immediate interest in the trust real estate for the benefit of his wife for life, and of his son after her death. This deed apparently did not, on its face, purport to be in exercise of the power of appointment, and could (and did) operate as a conveyance of the grantor's defeasible equitable fee simple estate. The grantor also executed (after the last mentioned deed) a will, in which he made no bequest of any kind in favor of his wife, but in which, in one paragraph, he referred to the last mentioned deed as making ample provision for her, and spoke of the "conveyance and appointments therein made by me," and concluded, "I hereby in this my will confirm" said deed. There was no mention, however, of the deed of trust or the powers therein contained. The court held, reversing the lower court, that though the deed could not operate, even in equity, as an appointment under the power in the deed of trust (that power being limited to an appointment by will), the above provisions of the will constituted a valid appointment by will. As the court points out, a testamentary appointment need not in terms state that it is an execution of the power of appointment. It need not mention the powers, or the instrument conferring them, or profess to execute them (31 Cyc. p. 1122). "If the intention to appoint may be clearly inferred by just implication, it will make the execution valid, and operative" (Instant case p. 537). In general where a testator has an estate in the subject of the power of appointment, as well as a power of appointment, a mere general devise of the property will not, without more, be deemed an execution of the power: 31 Cyc. pp. 1123-4; Coffing v. Taylor 16 Ill. 457-474; Grundy v. Hadfield 16 R. I. 579.

In the instant case, the testator had a defeasible equitable fee of which his deed operated as an immediate conveyance. Furthermore, if he survived the trust period (and his deed and will were apparently executed only about three years prior to the expiration of that period) his deed would operate as an indefeasible conveyance of the fee, and the contingency upon which the power of appointment was given would never have happened. Except for the use of the word "appointments" in the will it would seem difficult to sustain the will as an execution of the power. So far as the words of confirmation alone are concerned, they might well be limited to the operation of the deed as a conveyance, and could scarcely, by themselves alone, afford a clear inference of an intention to execute the power of appointment. The words of confirmation, however, taken in connection with the word "appointments" would seem sufficient to afford such inference. It appearing, then, that the testator regarded his deed as an appointment under the power of appointment, the court quite properly, it would seem, declined to adopt a technical meaning for the word "confirm" as simply reaffirming the operative force and effect of the deed as a deed. As the court says, the word "confirm" includes the idea of establishing and effectuating the purposes of the earlier instrument, if for any reason, known or unknown at the time, that earlier instrument was ineffectual to accomplish those purposes. To say that the word

"confirm" meant to confirm not the purposes of the earlier instrument (to convey and to appoint), but the particular method adopted by the earlier instrument for the accomplishment of those purposes, when that method was not (as to the appointment) a possible method to that end, would, as the court says, be a construction adapted to defeat not to effectuate the intention of the testator. The will referring to the deed as both a conveyance and "appointments," the words of confirmation were intended to establish and make effectual the conveyance and appointments by the deed made or attempted.

There appears to be little authority bearing on the question. The court cites Lander v. Lander 217 Ill. 289, holding that while a mere recital (contrary to the fact) in a will that certain estates have been created by some other instrument, does not operate as a devise of those estates, without more, yet where the will goes further, and expresses the testator's will that the donees under that supposed instrument shall have the estates therein provided (as recited), the will itself operates as a devise of the estates referred to. The court also cites Bizzey v. Flight L. R. 3 Ch. Div. 269, where a testatrix having made a voluntary settlement by deed of certain personal property, including certain bank stock, which was (under English law) ineffectual as to the stock, because she failed to transfer the shares to the trustees under the settlement, by her will “confirmed" the settlement, and it was held that the will operated as a specific bequest of the shares upon the trusts of the settlement. This case holds that words of confirmation, in a will, at least, may operate to effectuate (by way of a bequest) a void disposition attempted to be made by another instrument. Under the earlier law, a deed of confirmation could cure a prior voidable, but not, it would seem, a prior void, limitation: Gilbert "Tenures" p. 75 quoted in Boquillas Cattle Co. v. Curtis 213 U. S. 339-344. See also 2 Black "Comm." 325 note; Co. Litt 295b; De Mares v. Gilpin 15 Colo. 76; Turk v. Skiles 45 W. Va. 82; Langdeau v. Hanes 21 Wall 521, 529-30.

