provision taken in its entirety, as also from the fact that legacies. only were given to those who would take if "die without child or children" were taken to mean at any time, the court considered that there was here a situation where the death under circumstances was "controlled by other provisions of the will."

In the principal case, the limitation was X to the executor in trust [implied] to pay A $200 a year or more during her life, and the use of certain property for life, and to pay other specific bequests, the residue to be divided between B, C, and D [brothers and sisters] or if B, C, or D die leaving no heirs [children or descendants by construction because if one died the others would be heirs] then over. Applying the rule above laid down, the interests did not vest on the death of the testator, and death would mean "at any time." But here comes another rule of law, and that is that the estate will be held to vest at the earliest possible moment. (Whittington v. Hunt 296 Ill. 135 [where the limitation was X to executors to convert and distribute to A, B, C, and D, and if any die without children then their shares to go to the others, and it was held that the time of distribution was the time of vesting]; Romer v. Romer 300 Ill. 336 [where the limitation was X to A for life, remainder to X's children then surviving and the descendant or descendants of any deceased child or children, and if any of said children die leaving no child or children surviving him, then over, and it was held "die without children meant at the time of the death of the life tenant]). As applied to the limitation in the principal case, it was held that the death of "A" marked the period of vesting in B, C, and D, and when C died after A, her deed to her husband made after A's death passed her third interest to her husband. E. M. L.

PROPERTY-ESTATES-VESTING IN INTEREST AND VESTING IN POSSESSION. The case of Palmer v. Jones 299 Ill. 263, 132 N. E. 567, is another example of the rule that the law presumes in favor of vesting at the earliest moment (Beatty v. Collins 294 II, 426428; Romer v. Romer 300 Ill. 336, 339; Jacobs v. Dietz 260 Ill. 102; Jones v. Miller 283 Ill. 356; Sheridan v. Blume 290 Ill. 511; Wittfang v. Dirksen 295 Ill. 364; Whittington v. Hunt 296 Ill. 138). In that case the question was of the effect of the words "at their death" in introducing a limitation over. The court held that these words had reference to the vesting in enjoyment or possession and not the vesting in interest. In that holding the same disposition is apparent that is found in cases where the word "then" is employed. The courts have given that term the meaning of "in that event" rather than "at that time": People v. Camp 286 Ill. 518; Himmel v. Himmel 294 Ill. 566.

E. M. L.

WATER RIGHTS STREAMS NAVIGABILITY OF STREAMS.—— Closely on the heels of Economy Light & Power Co. v. U. S. (I. L. R. XVII 61) in which the United States Supreme Court dis

agreed from the Supreme Court of Illinois, appears the case of Oklahoma v. Texas 42 Sup. Ct. Rep. 406, in which the court says:

"While the evidence relating to the part of the river in the eastern half of the state [of Oklahoma] is not so conclusive against navigability as that relating to the western section, we think it establishes that trade and travel neither do nor can move over that part of the river in its natural and ordinary condition, according to the modes of travel customary in water; in other words, that it is neither used, nor susceptible of being used in its natural and ordinary condition as a highway for commerce."

In arriving at this conclusion, the court seemed impressed by the fact that the channel here had numerous shifting sand bars, that the channel itself shifted from side to side and often separated into two or three parts, and "boats with a sufficient draft to be of any service can ascend and descend only during periods of high water. These periods are intermittent, of irregular and short duration and confined to a few months in the year."

Attention is called to the rule applied by the state court to determine if a stream is navigable in fact, viz.: "Does the stream in its ordinary and natural condition, furnish a common passage, capable of carrying commerce of practical utility to the public, in the customary mode in which such commerce is conducted by water" (I. L. R. XVII 61). The comment in the LAW REVIEW citation just made. pointed out a distinction apparently observed in the Economy Light & Power Co. case between (a) the customary mode by which commerce is conducted, and (b) the capability of use by the public in any mode for use as an avenue of commerce, and remarked upon the apparent inclination of that case to follow the latter test, (b), to determine the navigability of a stream. In the case now under comment (Oklahoma v. Texas) the court treats the two tests as en rapport and not as distinctive. From which the natural query: Is the United States Supreme Court seeking thus to pave a way for withdrawal from the position assumed in the Economy Light & Power Co. case? It is to be hoped occasion will soon arise for the court to clarify the situation thus projected.

