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States, the states have the power to make criminal the possession of more than a specified quantity of intoxicants.27

In addition to this, the states should provide for search and seizure proceedings to condemn shipments in excess of the permitted amount as soon as they cross state lines. The intent to violate local regulations would be clear; under the Webb-Kenyon Act the shipments would not be valid interstate commerce, and the states could thus exclude all consignments of liquor except in small quantities for personal use.

Lindsay Rogers. JOHNS HOPKINS UNIVERSITY.

27 See the language of Mr. Justice Harlan, Mugler v. Kansas, 123 U. S. 623, 662 (1887); Freund, Police Power, $8 453-455.

CONSTRUCTIVE TRUSTS BASED ON PROMISES MADE TO SECURE BEQUESTS, DEVISES,

OR INTESTATE SUCCESSION

EQUITY has long exercised jurisdiction to enforce a construc

tive trust (1) against a legatee who secured, or prevented the revocation of, his bequest, (2) against a devisee who obtained, or prevented the revocation of, his devise, and (3) against an heir, who persuaded an ancestor to refrain from making a will or to revoke a will already made and refrain from making a new one, by the giving of an oral promise to apply for others in ways promised some or all of the property thus obtained, and who, in violation of his promise, claims the property for himself. In Chamberlaine v. Chamberlaine, decided in 1678, in making a devisee pay certain sums, which he had agreed to pay in consideration of the testator's forbearing to alter his will so as to give the sums as legacies, Lord Chancellor Finch, afterwards Lord Nottingham, said it was "the constant course of this court to make such decrees upon promises made that the testator would not alter his will.” If the judge who introduced the bill for the Statute of Frauds in the House of Lords, a statute which was a wilis statute as well as one calling for written evidence of various contracts, could treat this jurisdiction of chancery as a matter of course, as he did treat it, only a few months after the passage of the Statute of Frauds, it would seem as if we ought not to have any difficulty with it. Unfortunately, however, American courts fail to agree in their answers to the fundamental question whether the promisor who is sought to be charged as trustee must have had at the time he made his promise an intent not to keep it, and this failure to agree on that essential matter makes it important to examine the cases critically. It will be well to set out the general principles first and then to collate the authorities.

A. GENERAL PRINCIPLES

It is, of course, true that the statutes relating to wills, to descent, and to distribution are to be observed by the courts. Moreover,

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whether or not chancery judges are strictly bound by those provisions of the Statute of Frauds which do not expressly, as the trust provisions do, apply to things equitable, they have always accepted the statute, except so far as the part-performance-specific-performance doctrine, or some phases of the doctrine of the reformation of written instruments or of the doctrine of estoppel may be deemed a partial rejection, and except so far as such judges may have been too liberal in finding constructive or resulting trusts. Hence any discussion of the doctrine of chancery as to constructive trusts enforced for breach of oral agreements as to the disposition of property which was bequeathed or devised to, or inherited by, the promisors, solely because of their promises, may well begin with the consideration of what is essential to the observance of the statutes as to wills, and be followed by a similar discussion as to the Statute of Frauds.

Incorporation into a will by reference and non-testamentary subsequent definition of legacies and devises. - By the statutes as to wills a method of executing wills and testaments is provided, and no instrument can properly be given effect as a will which does not meet those requirements. In most jurisdictions the document executed as a will may by appropriate reference incorporate into itself, and so make part of itself as a will, a writing existing at the time the will is executed; 2 but in a few jurisdictions incorporation by reference of papers, not executed in the way wills or codicils are required to be, is allowed only for the purpose “of identifying the object or subject of a bequest for devise) actually made and denoted in a will.” 3 In no jurisdiction may a testator in an executed will reserve to himself the right to supply names or amounts of gifts, or otherwise determine testamentary dispositions, by a subsequent writing not executed with the formalities required in the case of a will or codicil. The reason is that such names or such amounts of gifts cannot be supplied in such a way without the act of supplying them being essentially testamentary. In writing the names and amounts the writer is making no immediate dis

? 1 Jarman on Wills, 6 Eng. ed., pp. 135-138; Gardner on Wills, pp. 44-51; Page on Wills, pp. 183-190.

