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The reasoning used in the principal case is somewhat like that which the California court uses in Los Angeles Traction Companyv. Wilshire, 17 and cannot be said to be in accord with strict legal principle. Where it plainly appears that there was to be no commission under the express offer until the very act called for has been done, it would seem that the most satisfactory solution of the problem would be to allow the plaintiff to recover the reasonable value of his labor and services as having been performed at the implied request of the defendant.18 There are of course many cases in which the owner authorizes several brokers and gives to none an exclusive agency. In such cases, it would ordinarily be unreasonable to find an implied request and no recovery should be allowed.
Where, however, a request should be implied, recovery would be allowed for expenses incurred. In the principal case, instead of allowing the plaintiff to recover his commissions, it would seem that the court should have allowed him to recover merely the reasonable value of his services, upon the theory of an implied request.
Charles V. Parsell, Jr., '19. Wills: Witnessing through an interpreter.—The question as to whether a will can be made through the medium of an interpreter is presented in the case of Hill v. Davis, 167 Pac. (Okla.) 405 (1917). The testatrix could speak and understand only the Creek language. Two of the three witnesses who purported to attest the execution could not speak and understand that language; one of the witnesses could speak and understand both languages. The declaration that the instrument was her will and the request that the witnesses sign their names thereto as such were made by the testatrix in the Creek language. This was understood by one of the witnesses and interpreted and repeated by him in English to the other two, the testatrix not understanding the English interpretation. The court, overruling a previous case in the same jurisdiction, held that the declaration and request to sign were made by testatrix to only one attesting witness, and the will was denied probate because the statute required two attesting witnesses.
It is surprising that there is a dearth of authority on a question of this kind which might have been expected to arise frequently. At first blush it would seem that there should be no objection to a will thus made because the use of an interpreter in business affairs is not an uncommon occurrence and the courts consider him an agent for both parties and that each party adopts the interpreter's words as the words of the other party. But upon consideration of the reasons for the strict provisions of the Statute of Wills, to prevent fraud and imposition, and the attitude of the courts toward the statute, it can be seen that the question is one not free from difficulty.
The question as to whether it is essential that there be a publication of the instrument as the will of the testator was unsettled in the early
17 Supra, note 7.
18For a case which allows a real estate broker to recover in quantum meruit for the reasonable value of his services, see Glover V. Henderson, 120 Mo. 367 (1894).
part of the last century. By statute in New York in 1830 publication was required, while in England it was settled in 1837 that publication could be dispensed with. Although the courts have said that only a substantial compliance with the statute is necessary and that no formal declaration or any particular words that the instrument is the will of the testator are required, still they have from the first refused to be satisfied with anything that would not fully comply with the purposes of the statute, by which certain formalities are required in order to minimize opportunities for fraud.3
Although no formal assertion is necessary it is well settled that it is not sufficient that the witnesses have learned from other sources that the document which they are called to attest is a will, or that they suspect or infer from the circumstances that such is the character of the paper. As was said in a leading New York case,5 “The fact must in some manner, although no particular form of words is required, be declared by the testator in their presence, that they may not only know the fact, but that they may know it from him, and that he understands it and at the time of its execution designs to give effect to it as his will
*." Thus it has been held that acts or signs by the testator which were understood by the witnesses constituted a sufficient publication. A will may be valid where the publication and request to sign is made through the intervention of a third person, but the court requires the communication by the third person to be made in the presence and hearing of the testator and of the witnesses so that the witnesses may know, of their own knowledge, that what was said or done by the third person on behalf of the testator was assented to by him. Where the publication and request is made through an interpreter is it within the hearing of the testator and witnesses, where neither can understand what is being said to the other? Certainly the witnesses can not say of their own knowledge that the testator intends the instrument to be his will. And since the testator cannot understand what is being said to the witnesses he cannot assent since the assent pre-supposes that he knows what the interpreter is saying.
Where a third party stated that the instrument was the "will and agreement”'s or the “will and deed”! of the testator, and both the testator and witnesses understood what he said, it was held there was no valid publication. Where an interpreter is employed how
Remsen v. Brinckerhoff, 26 Wend. (N. Y.) 325, 330 (1841). 2 Lewis v. Lewis, 11 N. Y. 220 (1854); Gilbert v. Knox, 52 N. Y. 125 (1873). Remsen v. Brinckerhoff, supra, note 1; Lewis v. Lewis, supra, note 2. *Lewis v. Lewis, supra, note 2. 5 Lewis v. Lewis, supra, note 2. 'Lane v. Lane, 95 N. Y. 494 (1884).
