statute of Connecticut authorizing a public official, after inspection of trees alleged to be diseased, to order their destruction by the owner and to make the latter liable for disobedience of such order. The court very sensibly held that the owner was entitled to a jury trial as to the existence of the distemper or disease in his trees, but that the question of the constitutionality of the law permitting destruction of diseased trees was one for a court and not for a jury. The court also upheld the power of a court to take judicial notice of the nature of an infection or disease upon which a legislature has assumed to base an exercise of police power.

The view of the court as to the validity of the statute was undoubtedly correct. The destruction of a tree affected by a contagious disease, without compensation to the owner, and against his will, is as fully within the police power of a State as the destruction of a house threatened by a spreading conflagration, or the clothes of a person who has fallen a victim to smallpox. Such property is not taken for publie use. It is destroyed because, in the judgment of those to whom the law has confided the power of decision, it is of no use, and is a source of public danger. It has been directly held that such destruction of infected trees by order of a public official, after due inspection, is a remedy, which, however severe, is one appropriate to the end in view, and may properly be enforced without any preliminary judicial inquiry, as well as without any compensation to the owner for resulting loss. State v. Wordin, 56 Conn. 216, 226; Powell v. Pennsylvania, 127 U. S. 678, 685, 8 Sup. Ct. Rep. 992, 1257.

NOTES OF RECENT DECISIONS.

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BENEVOLENT SOCIETIES-MUTUAL LIFE INSURANCE CHANGE OF BENEFICIARY.-Upon the question whether the member insured in a mutual benefit association may at his pleasure change the beneficiary designated in the policy where the laws of the association are silent upon the subject there exists much diversity of opinion among the decided cases, some holding that in the absence of an press or implied restriction the insured may revoke the designation of the beneficiary and appoint whom he chooses as the recipient of the benefit. To this effect, among others, are Association v. Bunch, 109 Mo. 560, 19 S. W. Rep. 25; Society v. Burkhart, 110 Ind. 189, 10 N. E. Rep. 79; Martin v. Stubbings, 126 Ill. 387, 18 N. E. Rep. 657. On the contrary it has been held that unless the power to change the beneficiary is expressly given either by the policy itself or by the articles of the association or by-laws of the society there is no difference in this regard between a policy issued by such association and one issued by an ordinary life insurance company; and the beneficiary upon the issuance and delivery of the policy acquires a vested interest that is irrevocable.

Block v.

Association, 52 Ark. 201, 12 S. W. Rep. 447; Johnson v. Hall, 55 Ark. 210, 17 S. W. Rep. 874; Weissert v. Muehl, 81 Ky. 336; Van Bibber's Admr. v. Van Bibber, 82 Ky. 347; Manning v. United Workmen, 86 Ky. 136. In Lone v. Clune, 50 Pac. Rep. 34, recently decided by the Supreme Court of Colorado, it appeared that the Brotherhood of Locomotive Engineers made it compulsory on every member to carry one or more policies in its insurance association for the purpose of furthering the object for which the brotherhood was organized, as declared in its con stitution and a by-law to be to benefit the families and heirs of deceased members. In 1894 the association was compelled by the laws of Ohio, where it had its headquarters, to be incorporated, and in its charter and by-laws changed said by-law by using the language of the Ohio statutes making insurance payable to the "assigns" of deceased members s well as to members of their families, but ser eral other articles of the association's by-laws referring to the insurance as payable to de ceased's "heirs" or "widow," and not men tioning "assigns," were retained intact after its incorporation. It was held that after in corporation the association did not enlarge its class of beneficiaries so that an heir o member of deceased's family could be pr cluded from its benefits, and hence a member of the brotherhood, who had taken out a pol icy for the benefit of his mother, could not after its incorporation, designate one wh was not an heir or member of his family as a beneficiary, to the exclusion of his mother. surviving him.

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LANDLORD AND TENANT - IMPLIED GRANT TO USE APPURTENANCES. In Cummings r Perry, 47 N. E. Rep. 618, decided by th Supreme Judicial Court of Massachusetts. appeared that the basement of a building divided by a brick partition into a salesrona. and an engine room, in the latter of which the freight elevator was situated. A lease the salesroom provided that the lessees shoul! be allowed the use of the elevator to bri goods from an upper floor in an adjoining

estate, which connected with the elevator, the basement, and that openings in the pa tition in the basement should be made connect the elevator and the salesroom. Subsequent leases were made, letting rooms in an upper part of the building to the same

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lessees, "with one horse power only," which meant the right to use the elevator. A flight of steps provided a means of connection between the sidewalk and the salesroom, and no lease gave the express right to use the elevator to carry goods from the basement to the sidewalk, or vice versa. It was held that there was no evidence from which the right to such use could be implied, although the lessor permitted such use. The following is from the opinion of the court:

