Partnership. Pleading

1898 The Virginia Law Register  
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more » ... ntent at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. 1898.] NOTES OF CASES. 545 TRUSTS-PRECATORY WORDS.-The modem tendency toward the abandonment of the rule that in the interpretation of wills, words of hope, recommendation, etc., prima facie create a trust, is illustrated in the case of Keevan v. Walker (Mass.), 51 N. E. 448. The testator gave his entire estate to his wife, "to the end that she may be able to maintain a home for herself, and one where she can receive our dear children as we have been accustomed to do during our joint lives. I am confident that she will manage with good discretion and fidelity what is committed to her, and that when she shall no longer need the property, it will be equally divided among our dear children or their representatives." This was held not to create a trust in favor of the children. The leading modern English case in which the former arbitrary rule was abandoned, is In re Adams and the Kensington Vestry, 27 Ch. D. 394. See Bispham's Equity, 71 et seq. In Harrison v. Harrison, 2 Gratt. 1, the language of the will was: "In the utmost confidence in my wife, I leave to her all my worldly goods, to sell or to keep for distribution amongst our dear children, as she may think proper. Mv whole estate, real and personal, are left in fee-simple to her; only requesting her to make an equal distribution amongst our heirs." This was held to constitute a trust, carrying a life-estate only to the widow, with remainder in trust for the children of the marriage. Brooke, J., dissented, holding that no trust was created. In Rhett v. Mason, 18 Gratt. 541, where the gift was to the wife for life, " for her maintenance and support and for the maintenance and support of our children," it was held that no trust was created for the children, but that the language, "for the maintenance and support of our children," was a mere expression of the motive of the gift. Moncure, P., in delivering the opinion, quotes, with apparent approval, the dissenting opinion of Brooke, J., in Harrison v. Harrison. The decision in Rhett v. Mason (supra), has been followed by a long line of Virginia cases, among the last of which is Fackler v. Berry, 93 Va. 565 (2 Va. Law Reg. 531 and note). In Reid v. Blackstone, 14 Gratt. 231, the testator gave all of his property, including his slaves, to his nephew, John Reid. By a brief codicil he added: "I wish you to take the negroes to Penn'a, where they will be free." In the opinion, as reported, the court declined to decide whether this language created a trust in favor of the slaves or not. No further report of the case appears in the official series, but in 2 Virginia Law Register, 231, is published a letter from the late lamented John Randolph Tucker, who was counsel for the administrator, in which the subsequent history of the case is narrated. When the case came again before the lower court, that court held that a trust was created in favor of the slaves. Mr. Tucker, as counsel for the administrator, applied for an appeal from the decision, but the Court of Appeals, after full argument, unanimously concurred in denying the apperl. "So that," says Mr. Tucker, "the unanimous court held that the will clearly created a trust for emancipation." PARTNERSHIP-PLEADING.-That a co-partnership is not a legal person, and that in an action on a joint liability, the question whether the defendants are partners or not is generally immaterial, is well illustrated by the case of Miarzx v. Culpepper (Fla.), 24 South. 59. The defendants were sued as partners for goods sold 1898.] NOTES OF CASES. 545
doi:10.2307/1098322 fatcat:n2g673zli5gypj5taamvdgo73a