Wills: Revocation by Mutilation by Vermin

1902 Michigan law review  
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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. RECENT DECISIONS RECENT DECISIONS RECENT DECISIONS 77 77 77 delivered to satisfy vendee that contract would be performed. Held: vendee's default, accompanied with announcement of intention not to perform upon agreed terms, gave vendor right to rescind. Johnson Forge Co. v. Leonard, (Del.) 51 Atl. Rep., 305.' The test prescribed by this case for determining whether the right of rescission exists appears to be somewhat unusual. It is stated that if a default by one party is accompanied with an announcement of intention not to perform upon the agreed terms, or is accompanied with a deliberate demand " insisting upon new terms different from the original agreement," the other party may rescind. A majority of the cases seem to warrant rescission upon a default in payment, even where no such intention is expressed or to be gathered from the conduct of the party in default, and upon other and quite different grounds. Kokomo Strawboard Co. v. Inman, 134 N. Y. 92, 31 N. E. Rep. 248; Hess Co. v. Dawson, 149 Ill. 188, 36 N. E. Rep. 557. McGrath v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am. St. Rep. 415. A few courts, however. in accord with the English rule as stated in Iron Co. v. Naylor, 9 App. Cases, 434, hold that such a default does not justify rescission unless the acts or conduct of the defaulting party evince an intention no 'longer to be bound by the contract; (see Withers v. Reynolds 2 B. & Ad. 882) and the principal case is rather in harmony with those decisions. Blackburn v. OReilly, 47 N. The rule seems just and reasonable, and well calculated to protect the interests of both parties to the contract. TRUSTS-USE OF TRUST FUNDS BY PARENT-REPAYMENT TO FUND-FRAUD ON CRED- ITORS.-A debtor, acting as trustee under his father's will for his own minor children, supported them out of the trust funds. Held, that whether the will be construed as clothing trustee with discretionary power as to the support of the children, or as creating an express trust for that purpose, the debtor is not permitted to restore to the trust estate the sums so expended on the plea that he is able and it is his personal duty to support his children, when by so doing he will evade the payment of his honest debts. Nat'l Valley Bank v. Hancock (Va.) 40 S. E. Rep. 611. A father, if of ability, is bound to maintain his infant children, even though they may have property of their own. Evans v. Pearce, 15 Grat. (Va,) 513; 7 Richardson's Eq. (S. C.) 105; and this, ordinarily, though there is a provision in the trust instrument for their maintenance, Mundy v. Howe, 4 Br. Ch. 224; PERRY ON TRUSTS, ?612; unless the property is conveyed upon an express trust, one of the conditions of which is such maintenance, when it must be so applied irrespective of the father's ability to support. Ransome v. Burgess, L. R. 3 Eq. 773. When, however, trustees have discretion as to the application of the trust f und to the support of infant children, the father cannot compel its exercise in his favor nor will the court interfere if they have exercised their discretion. Brophy v. Bellamy, 8 Ch. App. 798. It seems that the tendency now is to look to the circumstances of each case, and authorize the income from estates of infants to be applied to their support whenever it appears to be proper. Andrews v. Partington, 3 Br. Ch. 60, note; Evans v. Pearce, supra. The principal case held that the fund had been rightfully appropriated, and so could not be restored to evade payment of his honest debts by the debtor.
doi:10.2307/1272243 fatcat:bt7afgrvdjfibdnq3ochzkyatm