because he had a partner whom he distrusted and who he feared would involve him financially. Other recent cases upon the question are: Delfosse v. Delfosse 287 Ill. 264 (presumption of gift from conveyance by third person to wife); Rybakowicz v. Rybakowicz 290 Ill. 535 (presumption of gift); Milkman v. Orther 223 Fed. Rep. 507 (wife paid for property with money saved out of household allowances); Scott v. Connell 295 Ill. 514 (presumption of gift); Coonce v. Coonce, 296 Ill. 592 (conveyance set aside because procured by wife with intent to abandon husband).

In that situation of the law, we encounter the recent case of Wolkau v. Wolkau 299 Ill. 176, 132 N. E. 507, where the wife sought to compel the husband to account for rents collected from property which was in their joint names, and the objection by the husband was that of presumptive gift, from the wife permitting him to collect and use the rents. The court, it would seem, very properly overruled the objection as the presumption of gift above referred to, arises from the spouse's voluntary act of commission and not from any act of omission or passivity, and under the facts of the principal case, the act of the husband in taking and using the rents was as consistent with his right as tenant in common, as with a claim of right by gift.

E. M. L.

CONSTITUTIONAL LAW-PROBATE COURTS JURISDICTION-ALLOWANCE OF CLAIMS AGAINST CONSERVATORS.-The jurisdiction of the Probate Court to consider claims filed by claimants against persons under conservatorship is discussed in the case of the First State Bank of Steger v. Chicago Title and Trust Company 302 Ill. 77, 134 N. E. 46. Prior to the passage of Section 55, Chapter 86, Hurd's R. S., 1919 (Laws 1919, pages 599), it is admitted that the Probate Court had no such jurisdiction (Morgan v. Hoyt 69 Ill. 489; Kingsburgy v. Power 131 Ill. 182), the theory being that the Probate Court is but an inferior tribunal, and therefore limited in its jurisdiction in the matters expressly conferred upon it by statute. The latter section, however, expressly conferred jurisdiction upon the Probate Court to determine the claims filed against persons under conservatorship, and the question presented in the case before the Supreme Court was whether said section passed by the legislature is in violation of Section 20, Article 6, of our constitution, which reads as follows:

Said [probate] courts, when established, shall have the original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts; in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts."

This section as it will be seen does not, in express terms, prohibit the Probate Court from taking jurisdiction of a claim against an insane person, nor does it expressly confer such jurisdiction, and the question is whether the legislature had power to enact such a

law.

The court comes to the conclusion that the said section was not in violation of said Section 20, Article 6, of our constitution upon the theory that although the constitution is a limitation upon the powers of the legislature, yet "the legislature possesses every power not delegated to some other department or denied to it by the constitution (Winch v. Tobin 107 Ill. 212)." While we agree with the decision of the court that the said section is not in violation of the constitution, we cannot, however, agree with the theory upon which the court bases its decision. If Section 20 of Article 6 of our constitution does not contain a provision conferring jurisdiction upon the Probate Court to consider such claims, then we believe the legislature had no power to pass it. The constitution fixes the jurisdiction of county and probate courts. Section 18 of said Article 6 refers to the jurisdiction of the County Court and contains language similar to that in Section 20 with reference to the jurisdiction of the probate courts with the addition, however, in Section 18, of the following language: "And such other jurisdiction as may be provided by general law." Under this provision, the legislature may confer further jurisdiction on county courts. This clause, however, is not contained in Section 20, with reference to the probate courts. The constitution specifically limited the legislature in conferring jurisdiction on probate courts to the matters specified, and if it is true as the court says in its opinion that there is nothing in the section expressly prohibiting or conferring such jurisdiction, then the mere fact that such jurisdiction is not contained in the section, is a limitation upon the legislature against conferring further jurisdiction on probate courts. If the constitution contained no provision with reference to the power of the legislature to confer jurisdiction upon probate courts, then the fact that the constitution did not expressly deny such right to the legislature would confer such right upon the legislature, but in the face of the express limitation of the constitution upon the legislature, with reference to jurisdiction in probate matters, we believe that if said Section 20 of Article 6 of our constitution does not authorize such jurisdiction of the Probate Court, then the legislature had no power to pass such a law, and Section 55 of Chapter 86 is therefore in violation of the constitution.

