ERNST FREUND J.U.D., PROFESSOR OF LAW, UNIVERSITY OF CHICAGO

While the year 1905, as an odd-numbered year with numerous legislative bodies in session, has produced a considerable amount of property legislation, most of it is piecemeal and disconnected, growing out of special needs or intended to remedy particular defects that make themselves felt in the course of practice, without representing large and definite policies. Perhaps the only movement of far-reaching import is that toward the adoption of the Torrens system of registering land titles; but it is also possible to notice certain tendencies in other phases of the law of property, so in the direction of increasing the facility of transfers and the security of titles, perfecting the course of descent and distribution, and enlarging the powers connected with the administration of estates of decedents and of persons under disability.

It will be most convenient to single out under different heads of legislation such statutes as have introduced notable changes or innovations.

Tenure and titles. Wisconsin ('05 ch.511) which belongs to the group of states which modify the rule against perpetuities upon the model of the Revised Statutes of New York, adopts the exception from this rule in favor of charitable uses, which New York introduced in consequence of the Tilden will. The statute appears to have been induced by the decision in Danforth v. Oshkosh, 119 Wis. 262.

'See also Governors Messages and Index of Legislation, 377.

Indiana ('05 ch.130) subjects real estate held by aliens in excess of 320 acres to liability to escheat; but this is really a removal of an existing disability with reference to holdings of less than that

amount.

Eminent domain. A number of states (Indiana, Maine, Minnesota, New Mexico, Oregon, Washington, Wisconsin) enact provisions on this subject. They are conspicuous for the absence of any provision for hearing on the question of the necessity of the taking, which while not constitutionally required, should be provided for. Washington ('05 ch.65) allows the exercise of the power for any public use, the public character of the use being a judicial question. So undefined a grant of power is very unusual.

Dedication. The dedication of streets etc., for public use by the filing of plats on which they are indicated is very commonly provided for by statute. Idaho ('05 p.70), Missouri ('05 p.73), Nevada ('05 ch.126), Oregon ('05 ch.146) and Wisconsin ('05 ch.225) have provisions on this subject, which require approval of plats by the municipal authorities, such approval being conditioned in Missouri upon previous reduction of the streets to the ordinance grade, in Oregon upon conformity to adjoining plats. Here is a field of municipal law capable of considerable development, for beyond insuring a monotonous regularity of plats little has been done in the past in the direction of intelligent control of systems of streets and public places with a view to beauty and to convenience of connections.

Intangible property. California ('05 ch.276), Connecticut ('05 ch.130), Michigan ('05 ch.268), Minnesota ('05 ch.40) and Wisconsin ('05 ch.281) are added to the list of states that afford protection against the unauthorized performance (California also against the unauthorized sale of copies) of dramatic or musical compositions. All these acts apply only to performances for profit, and all except Michigan confine the protection of musical compositions to operas.'

Landlord and tenant. Of the 12 acts dealing with this subject (relating mostly to modes of termination and notice to quit) the only one of general interest is that of North Carolina ('05 ch.297) which makes it a misdemeanor for the tenant wilfully to abandon a lease after procuring advances from the landlord, and for the landlord wilfully to fail to furnish advances after having agreed to make them. This statute belongs to the "agrarian" legislation of the South. An act of Alabama belonging to the same general category has been declared unconstitutional (Toney v. State 37 S. 332),

'For observations on this legislation see Review of Legislation, 1904.

because it also undertook to make the entering into a new contract of employment unlawful except under conditions deemed by the

court too onerous.

Security of titles and facility of transfers. These objects are served by the following statutes: a statute of California ('05 ch.443) requiring a person in whom a title is vested, and who subsequently changes his name, to set forth in conveying the property the name under which the title was acquired; a statute of New York ('05 ch.449) providing that an instrument postponing or subordinating · a mortgage lien must be recorded as a conveyance; another statute of New York ('05 ch.662 amending $1538 Code Civil Procedure), under which it is sufficient in an action for partition, if a future interest is limited upon a contingency to persons who shall constitute a class, to make parties only those who would have been entitled to an interest if the contingent event had happened immediately before the commencement of the action; another statute of New York ('05 ch.450) under which a deed which has been recorded for 30 years shall be deemed duly acknowledged, with a saving for vested rights of bona fide purchasers; an act of North Dakota ('05 ch.125) allowing a discharged bankrupt to procure the cancelation of judgment liens against his property; an act of Pennsylvania ('05 ch.145) to enable persons in possession of land to proceed against persons known or unknown claiming or having an apparent interest in the property, but not having been in possession for 21 years, requiring them to bring ejectment within six months, or show cause why not, or be foreclosed a species of legislation unknown in principle to either common law or equity (except in the case of fines with proclamations) but increasingly favored by modern statutes, and forming a principal feature of the Torrens acts; an act of Texas ('05 ch.128) introducing the system of recording notices of lis pendens, in the absence of which record bona fide purchasers from parties to the suit are to be protected against the effect of a subsequent decree; an act of Wisconsin ('05 ch.234) allowing proceedings to determine the boundaries of riparian rights, similar to actions for partition, while equity has ordinarily no jurisdiction for the settlement of disputed boundaries. Torrens system. Little progress was made in 1905. Massachusetts ('05 ch.249) makes the system applicable to easements; an elaborate new act of Minnesota ('05 ch.305) seems, so far as a necessarily cursory examination shows, merely to remodel and rearrange the act of 1901; Georgia ('05 p.1256) extends the time of the com

