the power does not enlarge the life estate into a fee, and the devise over will be good." Many adjudicated cases assert the same doctrine. In Fairman v. Beal,5 the devise is as follows: "To my beloved wife the farm on which I now live during her natural life to take the issues and profits thereof; at her death she may dispose of it as she pleases." The court says: "The creation of the life estate controls the operation of the power and prevents it from enlarging the estate to fee." In Flintham's Appeal, Tilghman, C. J., says: "The law is well settled, that if there be a bequest of a sum of money to a person to be disposed of at his death as he pleases, it vests in the legatee and goes to his representatives, though he makes no appointment nor disposition of it by will or otherwise. But if it be given for life with power to dispose of it at his death it does not vest absolutely and shall not go to the representatives of the legatee unless some disposition be positively made of it."6 And Gibson, J. laid down the law in these words: "A power of disposition at death engrafted on an express limitation for the life of the legatee will not enlarge his interest by implication." In Terry v. Wiggins, the court says: "A power of sale attached to an express life estate will not have the effect to enlarge it to a fee," citing Dean v. Nunnally.8 In Hinkle's Appeal, the will was in these words: "To have and to hold the said estate during his life for his own use and enjoyment as he may see fit, giving my said husband full power to sell and dispose of the same during his life as he may desire, with full power to convev

9

and make

good and sufficient title and conveyances during nis iife." The court held that the devisee took only a life estate. The opinion declares the rule to be that "A power of sale attached to an express life estate will not enlarge it to a fee." In Walker v. Pritchard, 10 the Supreme Court of Illinois had occasion to again examine the question. The will was as follows: "I bequeath to my beloved wife Eloti in lieu of dower," certain lands "with full power and

5 14 Ill. 244.

6 11 S. & R., p. 16.

7 47 N. Y. 517.

8 36 Miss. 358.

9 116 Pa. St. 490, 9 Atl. Rep. 938.

10 121 Ill., 12 N. E. Rep. 337.

authority to sell and convey the title to the above lands at any time and convert the avails to her own use and benefit." The court held that the wife took nothing but a life estate, though with power to convey a fee. In the Court of Appeals of Kentucky the same question arose in Koenig v. Kraft, 11 the will was as follows: "I bequeath to my beloved wife Elizabeth all my estate for her and her child, Emma Kraft's sole use and benefit, and give my beloved full power and authority to sell my real estate." Held, that the widow took a life estate merely, for the use and benefit of herself and child, and the remainder in fee went to the child at the mother's death. In Welsh v. Woodbury, 12 the testator devised his estate to his wife "during her natural life," for her support, etc., and then added these words, "and I hereby give her power to sell in her sole and individual name any of my personal or real estate and to convey and transfer by deed or other instrumeut in her own name for the above named purposes or for investment or re-investment." Then there was a limitation

over to his sister. The court says, Holmes,

J.: "The testator's wife took a life estate coupled with the power, and the limitation to his sister, Mary Hobbs, was valid." In Harbison v. James, 13 the devise was to the wife of "all my property, real and personal giving her the right to sell and reinvest as she may desire, any part of the same for her support, use and benefit," and with a remainder over of what remained undisposed of, to his daughters. The court

*

held the wife took a mere life estate with the power of sale, and that this included the power of mortgage. In McCullough v. Anderson, 14 the will was in these words: "To my most precious and well beloved wife I give during her life all my estate, real and personal with full and ample authority to dispose of the whole as she pleases," with remainder over to the daughter of what remained undisposed of by the wife. The court held, unhesitatingly, that the power of sale did not enlarge the life estate, and that the wife took for her life only.

The Supreme Court of Virginia considered the question in the case of Smythe v.

11 87 Ky. 95, 7 S. W. Rep. 622.

12 144 Mass. 542, 11 N. E. Rep. 762.

18 90 Mo. 411, 2 S. W. Rep. 292

14 90 Ky. 126, 13 S. W. Rep

*

Smythe.15 The will was as follows: "I give to my two sisters Kate and Mattie, all my estate, real and personal, to be by them used and enjoyed during their natural lives ** carrying with such use and enjoyment the right to sell and convey such real estate, should they find it desirable to do so and at the death of my two sisters I desire whatever of my estate may remain shall vest in and become the property of my little boy Claude." The court say that the court below decided that Kate and Mattie Smythe take under the will only a life estate and do not take an absolute fee simple.

We

are of opinion that the construction of the will by the circuit court as aforesaid is just and proper."