We believe, however, that a careful reading of Section 20 of Article 6 of our constitution will show that the constitution expressly conferred such jurisdiction upon the Probate Court. Part of said section reads as follows: "Said courts, when established, shall have original jurisdiction of all Probate Matters, settlements of estates of deceased persons, the appointment of guardians, and conservators, and settlement of their accounts." In the long line of decisions, the courts have held that the term of "settlement of estates" embraces the allowances of claims against deceased persons. In the case of the Estate of Mortenson 248 Ill. 520, the court says: "The settlement of an estate in legal significance in common understanding is the process by which letters testamentary or of administration are granted, estates collected, claims allowed, debts paid." If it is true that the term "settlement of an estate"

means the allowance of claims, why does not the term "settlement of accounts" mean the allowance of claims? In order to settle the estate of a deceased person, it is necessary to allow the claims and pay the debts in order to approve the account. Why is it not necessary in order to settle an account of a conservator to allow claims and pay debts? The language used therefore in Section 20 of Article 6 under the term settlement of accounts expressly contains the jurisdiction of the Probate Court to allow claims, and we therefore believe that the decision reached in the above case with reference to the jurisdiction of the Probate Court over claims filed against persons under conservatorship is correct, and that it is not in violation of Section 20, Article 6, of our constitution.

MEYER ABRAMS.

WORKMEN'S COMPENSATION-LIABILITY OF AN AGENT.-The Supreme Court, in the case of Fischer v. The Industrial Commission, et al. 301 Ill. 621, 134 N. E. 114, reverses a decision of the Circuit Court and Industrial Commission, holding liable an agent, having general supervision of an apartment building, for damages growing out of the death of a janitor employed in the building. The decision of the lower court was upon the theory that the agent was acting as an employer in the management, control, and conduct of the apartment building at the time of the accident. In this case, the agent, Fischer, was originally employed by P. H. & Co., who were appointed exclusive agents, in a deed of trust securing a bond issue, to rent the premises, collect rents and care for and manage the property. P. H. & Co. pursuant to this power employed Fischer. The leases were on printed forms on which the agent's name was printed as the person to whom the rent should be paid. When repairs were necessary, he would get an estimate and let the contracts to the lowest bidder. He did not have unlimited authority to make repairs and in engaging janitors he submitted their references to the owner for approval and this he did in connection with the employment of the deceased. Peabody testified on the trial that he had the power to discharge Fischer as an agent if he desired or deemed it necessary to do so at any time.

The holding of the lower court was based upon the ruling found in the case of Storrs v. Industrial Commission 285 Ill. 595. The court points out that whatever language may have been employed in that case must be considered with particular reference to the facts in that case, where the evidence showed that Storrs himself owned the buildings which he maintained and leased as his sole occupation. The court indicates that the liability, if any, of Fischer in this case must necessarily be grounded upon whether he occupied the position of an independent contractor in the management of the building. While it is true that the degree of control retained and exercised by the person for whom the work is being done is one of the principal tests in determining whether a person is an employee or an independent contractor, yet, the court says the nature of one's duties may be such that much or little supervision may be neces

sary, so that the degree of actual supervision is not a sure test whether one is an employee or independent contractor. In this case, as to many of the minor details, there was little necessity for interference with or supervision of the agent or manager of the building, but it seemed clear to the court that the agent himself recognized his limited authority as is shown by the course he took with reference to the employment both of the deceased and of all other janitors. The court then concludes that it cannot be held on the facts as shown in the record that Fischer was acting as the employer of the deceased, at the time of the accident. Immediately after the court reaches this conclusion, it adds, apparently as an additional but, to it, unnecessary reason in support of its decision, that "It is obvious that under his letter of appointment, Fischer could have been discharged at any time by P. H. & Co. from his management and control of the apartment building and on this record it necessarily follows that his authority after the new owner purchased the apartment building must have been under the same conditions as before as to the management and control of the building.