mission created for the investigation of the system, to report in 1906; and the Governor of Wisconsin in his message recommends an inquiry into the merits of the system.

Absentees. Pennsylvania ('05 ch.112) supplements the act of 1885 allowing administration on the estate of persons presumed to be dead on account of long absence, by providing for probate of wills under similar circumstances; the act of 1885 has been sustained by the United States Supreme Court in Cunnius v. Reading School District 198 U. S. 458.

Massachusetts ('05 ch.326) provides for the transfer of trust estates to the parties entitled in remainder, to be held by them as trustees, where the life beneficiary has disappeared and has not been heard from for 14 years.

Wills. Wisconsin ('05 ch.128) by making void all testamentary gifts to the husband or wife of a subscribing witness, as well as to the witness himself, disposes of a difficulty with which students of the law of wills are familiar, and which in many states still forms a trap to the unwary (see Fisher v. Spence 150 Ill. 253). England and Massachusetts have similar statutes.

California ('05 ch.448) introduces two valuable provisions: the one recognizing the validity of wills of personalty, if valid according to the law of testator's domicil; this is in accordance with the general principles of private international law; the other, saving testamentary powers of sale, where an afterborn or omitted child takes his intestate share; without such a provision the child takes his share in the corpus of the estate, defeating to that extent the power of sale (Smith v. Robertson 89 N. Y. 555).

Succession and marital rights. An act amending the statute of distribution of personal estates of Michigan ('05 ch.331) contains some noteworthy provisions: if all descendants are of equal degree they take per capita, and not per stirpes; this is contrary to the general rule; and if there are no children, the widow takes $3000 absolutely as against any of the next of kin. New Hampshire ('05 ch.14) gives her in like manner $1500. The statute of Michigan is not perfectly clear as to whether remoter descendants than children of brothers and sisters of the decedent concur with the decedent's surviving spouse; New York ('05 ch.539) excludes representatives among collaterals after brothers' and sisters' descendants, following in this respect (with a slight alteration) the English statute of 1670 and settling the difficulty that arose in re Davenport 172 N. Y. 454.

The favor shown to immediate next of kin appears in a statute of Maine ('05 ch.74) which provides that money received for the insurance on the life of a married woman shall be distributable among her widower and issue, and not constitute assets for the payment of debts.

Homestead rights are further secured in Kansas ('05 ch.154) by the provision that contracts for the sale of the homestead property shall be unenforceable against the party signing unless signed by both husband and wife.

New Hampshire ('05 ch.4) and New Jersey ('05 ch.114, 115) establish rights of succession between a bastard and the mother's kin; and New Jersey ('05 ch. 247) admits illegitimate children whose parents have subsequently intermarried to the succession of the personalty of the surviving parent, but only if there are no legitimate children of the marriage.

A provision introduced by the laws of Michigan ('05 ch.327) to the effect that a surviving spouse shall be deprived of rights of dower and succession, if living at the time of the death of the lawful spouse in a bigamous relation pursuant to a purported marriage, is equally striking in its novelty and in its justice, though it must be of rare application. It is, however, difficult to see how the clause of the act making its operation retroactive can be sustained as a constitutional exercise of legislative power.

The act of Tennessee ('05 ch.11) providing that one who procures the death of another shall not inherit any of the latter's property or take by deed or will taking effect at the latter's death, is, as far as devolution by law is concerned, in affirmance of the decision in Box v. Lanier 112 Tenn. 393 (1903), and applies the same principle to benefits that would otherwise have accrued by the act of the deceased. The point has been discussed considerably in other states (see e. g. Riggs v. Palmer 115 N. Y. 506).

Administration of estates of decedents and of persons under disabilities. Year after year we find new powers created in this department of law in which American statutes have added so much to the principles of probate and equity jurisprudence. On the one hand, extended equitable jurisdiction is conferred upon probate courts or county courts acting as such, as in Wisconsin ('05 ch.163) where they are given power to construe wills, in Illinois ('05 p.186) where they are given control and supervision over testamentary trusts' and in Kansas ('05 ch.191) which confines such jurisdiction

1On account of a formal defect in its passage, this act has been declared void. Lynch v. Hutchinson 76 N. E. 370.