*

* *

It

The question was before the Supreme Court of California, in the case of Morffew v. San Franscisco Company. 16 The will was as follows: "I bequeath all my property both real and personal to my beloved wife Susan Crooks, in trust for our children. It is my wish and desire that my wife shall have control of my estate as wellas the income from it during her natural life and that on the death of my wife after my youngest child shall have attained the age of twentyone years, the estate shall be divided." was contended that the wife took not merely a life estate but the fee in trust; and that the power of sale being added she thus had a power coupled with an interest in the fee; but the court says that, "there is no enlargement of her life estate to be implied from the necessities of the trust; and the life estate in the trustee being created by express words in the will with limitation over, is not enlarged to a fee by the power of sale."17 In Payne v. Johnson, the Court of Appeals of Kentucky quote and approve the doctrine of Chancellor Kent, before quoted, that where a life estate is given with power of disposition "the express limitation for life will control the operation of the power and prevent it from enlarging the estate into a fee." In Brady v. Brady, 19 the provisions of the will were as follows: "I give and bequeath to my wife for and during her natural life, all my

* and the

estate, real and personal, same to dispose of in all respects as she may think proper." The court held that she took a mere life estate, and the court quote the opinion of the Supreme Court of Rhode Island, which we have not seen elsewhere reported, in these words: "When in a will the gift of the first taker is expressly limited to him for life it is not enlarged into an absolute gift by the mere annexation of the power to him to dispose of or appropriate the fee of the capital." In Ernst v. Foster, 20 the court says: "We agree with the contention of the heirs, that the power of disposal given in the will did not enlarge the estate taken by the widow, to a fee. There was devised to her a life estate, and added to that was the separate and distinct gift of the disposal of the fee. This gave her authority to convey the fee and the part undisposed of would extend to the children in accordance with the will.” In Evans v. Folks, 21 the testator devised to his wife My whole estate real and personal, absolutely and to the use of her own interest and benefit during her natural life with full power and authority to dispose of any and all of my real or personal estate as she may think best or see fit." There was a provision that at the death of his wife, if there should be anything left it should be divided between the heirs of his two brothers. Now, upon this the court says: "The authorities all hold that when there is a devise for life in express terms and also a power of disposal conferred by the will upon the devisee, it does not enlarge the the estate to a fee simple."

*

*

*

*

Supreme Court of Indiana. The will devised to the wife all the testator's property "during her natural life, to use, enjoy and dispose of as she may desire," with remainder over of "all that remains undisposed of," to the children.

The court, citing the passage above quoted, from Kent's Commentaries, says: "It seems to be well settled by numerous authorities that where a particular estate is expressly devised a contrary intent is not to be implied by subsequent words; and that an express life estate cannot generally be enlarged by implication," and the court cites Dunning v. Van Dusen, 25 where the court quotes Denson v. Mitchell, 26 in these words: "The authorities, both English and American, seem generally to agree that an express estate for life given by will negatives the intention to give the absolute property and converts words conferring a right of disposition into words of mere power."

25 47 Ind. 423.

26 26 Ala. 360.

CAN CONGRESS REGULATE THE BUSINESS OF INSURANCE?

The Supreme Court of the United States seems irrevocably committed to the position that the business of insurance is not interstate commerce, although the contracts are made between residents of different states. In Paul v. Virginia, it was held that a law of Virginia requiring foreign companies to procure a license and deposit specified securities as a condition to doing business in the state was valid and did not interfere with the right of congress to regulate commerce between the states because the business of insurance was not interstate commerce. The court said: "Issuing a policy of insurance is not a transaction of commerce. The policies are simply contracts of indemnity against loss by fire entered into between the corporation and the assured, for a consideration paid by the latter. These contracts are not articles of commerce in any proper meaning of the word; they are not subjects of trade and barter offered in the market as something having an existence and value independent

18 Wall. 168-195, 19 L. Ed. 357.

of the parties to them; they are not commodities to be shipped or forwarded from one state to another and then put up for sale; they are like other personal contracts between parties which are completed by their signature and the transfer of the consideration. Such contracts are not interstate transactions though the parties may be domiciled in different states. The policies do not take

effect, are not executed contracts, until delivered by the agent in Virginia. They are then local transactions and are governed by the local law. They do not constitute a part of the commerce between the states any more than a contract for the purchase and sale of goods in Virginia by a citizen of New York whilst in Virginia would constitute a portion of such commerce." This case is cited and followed in Liverpool Ins. Co. v. Oliver.2

4

fornia, it was held that the business of a foreign company writing marine insurunce is not protected by the interstate commerce clause of the constitution. The court said: "The contention here is that inasmuch as the contract was for marine insurance it was a matter of interstate commerce and as such beyond the reach of state authority and included among the exceptions to the general rule." This proposition involves an erroneous conception of what constitutes interstate commerce; that the business of insurance does not generically appertain to such commerce has been settled since the case of Paul v. Virginia.5

While it is true that in Paul v. Virginia, and in most of the cases in which it has been followed, the particular contract under consideration was for insurance against fire, the principle upon which these cases were decided involved the question of whether a contract of insurance of any kind constituted

2 10 Wall. 586, 19 L. Ed. 1029.