While the court cites no authority upon this additional ground of its decision, it is respectfully submitted that this element of the right to discharge Fischer at any time is the most persuasive fact in arriving at the ultimate conclusion that he was not an independent contractor. If the decision had been arrived at particularly with reference to this element of the power to discharge, no criticism could have been directed at either the result or the reason. Reliable authority in the decisions of our own Supreme Court is to be found that the power to discharge is an essential element of the relationship of master and servant. Thus in discussing this question, in the case of Connelly v. People's Gas Light Co. 260 Ill. 162, it is said:

"He is master who has the choice, management, control and direction of a servant. It was held in Pioneer Fireproof Construction Co. v. Hanson 176 Ill. 100, that the right of control involves the power to discharge and the relation of master and servant does not exist unless the power of discharge exists. In Harding v. St. Louis Stockyards 242 Ill. 444, the statement that the relation of master and servant does not exist unless the power to discharge exists was repeated and the court approved the decision in Driscoll v. Towle 181 Mass. 416, where the conditions were practically the same as in this case

While, as it is said in this case, it may be, and no doubt is, true that no one feature of the relation of men working and contracting. together is determinative, but all must be considered together, yet, if because of such fact each case must be dependent entirely upon its own facts, the profession would be without guidance in this class of cases and litigation encouraged in the hope that the court might view the facts in a particular case as constituting or not constituting relationship of employer and employee. A better and more satisfactory form of result, it seems to us, would be to recognize the various elements upon which the relationship is dependent and then make application of the well-settled principles of law upon this subject, which application would, of course, necessarily be limited

and governed by the facts of the particular case under consideration. It is hoped that the court in its generalization concerning the dependency of each case on its own facts in reality had in mind such dependency only with reference to the application of the well-settled principles of law upon this subject. PAUL E. PRICE.

HOMESTEAD DESCENT OF, AFTER DEFECTIVE CONVEYANCE.The case of McNichols v. McNichols 299 Ill. 362, 132 N. E. 448, exhibits a situation that would not ordinarily exist except in a case of gift. In that case a widow residing on the premises with her two adult unmarried daughters executed deeds whereby the property should become vested in the three as joint-tenants and not as tenants in common. The deed was made through a third person and the one made by the widow was not in fact acknowledged personally before the notary. The notary's stenographer took the deed to the grantor at her home for signature and, having obtained the signature, carried it back to the notary who supplied the acknowledgment. Upon the widow's death, other heirs of the widow assailed the deeds. They were unsuccessful in setting aside the deeds as such, but the court held that the deeds as such did not pass the homestead interest, which, under the law, was $1,000 (White v. Patten 280 Ill. 219; Detienne v. Detienne 291 Ill. 442). And the premises being of greater value than $1,000, the deeds were valid, though ineffective to convey as to $1,000 (cases supra; Reminger v. Joblonski 271 Ill. 72; Heckman v. Detlaff 283 Ill. 514).

The prime consideration, apparently, was whether the widow was a "householder" within the meaning of the Homestead Act, and the court very properly, it would seem, held she was (White v. Garner 179 Ill. 264: where one who lived with and supported two sisters was "a householder having a family") the case of Olp v. Meyer 277 Ill. 202, cited in the opinion in the principal case, satisfies the objection that in the later years the widow was supported by the daughters instead of supporting them.

Had this been a case of transfer of the property for consideration, it is very unlikely the question would have arisen, for there would then have been a surrender of possession pursuant to the transfer, and that would waive the homestead interest as effectually as by observing the form of deed and acknowledgment prescribed by the statute (Coon v. Wilson 222 Ill. 633, 638; Phillips v. Gannon 246 Ill. 98, 108; and see Morgan v. Poe 254 Ill. 98).

E. M. L.