The principal question in the case is whether the plaintiffs had any right to use the elevator for hoisting goods from the basement room up to the sidewalk, or for lowering them from the sidewalk to the basement room, as incidental or appurtenant to their estate in the basement room under the last lease. This claim of the plaintiffs is stated in the charge of the presiding justice as follows: "In the first place, with reference to the right of the plaintiffs to make this use of the elevator and the approach to it from the basement, in connection with the business of the basement-that is, to take goods from the sidewalk into the basement, and from the basement out onto the sidewalk-this right is not given by any express words in the lease. The lease is silent with reference to that. It merely leases the rooms-the basement and the two rooms above-so that the plaintiffs do not claim to have acquired this right to this approach and to the elevator by any express words in the lease; but they claim that it is given in the lease by virtue of the situation of the premises, and the use that had been and was made of them, the construction of the premises, and the design as to the use of the elevator in connection with the basement by the owner of the building. That, by reason of the circumstance, the situation and adaptation of the building, and the use that is made of it, this right to use the elevator passed to them as an incident to the use of the basement for their purposes, or, to use a technical word, as an ap purtenance-that is, something incidental to, and connected with, the principal thing, which was the use of the basement-one of the conveniences for enjoy. ment of the basement which he had hired." The presiding justice instructed the jury, among other things, as follows: "Now, having considered the facts with reference to these different matters that I have called your attention to, I will instruct you that if the elevator and approach thereto were constructed and designed by the owner of said building to be used in connection with said basement and the other parts of said building for the purposes claimed by the plaint. iffs, and the elevator and approach were used by the plaintiffs for the purposes claimed by them, in connection with the basement, in carrying on business therein, with the knowledge of the lessors, at the time of their lease to the plaintiffs, commencing January 1, 1888, and if from the date of said lease to the time of its assignment to the defendant the elevator and approach were used by the plaintiffs for the pur. poses now claimed by the plaintiffs in carrying on their business in said basement, with the knowledge and consent of said lessors, as a privilege belonging to the plaintiffs as the lessees of the basement, then the defendant would not have the right, upon becoming the assignee of lease, to prevent the use and enjoyment of that privilege, the use of the approach, and the use of the elevator; and, if he did prevent the use

of it by the plaintiffs, he would be liable to pay any damage which they sustained by reason of that prevention."

This court has held the doctrine of implied grants with a good deal of strictness. Buss v. Dyer, 125 Mass. 287; Randall v. McLaughlin, 10 Allen, 366; Lowell v. Strahan, 145 Mass. 1, 12 N. E. Rep. 401; Johnson v. Knapp, 150 Mass. 267, 23 N. E. Rep. 40; Case v. Minot, 158 Mass. 577, 33 N. E. Rep. 700. It is true that when a person hires a room in a building, a right to use the apparent means of access and exit often passes as appurtenant to the premises hired. In modern buildings of great height this doctrine we a-sume may be applied to elevators. Whether an active duty to maintain an elevator for the use of tenants can be implied may be open to question, but, if an elevator is in fact maintained by the landlord, the duty to permit tenants to use it, we assume, may be implied, if this is reasonably necessary for the beneficial occupation of the rooms let, and if, from the construction of the elevator and of the passageways, it is apparent that the elevator was intended for the use of the tenants. But in the present case it is apparent that the elevator was not intended originally to be used by the occupants of the basement room; that, although it might have been convenient for them to use it in connection with the sidewalk, yet suitable means of ingress and egress were furnished by means of the steps and doors from the basement room into the street; that at no time was there any access to the ele vator directly from the basement room; that the elevator did not adjoin the basement room, and the way through the engine and boiler room to the elevator from the basement room was not a common passageway, but that, for the purpose of connecting the basement room with certain rooms in the upper part of the building, or of the adjoining building, access to the elevator from the basement room by a way through the engine and boiler room had been provided; that this was originally done "for the purpose of bringing their finished goods from the two upper chambers of the adjoining estate, which they are expecting to occupy for manufacturing purposes, to said basement;" and that the only reference to the elevator contained in the last lease is in connection with the tenancy of the rooms 29 and 30 in the building. Under these circumstances, a majority of the court think that an implied grant of a right to use the elevator for the purpose of hoisting goods from the basement room to the sidewalk, and of lowering them from the sidewalk to the basement room, cannot be implied. The fact, if it be one, that the defendant or his predecessors in title permitted the plaintiffs to make such a use of the elevator, under the circumstances stated, cannot establish the right. The express agreements concerning the elevator contained in the leases tend to negative the right to such a use of it, and the history of the opening into the engine room and the use of a way across it to the elevator repel any implication of the right to use the elevator for all purposes for which it might be convenient to use it in connection with the basement room. In the opinion of a majority of the court, upon all the evidence recited in the exceptions, which purports to be all the evidence material to this issue, the presiding justice should have ruled, as requested by the defendant, that the plaintiffs showed no right to use the elevator after its tenancy of rooms 29 and 30 had been terminated, and no right to use it at any time for the purpose of hoisting goods to the sidewalk from the basement room, or of lowering them from the sidewalk to the basement room.

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