3 119 U. S. p. 110-129, 30 L. Ed. 342.

4 155 U. S. 648-664.

5 Supra. See also Philadelphia Fire Association v. New York and authorities there cited.

interstate commerce. The court in reaching its conclusion upon this question was not concerned in any matter of distinction between marine and fire insurance but proceeded upon a broad analysis of the nature of interstate commerce and of the relation which insurance contracts generally bear thereto.

The business of insurance is not commerce, the contract of insurance is not an instrument of commerce, the making of such a contract is a mere incident of commercial intercourse and in this respect there is no difference whatever between insurance against fire and insurance against "the perils of the sea." In New York Life Insurance Company v. Cravens, the court held that the Missouri "Non-forfeiture Act" was not a regulation of interstate commerce, saying: "Is the statute an attempted regulation of commerce between the states, in other words, is mutual life insurance commerce between the states?"

6

That the business of fire insurance is not interstate commerce is decided in Paul v. Virginia, Liverpool & L. L. Fire Insurance Co. v. Massachusetts,8 and Philadelphia Fire Association v. New York.9 That the business of marine insurance is not, is decided in Hooper v. California. 10 In the latter case it is said that the contention that it is involves an erroneous conception of what constitutes interstate commerce." We omit the reasoning by which that is demonstrated and only repeat, "the business of insurance is not commerce; the contract of insurance is not an instrumentality of commerce; the making of such a contract is a mere incident of commercial intercourse, and in this respect there is no difference whatever between insurance against fire and insurance against the perils of the sea, and we add or against the uncertainty of man's mortality."

It is noteworthy that the decision in each case upon this point was unanimous and the construction of the term "commerce between the states," as used in the constitution, would seem forever settled, so far as its application to insurance is concerned, and if the business of insurance under the settled construction of the constitution is not commerce

6 178 U. S. 389-401, 44 L. Ed. 1116. 78 Wall. 968, 19 L. Ed. 357.

810 Wall. 566, 19 L. Ed. 1029.

9 119 U. S. 110, 30 L. Ed. 372, 7 Sup. Ct. Rep. 108. 10 155 U. S. 648, 39 L. Ed. 297.'

in fact it cannot be made such by legislative fiat. Where congress possesses the power to act it is undoubtedly the sole judge of the character and extent of such action. If the power exists and is exercised, it will to that extent exclude state supervision, and the question of the wisdom of such action would become pertinent; but so long as the power of congress to regulate is constitutionally limited to "commerce" between the states, and the supreme court so construes the term as to exclude insurance, federal regulation is impossible and its wisdom need not be discussed.

It may be noted in passing that a majority of the supreme court in the recent case of Champion v. Ames, 11 held that the carriage of lottery tickets from one state to another by an express company engaged in carrying freight and packages from state to state is interstate commerce. Mr. Chief Justice Fuller dissented in a vigorous opinion, which was concurred in by Justices Brewer, Shiras, and Peckham, on the ground that the question had been foreclosed by the court in holding that the issue of fire, marine, and life insurance policies in one state and sending them to another, to be there delivered to the insured on payment of premiums is not interstate comI. M. EARLE.

merce.

Des Moines, Iowa.

11 188 U. S. 321-375, 47 L. Ed. 492.

MUNICIPAL CORPORATIONS - DEFECT IN SEWAGE SYSTEM-FAILURE TO REPAIR.

HART V. CITY OF NEILLSVILLE.

Supreme Court of Wisconsin, Oct. 3, 1905. Though a city is not liable for damages to private property caused by mere defects in the plan of its duly adopted and executed sewage system, if it acquires knowledge of such defects and that unless they are remedied they will produce direct injury to private rights, it should exercise ordinary care to prevent such a result, and is responsible for damages caused by failure in that regard.

If, by reason of defects in a plan of sewage contemplating that private property will, as a matter of right, be connected therewith, such property is injured because of water accumulated in a sewer flow. ing therefrom through such a connection to such property, the injury is direct within the meaning of the last foregoing rule.

