resident, although not personally yet to the extent of his property held, or his occupation or business carried on therein, to a duty to pay taxes not more onerous in effect than those imposed under like circumstances upon citizens of the latter state."

The last observation of the Court brings up what to our mind is the strongest objection which the plaintiff in the Shaffer Case raised to the constitutionality of the Oklahoma act, i. e., that it permits residents to deduct from their gross income not only losses incurred within the state of Oklahoma but also those sustained outside of that state, while non-residents may deduct only those incurred within the state. The Court, however, in answer to this contention calls attention to the fact that the difference in this respect is "only such as arises naturally from the extent of the jurisdiction of the state in the two classes of cases, and cannot be regarded as an unfriendly or unreasonable discrimination.”

To our mind the plaintiff's contention. cannot be so easily disposed of as the Court attempts to dispose of it. The Court admits that a state may permit its own citizens to deduct from gross receipts losses wherever these accrue, but that it is under no obligation to accord to non-residents a deduction by reason of losses elsewhere incurred, for the reason that the state in the case of non-residents, only seeks to tax income from the non-resident's property or business within the state, while it taxes the income of residents from all sources. This argument does not satisfy our mind nor, we suspect, does it fully satisfy the mind of Justice Pitney, who shows what is passing through his mind when he makes the unnecessary observation that "it may be remarked, in passing, that there is no showing that appellant has sustained such losses, and so he is not entitled to raise this question."

It seems clear to us that a non-resident may be put to an unfair disadvantage under the Oklahoma law. His business in

Oklahoma may be only part of a single business carried on in different states. The income of property in other states may be invested in Oklahoma and used to carry on the business there. The net result from the business, regarded as an entirety, may be much less than the net income from the properties located in Oklahoma. Therefore, a non-resident engaged in business in Oklahoma and other states might conceivably be at a disadvantage with his resident competitor engaged in a similar business covering different states, since the latter would be taxed on the net income from bis whole business while the former is forced to pay a tax on the net income of the particular business done in Oklahoma. It seems to us that in order to give to non-residents, who are citizens of another state, the same privileges and immunities that are given to citizens of Oklahoma, the non-resident, engaged in a single business enterprise covering several states, should at least have the right, if he wishes to exercise it, to return his entire income derived from all sources and make the usual deductions for losses elsewhere incurred that a resident of Oklahoma may do. In other words, a non-resident should be allowed to treat a business covering more than one state as a whole or to regard the business in the taxing state as separate and distinct for which a return as provided for in the Oklahoma law would be proper.

NOTES OF IMPORTANT DECISIONS.

THE RIGHT TO ENFORCE AGREEMENTS TESTAMENTARY IN CHARACTER.-The idea which appellate courts sometimes have of their duty in rendering a decision seems to be to reach what the court regards as a "just result" without regard to the logical application of legal principles or controlling precedents. This criticism we believe can be justly made of the Supreme Court of Iowa for its decision in the recent case of Fleming v. Fleming, 174 N. W. Rep. 946, where the court holds that a contract between four brothers to enter into a business relation and to invest the profits of the business in property to be held by them jointly and providing that on the death of any of them the entire property shall belong to the survivors, does not deprive a wife of one of the deceased brothers of her distributive share in the property thus accumulated. While we believe that under the law and the evidence the Court in this case reached a wrong result, our main criticism is of the unscientific approach of the Court to a consideration of the points involved in the case and of its discoursive and academic discussion of principles having no bearing upon the problem involved. The following was the contract which the Court was called upon to construe:

"Know all men by these presents that we, Robert J. Fleming, Charles Fleming, John A. Fleming, and Stanhope Fleming, of the city of Des Moines, State of Iowa, in order to provide for the future uninterrupted prosecution of the business of life insurance in which we are now or may be hereafter engaged and mutually associated, and to fix and determine the interests of each therein, hereby mutually agree, and bind ourselves, our heirs, executors, administrators or survivors and all other persons, that, each of the parties to this stipulation and agreement, shall have only such share of, and interest in the profits, earnings and income of the business of life insurance in which we are or shall be jointly engaged, as shall be actually received by each or paid upon the order of each, with the consent of the others, from the income of said business. And such amount so paid shall fully represent the share and interest of each of the parties hereto, at any time while we, the undersigned, shall be associated together in said business or thereafter. Upon the death or withdrawal of any party hereto, all his interest in said business shall thereupon cease and determine and at no time shall any accounting be made or required to be made by any party hereto, his representatives, executors, heirs or survivors, or any other person claiming under him, or to any person, officer or representative, upon any basis of labor performed or money received on account of said business by any of the parties hereto or otherwise. And it is distinctly understood and agreed between the par

ties hereto that they, nor any of them have, or can have any property rights, or money interests in said business other than that herein specified and defined, and any sum of money paid to or for any party hereto shall be in full of the interest of said party in said business."