Apparently this distinction has not been observed in the American cases, and a void, as well as a voidable, limitation may be cured (or rendered effectual) by a later instrument of confirmation: M. K. & T. R. Co. v. Scales 15 Tex. Civ. App. 689; Weld v. Postal Telegraph, etc., Co. 210 N. Y. 59, 76; Beetem v. Garrison 129 Md. 664, 674; Byers v. We-Wa-Ne 86 Ore. 617, 630-1.

The case nearest in point on the precise question raised by the instant case, that the writer has been able to discover, is Morgan v. Gronow L. R. 16 Eq. 1. There a donee, under a marriage settlement, made on the occasion of his marriage, of a power to appoint a trust fund to the issue of the marriage, made a series of appointments of portions of the fund to various children, among others, one to an unmarried daughter, in the form of a power given her to appoint, her appointment, however, to be effectual only upon, and in case of, her marriage, and, subject to such appointment by her, she to receive the income during her life. This appointment to the daughter was void, as to the gift of the power to her to appoint, as

too remote. Later, and after the daughter had married, the donee executed an instrument of appointment in which he recited all the various prior partial appointments of the fund made by him (including that to the daughter), and expressly by virtue of the power of appointment in the marriage settlement "confirmed" the same, and then made new appointments of the residue of the fund. The latter instrument if a reappointment (or new appointment on the same terms as the old one) was not too remote as to the daughter, since the daughter had then married (in the lifetime of her father, the "life in being" under the settlement). The court held that since the confirmation was expressed to be made in exercise of the power of appointment it clearly constituted a new and valid appointment. The court stated that but for the express declaration of a confirmation in exercise of the power it would have had great difficulty in holding the "confirmation" as anything more than a statement of a desire and intention not to interfere with the operation of the previous instruments as they stood. This case is perhaps to some extent an authority adverse to the ruling in the instant case.

L. M. G.

HUSBAND AND WIFE-PRESUMPTION OF GIFT.-Lutyens v. Ahlrich 308 Ill. 11 apparently makes clear what would seem to have been left uncertain in its prototype, Crawford v. Hurst 299 Ill. 503. The comment in this REVIEW on the case last referred to (XVI 534) suggested that in every conveyance where husband and wife figured either in the relation of grantor and grantee, or that of one paying the consideration and the other getting the real estate, two considerations were involved, viz., (1) that of advancement and (2) that of gift. It was the impression in the comment thus referred to, that in the case of Crawford v. Hurst the court viewed the problem from the consideration of advancement and held that no presumption of advancement arose from the situation projected by such a problem because the wife owed the husband no support; but that no particular reference was made to the other consideration, that of gift.

Now comes the opinion in Lutyers v. Ahlrich, however, and flatly holds that in order for the presumption of gift between father and child, and husband and wife, to obtain at all, there must be a legal obligation to support the presumptive donee. (See on this ILL. L. REV. XVI 529.)

E. M. L.

LATERAL SUPPORT.-In Best Manufacturing Co. v. Creamery Co. 307 Ill. 238, a wall of a building on an alley was undermined, due to excavations along the alley line on property on the other side of the alley, opposite to this wall. The owner of the building injured thereby brought suit, not for loss of lateral support, but for negligent excavation. The case does not go into the various matters relied upon to show negligence, but holds that the evidence in the record sustains the charge of negligence, and the case is valuable

because it is one where the negligence operated through the intervening space of an eighteen-foot public alley.

So far as the plaintiff was concerned, the results justified the form of action selected by it, and for all practical purposes that is enough. Academically, however, one may inquire if the plaintiff could not have proceeded for loss of lateral support as well and recovered for injury to its building on the theory that, while the excavation was on private property, its effect was the same as an excavation in the public alley, and the plaintiff had a right of lateral support in the alley, even for its building (ILL. L. REV. XVI 115). Another interesting complication consists in the aspect of the case, of suit having been brought by the lessee for injury to its possession, which the court recognizes as proper, the damages including loss of profits because of interruption of business.

