pected heir was a son, one-third was to go to the wife and two-thirds to such son. Shortly after the testator's death the wife gave birth to twins-a boy and a girl. The question now puzzling the lawyers is: How shall the estate be divided? The wife claims one-half the estate because she had a daughter; the daughter's guardian claims one-half the estate under the will, and the guardian of the son vows he will not accept less than two-thirds of the estate. The matter is now pending in the Hickman Circuit Court. While the judge is trying to solve this question the lay members of the profession are trying their "prentice han'." One attorney in New York City thinks it a case of "lapse;" that the "testator" died intestate, and that the law must make his will. Another, writing from Frankfort, Ky., says: "My solution of the question is, to construe the will as devising to the mother fivetwelfths of the estate, to the daughter three-twelfths and to the son four-twelfths; that is, one moiety to the mother and daughter in the proportion of one-half to each; and the other moiety to the mother and son in the proportion of one-third to the mother and two-thirds to the son." And a Hoboken attorney comes to the same conclusion. He says that he "simply bequeathed his estate twice. If he left a daughter he gave half to the widow and half to the daughter. If he left a son he gave one-third to the widow and two-thirds to the son. So each legacy abated fifty per cent. The widow took five-twelfths, the daughter one-fourth and the son onethird." The harvest has come and gone, but the "heated term" is not nearly exhausted yet, and there will be abundant opportunity for the athletic members of the profession to wrestle this "customer" ere the season arrives for settling down to hard work.

PERSONAL.

In view of the fact that within the past month there has been "much ado about nothing," the latter taking the shape of certain litigation in which the editor-in-chief of this paper has been grossly misrepresented, it is considered but just to himself and the readers of the LAW JOURNAL to say a few words to place the record in accord with the facts.

One of his clients for the past three years, was guardian of her own children, whose estate, entirely personal, was in Kentucky. After protracted litigation this, amounting to $15,000, was recovered and transferred to Ohio and placed in the hands of the guardian; who, in turn, placed it with her attorney, Mr. Bowman, to remain subject to her order. Being reckless and extravagant, the guardian within a year drew by order and check the entire fund and converted it to her own use. She then fell into the hands of an attorney named Holmes who persuaded her that she could recover the money again from Mr. Bowman, because he knowing that it was a trust fund should not have allowed her to draw and squander it!

being

Under this persuasion, suit was really entered against Mr. B. for the entire amount, "conversion to his own use alleged, as a smart fiction of law.

The absolute idiocy of this claim, as a legal proposition, is only matched by the baleful malice of the action.

Mr. Bowman promptly produced his receipts for the payment of every dollar of the money deposited with him, and as promptly brought suit against Holmes for false, wilful and malicious defamation of character, laying damages at one hundred thousand dollars.

The additional fact that Holmes in the same action against Mr. Bowman asked for the appointment of a receiver for the Ohio Law Publishing Company without making the latter a party, reveals the deep knowledge of law which produced the sage advice given to his client, the guardian above named. This will fully explain the whole transaction.

WILLS.

Michigan has taken the initiative towards the suppression of litigations over wills by making provisions for having all wills admitted to probate before the testator's death, if he so desires. All persons interested as heirs or otherwise must then question his capacity to make a will, or forever after hold their peace, for no will admitted to probate during the life of the testator can afterwards be contested on the ground of incapacity to make a will.

NOTES OF CASES.

HOMESTEADS.

Ir is a familiar principal of law that right to a homestead is lost by abandonment or removal from the state, yet such right is not lost when the head of the family removes to another state for the purpose of establishing a new homestead, and his family remain in the old one, Savings Bank of Decorah v. Kennedy, 13 N. W. Rep. 479. A homestead may be lost by conveyance, so also may the right to it be destroyed by conveying a part of it, where the conveyance is of an undivided moiety, "so as to turn the estate into a tenancy-in-common," Kellersbergher v. Kopp. 6 Cal. 565; Carroll v. Ellis, 11 Pac. C. L. J. 434; for no homestead attaches upon lands held in common, Bishop v. Hubbard, 23 Cal. 517; Ellis v. Verdugo, 27 Id. 517. The California court also hold that a double house intended for two families, no break or opening or connecting opening existing in the dividing wall, one side being occupied by an insolvent debtor, and the other by his tenant, can not be held exempt as a homestead, Tiernan v. Creditors, 3 O. L. J. 536, although the part occupied by the debtor may be.