3 Hatheway v. Smith, 79 Conn. 506, 521, 65 Atl. 1058, 1063 (1907); Booth v. Baptist Church, 126 N. Y. 215, 28 N. E. 238 (1891); In re Emmons' Will, 110 N. Y. App. Div. 701, 96 N. Y. Supp. 506 (1906).

position of the property, but is deliberately supplying information of his intentions as to the disposition to be made of his property at his death, and his writing, which in no respect differs from an attempted will or codicil, must necessarily be ineffective unless executed in the manner required in the case of wills and codicils. The subsequent memorandum is in all essentials an attempted codicil and must be executed in the way in which in the given jurisdictions codicils are required to be executed, or else it must fail to have any effect.*

But when the foregoing is said, not all is said that needs to be. A testator may put in his duly executed will provisions which may be given a different application, and therefore be made to constitute in a sense a different property disposition, by events which happen after the execution of the will. For instance, a trust to dispose of property and divide the proceeds among those who should be the testatrix's partners at the time of her death, or to whom she might have disposed of her business, was held to be good in favor of those to whom the testatrix did dispose of her business. So it has been held that a gift in a will of all one's property to the person who shall furnish the maker of the will at the maker's request with support may be claimed by one who meets the conditions after the execution of the will. In each case the subsequent act of volition of the testator, which results in the designation of the person to take under the will, is performed for other than testamentary reasons, and hence the designation is not fairly to be called testamentary. As was said by Lord Chancellor Cottenham in the case of the trust for those to whom the testatrix should dispose of her business:

"In the present case the disposition is complete. The devisee, indeed, is to be ascertained by a description contained in the will; but

4 “Cases in which there is reference to an existing paper, it is obvious, stand upon quite a different footing from those in which a testator (as often occurred under the old law) attempts to create, by a will duly attested, a power to dispose by a future unattested codicil. To allow such a codicil to become supplementary to the contents of the will itself would, it is obvious, tend to introduce all the evils against which the Statute of Frauds (as a wills.statute] was directed, and indeed give to the will an operation, in the testator's lifetime, contrary to the fundamental law of the instrument.” 1 Jarman on Wills, 6 Eng. ed., p. 133.

5 Stubbs v. Sargon, 3 Myl. & C. 507 (1838).
6 Dennis v. Holsapple, 148 Ind. 297, 47 N. E. 631 (1897).

such is the case with many unquestionable devises. A devise to a second or third son, perhaps unborn at the time — many contingent devises – all shifting clauses are instances of devises to devisees who are to be ascertained by future events and contingencies; but such persons may be ascertained, not only by future natural events and contingencies, but by acts of third persons. Suppose a father, having two sons, and having a relation who has a power of appointing an estate to some one of them, makes his will and gives his own estate to such one of his sons as shall not be the appointee of the other estate or with a shifting clause. Here the act of the donee of the power is to decide who shall take the father's estate; but there is nothing in the Statute of Frauds to prevent this, because the devise by the will is complete, that is, the disposition is complete — the intention is fully declared, though the object to take remains uncertain. If the subsequent act removing that uncertainty, and fixing the identity of the devisee, were to be considered as testamentary, in the case above supposed, the donee of the power would be making or completing the will of the father, that is, one man would be making another man's will. The act, therefore, is not testamentary; and, if not, then why should not the act be the act of the testator himself? It is objected to upon the ground of its being testamentary; but if it be not testamentary when done by a stranger, it cannot be so when done by the testator. If it were otherwise, a testator could not devise lands, or give legacies charged upon land, to such person as might be his wife at his death —to such children as he might have — or to such servant as he might have in his service at his death.”?

Gifts causa mortis.- Not only may some unattested volitional acts of the testator subsequent to the will be allowed to determine the identity of persons to take under a will or the amounts they may take, but some quasi-testamentary acts, – such as gifts causa mortis, where delivery takes the place of the execution of a will, may even enable essentially testamentary dispositions to be effected without compliance with the statutes governing wills. To be sure the delivery, actual or symbolic as the case may be, marks a gift

7 Stubbs v. Sargon, supra, 511-512. With reference to a direction in the will that advancements subsequently made and charged in testator's books or papers be deducted from legacies, see In re Moore, 61 N. J. Eq. 616, 47 Atl. 731 (1900); Langdon v. Astor's Heirs, 16 N. Y. 1 (1857); Robert 9. Corning, 89 N. Y. 225 (1882); Harris v. Harris's Estate, 82 Vt. 199, 72 Atl. 912 (1909). For such a direction to be effective, advancements must in fact have been made. Langdon v. Astor's Heirs, supra (semble); Hoak o. Hoak, 5 Watts (Pa.) 80 (1836). To the extent that they have not been made, the subsequent writing is necessarily testamentary in intent and nature.

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