E. M. L.

WILLS-ESTATES-CUTTING DOWN A FEE-PRECATORY PROVISIONS.-In Bohn v. Irvington 303 Ill. 82, 135 N. E. 41, a testator gave all his property to his wife "to have and to hold the same for her own use and to dispose of the same as she may choose,, except by will," and in the succeeding clause, provided a limitation over of what might remain at the death of the wife, introducing it with the words: "It is my further will, etc." In another clause he gave all of his property to the executors in trust for the payment of his debts and the legacies, "above specified, with power to sell and dispose of," etc. Two questions of construction arose upon these provisions. One: Was this an intention by the testator to cut down a fee within the meaning of such cases as Williams v. Elliott 246 III. 552 (“. . . if the first devisee has an estate which he can con

vey in fee simple so as to destroy an attempted limitation over, such limitation is void"). Two: Is the provision introduced by the words: "It is my further will," etc., a precatory one, merely?

First. Upon the first inquiry it should be noted that a fee may be cut down by executory devise (Ashby v. McClintock 271 Ill. 259-263) but the language must be clearly expressive of that intent (Jordan v. Jordan 281 Ill. 426; Spatz v. Paulin 285 Ill. 95, 96; Meins v. Meins, 288 Ill. 465; Noth v. Noth, 292 Ill. 541; Hudson v. Hudson 287 Ill. 298; Bender v. Bender, 292 Ill. 360; Dustin v. Brown 297 Ill. 506); indeed the language of the provision cutting down the fee must be as clear as the clause giving the estate. (Wiltfang v. Dirkson 295 Ill. 365). One authority makes a distinction between disposing of what remains and a disposition upon a happening of a certain contingency, but says one may do either by executory devise (Defrees v. Brydon, 275 Ill. 550): The only limitation upon this power so to cut down a fee by executory devise, appears to be that the limitation over must not be inconsistent with the absolute estate or power of disposition given. (Williams v. Elliott 246 Ill. 552, 553.) In that aspect of it, it would follow that the decision of the court in the principal case holding that the will there in question did cut down the fee, is in line with the authorities, the court pointing out that the provision for conversion is permissive only and not compulsory, so intended only to facilitate the payment of debts.

and to the heirs of

Second. The test whether or not words used in a devise are dispositive or merely precatory is "Does the testator mean by such words to control the disposition of his property?" (Hempstead v. Hempstead 285 Ill. 457.) In that case the words were: "It is my intention and express desire that all property shall go directly to each of my said daughters. their bodies or direct descendants and to no one else ." In holding this provision precatory, the court considered that by the other provisions of the will the daughters were given the fee simple title with full power of disposition and that by the language above quoted, the testatrix was trusting her daughters to carry out her suggestions by making such provision in their wills.

It would seem clear that the language in the case here under observation, is a positive direction, and not merely an expression of trust that the beneficiary would carry out the wishes of the testator, and that the conclusion of the court to that effect is the proper one under the circumstances.

E. M. L.

DIVERSITIES DE LA LEY

"RIGHTEOUSNESS" IN A LEGAL PRECEDENT.-In a fairly recent opinion of Wanamaker, J., in the Ohio Supreme Court (Adams Express Co. v. Beckwith 100 Oh. St. 348, 126 N. E. 300), a decision. that had been law for a century is repudiated. Rightly enough, we may assume, it was cast aside. But what is worth noting is the radical language used in Wanamaker, J.'s opinion in justifying the court's repudiation of a century's settled law. "A decided case." he announces, "is worth as much as it weighs in reason and righteousness, and no more." And this language represents deliberate and persistent convictions, for in Columbus Packing Co. v. State 100 Oh. St. 285, 126 N. E. 291, decided Aug. 27, 1919, the same judge, concurring, announces, "Precedents are worth just as much, and no more than they weigh in reason and justice."