E. M. L.

CONSTITUTIONAL LAW-CRIMINAL LAW-RIGHT TO RAISE QUESTION OF UNCONSTITUTIONALITY FOR THE FIRST TIME ON APPEAL.-In the case of People v. Berglin 309 Ill. 488, 141 N. E. 295, the following statement is made: "It is insisted section 3 of the Illinois Prohibition Act is unconstitutional. No question of that kind was raised on the trial or by the motion for a new trial, or in arrest of judgment, and it cannot be raised for the first time in a court of review." Is not this too sweeping a statement, and should not the rule of practice, if adhered to at all, be adhered to in civil cases only? Surely the Supreme Court would not sustain a judgment in a capital case against a plea of unconstitutionality, even if it were not raised until the appeal. It may be said that in such cases the board of pardons could be appealed to; but then the board of pardons would be merely expressing an opinion on the unconstitutionality of the act, and there could and would be no proper decision. It is true that the statement quoted was made in a liquor case, but the sentence was an indeterminate one, and the fine was five hundred dollars. The cases which are cited by the court in support of its proposition are hardly conclusive. In the case of Cummings v. People 211 Ill. 392, we have a petty case arising out of the game laws of the state where the fine was only twenty-five dollars, and where in the court below the defendant not only failed to dispute, but asserted the constitutionality of the statute. In the case of People v. Harrison 223 Ill. 540 we are confronted with a ruling in a civil action for mandamus. In Motsinger v. Chenoweth 308 Ill. 31, 139 N. E. 27, the question is the jurisdiction of a police magistrate and the action is a civil action.

A. A. B.

QUASI-EASEMENTS-IMPLICATION OF GRANT AND OF GRANT BACK.-The case of Hoepker v. Hoepker 309 Ill. 407, ... N. E. .., recalls the comment in ILL. LAW REV. XV 101, which refers to a distinction observed by some authorities relative to the implication of easement between the two situations: (1) Where the common

owner of premises conveys the portion in favor of which the easement is claimed and retains the portion upon which it is sought to impose the easement; and (2) the situation where he conveys the part upon which it is sought to impose the easement, and retains the part in favor of which the easement against the other is claimed.

Because there can be no easement while the premises are in common ownership, the situation always calls for the creation of the easement by implication from the circumstances existing at the time of the conveyance, and there are authorities that deny the creation of an easement in the second situation where under the same circumstances they would concede its creation in the first situation, solely upon the proposition that the presumption is to be applied most strictly against the grantor. As was indicated in the comment above cited, Illinois makes no distinction between the two situations, and requires only that it be shown that the user out of which the easement is claimed was continuous during the common ownership, apparent, and reasonably necessary, the last requirement being translated into "highly convenient" by the authorities.

In the principal case, the user out of which it was alleged the easement arose was a way which was visible from deeply worn tracks made by long years of use and continuously traveled during the common ownership. Its obstruction, it was alleged, would deprive the owner of the portion claiming the benefit of it of a way from the residence on that portion to church and school and to a certain timber land used for obtaining fuel for use on that portion of the common premises for which this way was claimed. This was held to be sufficient showing of continuousness, apparentness, and reasonable necessity.

While it is immaterial so far as the rule in Illinois is concerned, it is interesting to note that the situation in the principal case was neither that of the first situation above (implied grant), nor of the second situation (implied grant back), but it was a situation where the grantor divested himself of both portions, dominant and servient estate alike, at the same time, for both portions passed by will. In such case, even in those authorities that observe the distinction between implied grants and implied grants back, no presumption for or against either grantee or devisee can be made: Johnson v. Jordan 2 Met. 234; Larsen v. Petersen 53 N. J. Eq. 88.

E. M. L.

CONSTITUTIONALITY OF ACT LIMITING RIGHT OF MUNICIPALITY TO DIVERT WATER FLOW.-In the case of City of Trenton v. State of New Jersey 43 Sup. Ct. Rep. 534, the state of New Jersey recovered judgment against the city of Trenton for $14,310 in an action brought in the state Supreme Court. The judgment was affirmed by the Court of Errors and Appeals of New Jersey (117 Atl. 158), and defendant brought error.