HUSBAND AND WIFE.

THE Supreme Court of California in the case of Thomas v. Desmond, 11 Pac. C. L. J. 438, hold that only where property belongs to a woman as her estate is she considered in law a feme sole; and that where the property is derived from the separate property of the husband by the wife for the purpose of doing business as a sole trader it remains the property of the husband and subject to the payment of his debts. It is further said that "as a debtor he could not voluntarily surrender property to his wife, nor could she voluntarily assume the possession and ownership of it, to the prejudice of his creditors. Such contracts are considered in law fraudulent and void as to the creditors of the husband," Guttman v. Scannell, 7 Cal. 455; Hurlburt v. Jones, 25 Id. 225. It

is well settled that where the business is the husband's or he sustains such relations thereto that the wife's services but augment his profits, that the wife can acquire no separate property therein which will be exempt from liability for her husband's debts, Quidots v. Pergeaux, 18 N. J. Eq. 472; Cramer v. Reford, 17 Id. 367; Belford v. Crane, 16 Id. 265; Skillman v. Skillman, 2 Beas. 403. A husband may set his wife up in business where by so doing he does not interfere with his ability to pay existing indebtedness, Lockwood v. Collin, 4 Robt. 129. And it has been held that where a husband furnishes his wife with the money necessary to carry on a business, that the proceeds arising from such business becomes her separate property and exempt from liability to pay her husband's debts, whether they existed at the time the money was furnished or were contracted subsequently, Sammis v. McLaughlin, 35 N. Y. €47. An insolvent husband may make gifts of money, not subject to execution, to his wife and it will become her separate estate to the exclusion of creditors. And it has been held that where property is purchased in the wife's name and paid for out of the husband's wages that it becomes the separate property of the wife, and exempt from execution for husband's debts where the payments were made from wages exempt from execution, Dreutzer v. Bill, 11 Wis. 144; Pike v. Miles, 23 Id. 164; Delashment v. Fraer, 44 Ia. 613; Robb v. Brewer (Ia.), 16 Cent. L. J. 356.

ORIGINAL ARTICLES.

SALE FOR "CASH."

Just what the term " cash means is not a little difficult to determine. It has never been judicially "constructed," although the word has been before the courts at different times, and they have determined what is not cash. It was judicially passed upon by the Supreme Court of California in the case of Hooper v. Flood. The court say: "In respondent's brief it is said, that, modern times, there is no word in the

in

English language so pregnant with meaning as the little word "cash," used in the proper relations,' *** and that 'it contains a word of significance.' On turning, however, to the standard dictionaries of the English language, we find that its primary meaning is 'a box;' and that the common meaning is 'money,' and that it sometimes means 'ready money."" (54 Cal. 221.)

In the same case it is held that, where the word cash is used by way of description of the terms of a contract, it does not signify anything. It was held in Haviland v. Chace, decided in 1860, that a note is not cash and cannot take the place of cash, although it is shown that the payor has the money on deposit, in bank, to pay the same (66 Barb. 283); and in Gunter v. Sanchey, that gold-dust is not cash (1 Cal. 45). It is said that there is a tradition in the commercial world. that "cash" means within "thirty days" (21 Alb. L. J. 244); but this tradition might prove as unreliable as the legend of "the man in the moon," should you attempt to "lodge" a case, "build a defense," or "hang" a jury on it-badly as the average jury needs hanging!

It was held in Haswell v. Hunt et al. (5 T. R. 231), that, where goods were sold, to be paid for "cash down," the delivery, without demanding the money, vests the title thereto in the purchaser, The delivery of the thing sold, made unconditionally, where not procured by fraud, vests the absolute property in the purchaser (Lupin v. Marie, 6 Wend. 77-81; Chapman v. Lathrop, 6 Cow. 110).

It is said in Russell v. Minor (22 Wend. 659), decided in 1838, that where, on the delivery of property sold, an act is to be done by the purchaser, and the seller delivers the property, without requiring the act to be performed, the delivery is a waiver, and the property is transferred to the purchaser, although he has failed to comply with the terms of the conLact (2 Kent. 496). In Hussey v. Thornton, Chief Justice Parsons declared that, where goods are sold, to be delivered on the performance of a concurrent stipulated act by the purchaser, the vendees are bound to recollect the condition they, themselves, made, and not to deliver the goods until it is complied with, because such a delivery is absolute (4 Mass. 405