When one of the brothers died, his widow demanded her distributive share in the moiety of the real estate that had been accumulated which she contended belonged to her deceased husband. The Court at first approached the subject on the theory that a joint tenancy had been created. After an academic review of the history of joint tenancies and the hostile attitude of courts and legislatures to this form of interest in real property the opinion properly concludes that this contract did not create a joint tenancy. There can be no doubt that no estate in joint tenancy was created since no property was conveyed nor at the time of the agreement did any of the parties own any property. A joint tenancy can only be created by a conveyance in praesenti in which must be present the four unities of interest, time, title and possession.

The Court then comes to the conclusion that a partnership was entered into by the four brothers. Whether this was true or not was immaterial but even on this theory the Court was in error in regarding the heirs of a partner as entitled to any interest in the real es tate belonging to the partnership. Under the most favorable decisions, the heirs of a partner are only entitled to the share of a partner ancestor in the proceeds after an accounting and by the rule of equitable conversion, in some states, such proceeds (usually cash) will be regarded as realty in the proportion that such assets are the result of the sale of real property belonging to the partnership.

The Court then undertakes to make an emotional appeal in behalf of a wife so cruelly deprived of her interest in her husband's estate by such a contract. "Under our law," says the Court, "the wife, the weaker vessel, the one who maintains the home and rears the children, is entitled to have provision made for her, if peradventure, death robs her of the one legally and morally pledged to support and maintain her. She is entitled to share in such of his estate as by his efforts he accumulates and leaves at his death. The husband cannot take this from her by any testamentary disposition. He cannot contract with her for its release. In view of the legal status of the wife, in view of the relationship which she sustains to her husband, in view of those.provisions of statute that protect and guard her interest during his life and after he is dead, it would seem to be

against the policy of the law, expressed in the statutes, to permit men to legally get together and agree with each other that, upon their death, their wives and children shall receive no portion of the estate which they spent their lives in accumulating. It is a clear fraud on the marital rights of the wife. Many a wife has been a faithful helper in the building of great fortunes. Many a wife, by economy and selfdenial, has been a strong factor in the building. Yet we are asked to say that this wife, who has done faithful service and practiced self-denial for 36 years that something might be left for declining years, must be left penniless."

This appeal by the Court touches our sym pathy but has no place in a serious consideration of the legal rights created by the contract herein involved. Here there was no property of the husband sought to be conveyed for the purpose of defeating the wife's interest. The contract referred to property to be acquired as a result of the labors of four men who agree with each other as to the interest each should have in the property thus to be accu mulated in the future. We know of no rule of public policy which restricts contracting parties from defining their interests to property which may or may not come into existence in the future. In some forms of insurance contracts many of the policy holders are by the terms of their mutual contracts entitled to certain additional rights by virtue of the fact of survivorship. These benefits accrue in the nature of increased dividends. In certain forms of tontine policies rights accrue only on the basis of survivorship and at the expense of those who die before a certain time.

The fact that survivorship is no longer re garded as an incident of joint tenancy does not make invalid contracts definitely, providing that future rights of the contracting parties shall be based on the fact of survivorship. In 17 Am. & Eng. Ency, of Law, p. 650, it is said: "Although the right of survivorship as an incident to joint tenancies be abolished by statute, it may nevertheless be given by will or deed, either expressly or by necessary implica tion. Nor does such a statute prohibit contracts making the rights of the parties dependent upon survivorship." See also Taylor v. Smith, 116 N. Car. 531; Pritchard v. Walker, 22 Ill., App. 286; Jones v. Cable, 114 Pa. St. 586.

The real objection to this contract which the Court might have pressed with more vigor than it did, was that it amounted to a testamentary disposition of property by deed inter vivos. But even if this contract were construed as a testamentary disposition of the property

of plaintiff's husband, it would not for that reason necessarily have been invalid for such a contract, in equity, if made for a valuable consideration fully performed on the part of the other contracting party is valid. Take the familiar case of an agreement to devise all one's property to one who agrees to take care of the deceased during his last illness. Such a contract if performed on the part of the one agreeing to render the services will be enforced in equity and a will made in pursuance of such a contract is "irrevocable," according to Mr. Schouler. Schouler on Wills (5th Ed.) Vol. 1, Secs. 452, 453, citing many cases. So, even regarding this contract as being in the nature of a testamentary disposition, there can be no objection to an agreement providing that after one's death his property shall belong to the other contracting party. The property under the contract was the product of the labor of the other contracting parties who may have conceivably entered into it and contributed the labor of a life time only on the theory that they would be entitled to the share of the others. A contract is void as a testamentary disposition only when it is in the nature of a gift, not where it is the consideration for services or property received by the party so disposing of his property after death.