How about this doctrine? What is this standard of "righteousness" and "justice" which is to replace the test of stare decisis?

Of course, some such utterances are on record in various opinions for two centuries past. And, of course also, every jurist and judge has conceded that sometimes a precedent may be repudiated. But what seems to be portended in the Wanamaker type and series of utterances is a general, and even a wholesale repudiation of stare decisis. In other words, if today's views of the court require, by the "righteousness" standard that B and C and D be held to be equal to X, then never, on any subject, need it matter that in former decisions B and C and D have been held to equal Y.

We say that this "seems to be portended." What appears to be coming is a general and larger reconsideration of the principle of stare decisis. It may not arrive for some years, but it can be discerned coming up the judicial road. That seems clear.

If this observation be correct, we may expect to see an element of policy entering into the legal arguments before supreme courts, and a large possibility of judicial changes of rule without resort to the legislatures.

But why handicap the legitimate development of this movement by insisting on "righteousness" as a part of the new standards of judgment? The word is an unfortunate one in this relation. No doubt a moral element will sometimes enter; but is that correctly described as "righteousness"? In the Scriptures, the "righteous" are contrasted with the "sinners"; those two groups antithetically compose a dichotomy for any company. And what has the decision of civil causes to do with Sin and Righteousness?

We move that such implications be expunged from the record. hereafter in Ohio.

J. H. W.

REMUNERATIVE GIFTS BETWEEN SPOUSES-DONATIO DIVORTII CAUSA FACTA [Entscheidungen des Reichsgerichts in Civilsachen V No. 39 (1881)].—

Grounds:

According to the prevailing view based on the sources of common law, remunerative gifts are not an exception to the rule that gifts between spouses are void.

D. 24. 1. 11. I:1 de donationibus inter virum et uxorem :

Sed quod dicitur mortis causa donationem inter virum et uxorem valere, ita verum est, ut non solum ea donatio valeat secundum Iulianum, quae hoc animo fit, ut tunc res fiat uxoris vel mariti, cum mors insequetur, sed omnis mortis causa donatio.

D. 24. 1. 13 pr.; de donat. i. v. et ux.:

Sed si mors insecuta, non videri factas res mulieris quia donatio in alium casum facta est.

D. 24. 1. 60, 62: de donat. i. v. et ux.:

Vitricus et privignus invicem sibi donare praetexto matrimonii non prohibentur. Divortii causa donationes inter virum et uxorem concessae sunt: saepe evenit, uti propter sacerdotium vel etiam sterilitatem.

Et ideo bona gratia matrimonium dissolvitur. Divortio facto nec instaurato matrimonio non confirmabitur inter virum et uxorem facta donatio.

While, according to the above provisions, a 'donatio divortii causa facta' was declared to be valid, yet the question arises whether such a gift, which in Roman law was connected with the law of marriage wherein under circumstances a dissolution was allowable 'bona gratia,' is still valid in modern law which does not recognize such a termination of the marriage relation. Cf. Seuffert Archiv XXXV (N. F. V.) p. 199.

In any event, such a gift is not to be carried beyond the letter of the law or extended to a case not involving an impending separation. That the case at bar does not come within the rule is established by the record.

The objections urged against the judgment below are without merit. The decision may be supported on the wider ground that it is immoral and unlawful when a spouse guilty of marital misconduct attempts to secure an advantage from the other spouse on the eve of divorce.

AN EXCURSION THROUGH THE CHICAGO MUNICIPAL CODE.-
"Of law there can be no lesse acknowledged
than that her seat is in the bosome of God

Hooker, on The Chicago Code, Ecc. Pol. i. c. 18. Somewhere in his treatise on jurisprudence Holland says in making deductions from the doctrine of "ius naturale" that for1. [The citations seem to be incorrect in the original.-Tr.]