Statement of Facts: This is an appeal from an order sustaining a demurrer to the complaint for

insufficiency. The material facts stated in the pleading for a cause of action are these: For more than 20 years last past plaintiff has owned and occupied as a family home a lot in the city of Neillsville. Under all parts of the dwelling house thereon there is a basement walled up with stone, and a well adjacent thereto upon which the family depend for a water supply. From time to time prior to July 3, 1903, without having adopted any system therefor, said city by its authorized officers constructed a sewer system and maintained the same to drain property abutting upon some of its streets. In July, 1902, at the expense of the owners of abutting property said city constructed a sewer along the street in front of plaintiff's lots for the purpose of draining such abutting property, plaintiff paying the cost thereof apportioned to his lots. An opening was left in such sewer to enable him to connect therewith a drain leading from his basement thereto. In October thereafter such connection was made. The sewer system of the city was negligently constructed and maintained in that no plan was adopted therefor by the city; the pipe on the street last mentioned from the outlet thereof was too small to properly dispose of the sewage turned into it; catch basins were so placed as to direct into the sewer surface water much in excess of its capacity, the sewer was not laid at a proper slope to make it efficient, a part of the sewer system was so constructed as to turn surface water flowing down a ravine known as "Goose Creek" into it, to such an extent as of itself to fill the pipe so that the added water from catch basins and ordinary drainage necessarily caused sewage to back up into the sewer in front of plaintiff's premises and through the pipe leading to his property into his basement. By reason of such defects, at various times between July 3, 1903, and March 24, 1904, such basement and the well aforesaid were flooded from the sewer, rendering the well useless and the home for considerable periods of time untenantable, and at other times unsuitable for residence purposes, causing

the basement wall under the house to settle and to a considerable extent to fall, and the house to settle and crack and otherwise to be injuriously affected, to his damage in the sum of $1,500. The defendant knew during the time of the construction of the sewer system that it was not proceeding according to any plan having regard to the work that would be required of such system; that the work was being negligently done and that the system would be inefficient. After the system was constructed the defendant had notice of the insufficiency aforesaid which caused the damages complained of.

MARSHALL, J. (after stating the facts): The learned trial court held the complaint to be fatally defective, supposing from the facts alleged, that the injuries complained of were produced by defects in the original plan of the sewer; and that since such defects were rendered injuriously operative as to appellant's property

by his voluntary act in connecting his private drain with the main sewer, the result was not referable to any fault of the respondent. The reasoning which resulted in such conclusions is embodied in an elaborate opinion by the judge containing a careful review of numerous authorities supposed to be in point.

While the law is well settled that, in case the governing body of a city, duly authorized thereto by its charter, adopts a plan for a sewage system and executes the same, it is immune from injuries resulting to private property, not involving an unconstitutional taking thereof, but which are referable to defects in the plan itself— Gilluly v. City of Madison, 63 Wis. 518, 24 N. W. Rep. 137, 53 Am. Rep. 299; Champion v. Town of Crandon, 84 Wis. 405, 54 N. W. Rep. 775, 19 L. R. A. 856; Schroeder v. City of Baraboo, 93 Wis. 95, 67 N. W. Rep. 27; Child v. City of Boston, 4 Allen (Mass.), 41, 81 Am. Dec. 680; Johnston v. District of Columbia, 118 U. S. 19, 6 Sup. Ct. Rep. 923, 30 L. Ed. 75; 2 Dillon's Municipal Corporations (4th Ed.), § 1051-the mere circumstance of the construction of a sewage system by the properly authorized officers of a city does not satisfy that rule. The basic principle thereof is that discretionary authority being vested in the governing body of a city to adopt a plan for a system of sewage, defects in a plan so adopted are referable to mere errors in judgment, and as regards resulting liability for injuries to private rights, are governed by the same rule as mistakes generally in the exercise of quasi judicial authority. It follows necessarily that where such authority is not exercised at all, where though a system of sewage is constructed by a city without any plan therefor, passed upon and adopted by the governing body of the corporation, the reason for exempting it from liability for defects attributable to faults in the plan does not exist. It is not the mere construction of a sewage system by a city which exempts the corporation from liability for injuries caused by its operation growing out of defects in the plan thereof, but such construction according to a plan stamped with judicial approval, so to speak, of the proper governing body.

It has been held, as indicated by cases cited by appellant's counsel, that in order to satisfy the rule stated the city council must not only adopt a plan, but do so with sufficient care to warrant the belief that legal discretion was exercised in the matter; that action in reckless disregard of consequences, as by adopting a palpably defective plan, or adopting one without the aid of some skilled person, where that in all reason is required, cannot reasonably be attributed to mere error of judgment. City of Louisville v. Norris, 111 Ky. 903, 64 S. W. Rep. 958, 98 Am. St. Rep. 437; City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. Rep. 686.

The sufficiency of the complaint before us does not depend upon our going to the length of the two cases last cited. It states plainly that the