But it seems to us that this contract should properly be regarded as a contract defining the interest of the parties in property to be accumulated in the future and we know of no rule of law which prevents parties from defining their respective interests in property thus to be acquired or produced by their joint efforts. In thus defining their interests in such property they may properly provide that their several interests shall be for life with the fee contingently in the survivor. Under the contract in the present case it was specifically provided that none of the parties thereto had any "property rights" in the property "other than that herein specified and defined." It is, therefore, an improper interference with the right of contract for a Court to take the property contributed and accumulated by the other contracting parties and give it to those who have no right to it under the contract and thus deprive the other parties to the contract of the promised reward after they had fully performed the contract on their part.

It is in keeping with the superficial character of the Iowa Court's consideration of the problem involved in this case that they should fail to have observed the application of a contrary principle, announced by them just six months before in the case of Stewart v. Todd,

173 N. W. 619. In that case a husband and wife entered into a contract to conduct a business as a partnership in which certain provisions were practically identical with the case at bar. In this contract the parties provided that "all the property accumulated, purchased, and owned by either party to be in the firm name. Both parties to use any money they need, and at the death of either party the one living shall fulfill all contracts, pay all debts, and have all property left or owned by either party, or in the firm name."

The contract in the Stewart case was clearly a testamentary disposition, but the Court upheld the contract in favor of the surviving husband as against the wife's will which attempted to devise her share of the property, which was largely real estate, to certain of her relatives. In this case the Court properly ignored the question whether a partnership had been created for the obvious reason, as the Court states, that the rights of the parties do not arise out of the partnership relation but out of the specific provisions of the contract into which they entered, which provided that property to be accumulated by their joint efforts should belong to them as partners while they lived and go to the survivor on the death of either. In answer to the objection that such a contract was an attempt to make mutual wills, the Court said:

"It is true that as a testamentary instrument it cannot be enforced, but an agreement to leave property to another, resting upon a consideration, is valid and binding, and will be enforced by the courts."

In Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 596, 16 Am. St. Rep. 528, the same result was reached. In this case the Court held that:

"Where husband and wife bind themselves to make a particular disposition of their property by will, and such contract is fully per formed on the part of the husband, and the benefits received and accepted by the wife, equity will prevent the wife from violating her part of the contract in fraud of parties interested, and that, if a conveyance is made by her after the death of her husband in violation of her agreement, the conveyance may be set aside at the suit of the parties for whose benefit the agreement was made. See, also Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802."

RESTRICTIONS UPON RESALE OF AN ARTICLE TO PREVENT PRICE CUTTING.There have been many decisions and much argument over the question of the right of a merchant to impose such restrictions upon his vendee as will prevent the latter from selling

the article purchased below a price fixed for resale of the article. The subject is also cov ered by the Sherman and Clayton Acts which have been construed as prohibiting restrictions on resale of patented articles. Boston Store V. American Graphaphone Co., 246 U. S. 8, 38 Sup. Ct. Rep. 257. But all contracts prohib iting price cutting are not against public policy and the distinctions to be observed in this respect are made clear by the Vice Chancellor of New Jersey in the recent case of Ingersoll & Bro. v. Hayne & Co., 108 Atl. Rep. 128.

The complainant, a manufacturer of cheap watches, asked that the defendant be restrained from re-selling complainant's watches known as "Yankee Watches" for less than $1.35 each. The theory of the suit was not that complainant desired to interfere with the property right of the defendant but that he wished to protect his trade name "Yankee Watch." He offered to permit defendant to purchase the identical watch without the name, "Yankee Watch," and sell it for what. he wished. The Vice Chancellor in sustaining the defendant's bill said:

"It is also well recognized that a person has a property interest in his trade-name and good will, and will, even in the absence of statute, be protected against injury to that trade-name and good will. This right has in this state been as above indicated recognized by statute. Since the opinion of the Supreme Court in Standard Oil Co. v. United States, 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734, it has been recognized that the Sherman Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. §§ 8820-8823, 88278830) and Clayton Act Oct. 15. 1914, c. 323, 38 Stat. 730, must be construed in the light of reason. To say that Congress intended to prohibit an act which had the effect of stimulating interstate commerce and stimulating competi tion rather than putting a restraint upon either is, I think, to state an absurdity. The proofs before me demonstrate that, if defendant and others are permitted to pursue their practice of price cutting, the business of complainant will be ruined and thereby the volume of interstate trade be reduced, or a method of distribution will have to be adopted which will greatly increase the price to the consumer, which will necessarily result in reducing the volume of interstate traffic; that in either event competition will be effectively reduced."

The Chancellor also called attention to the fact that such a use of the trade-mark of a well known manufacturer is a fraud upon the public. The Court asks why retailers desire to sell a certain trade-marked article at or below cost and answers his own question. "So that retailers," says the Court, "may make