"Harp v. Parr, 168 111. 459 (1897); Elkinton v. Brick, 44 N. J. Eq. 154 (1888); Coffin v. Coffin, 23 N. Y. 2, 15 (1861); Peck v. Cary, 27 N. Y. 2 (1863); McDonough v. Loughlin, 20 Barb. (N. Y.) 238 (1855); Thompson v. Stevens, 62 N. Y. 634 (1875); Burke v. Nolan, i Dem. (N. Y.) 436 (1882); In re Voorhis, 125 N. Y. 765 (1891); Troup v. Reid, 2 Dem. (N. Y.) 471 (1884); Gilbert v. Knox, supra, note 2; Matter of Holmberg, 83_Misc. (N. Y.) 245, (1913).
8Rutherford v. Rutherford, i Denio. (N. Y.) 33 (1845). 'Lewis v. Lewis, supra, note 2.
are the witnesses to know the instrument is a will and not a deed or some other document? They cannot infer it from the circumstances.1 The witnesses have no assurance except the statement of the interpreter, and the verity of his act would seem to be entirely dependent upon his testimony, as to the truthful interpretation. It would seem to be no answer that the parties have made the interpreter their agent and both depended upon and adopted his words. The witnesses must attest the acts of the testator. Attestation is a mental act and where they cannot understand the testator, there is an absence of understanding which ought not to be supplied by the statements of a third party who may or may not be truthful. In the case of Bell, Admr. v. Davis, 11 which is expressly overruled by the principal case, reliance was placed upon the adoption of the testator's words by each party, but clearly the witnesses cannot attest of their own knowledge when they must depend upon the verity of a third party for the truthfulness of the interpretation.
This conclusion is supported by a strong dictum in Stein v. Wilzinskil2 which seems to be the nearest case in point. There the testator, a German woman, spoke broken English and understood English and one of the witnesses who was unacquainted with German asked her if the instrument was her will. She replied “Ja,” which the witness understood because another witness appeared to ask the question in German and she answered the same way. It was held the publication was good. The court assumed the exact situation which is presented in the principal case and said it would fall far short of the requirements of the statute.
In some instances in New York13, and particularly in a recent case in the Supreme Court, the courts have used language which might be deemed sufficiently broad to give validity to a will witnessed through an interpreter, but the question presented in the principal case was not involved. In view of the purposes of the formalities of the statute it would seem that the holding of the principal case is correct. Although in some cases hardship might result, the formalities prescribed by the statute are safeguards thrown around the testator to prevent fraud and imposition and as the right to make a will is statutory and not an inherent right, they must be at least substantially complied with and it is doubtful whether they are here.
Harvey I. Tutchings, '18.
10 Lewis v. Lewis, supra, note 2.
Cases and Other Authorities on Legal Ethics. By George P. Cos
tigan, Jr., Professor of Law in Northwestern University. West
Publishing Company, 1917. pp. xxvii, 616. Under the above title Mr. Costigan has brought together an interesting and valuable collection of material that neither practitioner nor student would be likely to read in its scattered form. History, snatches of biography, cases adjudged by courts, hypothetical cases decided by bar committees, professional and lay dissertations, resolutions and canons have been arranged under progressive topics so as to present an orderly and readable treatment of the privileges and duties of a lawyer in his many activities. The book has received flattering comment from the reviewers. Judges, teachers and busy lawyers alike have found it interesting and prophesy better conditions from its reading. As to whether it will solve the problem of teaching legal ethics in the law schools there is probably much difference of opinion.
One reviewer has questioned whether this is a case book, because of the intermingling with cases adjudged by the courts of so much material which might more properly belong in a text book. Mr. Costigan, however, justifies the title of case book (in his introduction) because it contains cases adjudged by courts and by bar committees. Any contention over the appropriateness of the title would seem profitless unless it be conceded that instruction in legal ethics should be by the orthodox case book method. If this be conceded then it would appear that a considerable portion of the treatment of the subject in Mr. Costigan's book is dogmatic in character. Very few of the bar committee adjudications attempt to give any valid reason for their holdings. Many of the judicial opinions reported are little better. If the cases are subjected to analysis by student or instructor they must be read in connection with the text matter that is contained in the book. It may be that this is possible, and that it will prove convenient to have the historical and text matter so accessible.
But assuming that this is an orthodox case book the question remains whether we should have a case book on legal ethics? Can the law curricula bear the burden of the time required by this method of treatment? Will not some other direct or incidental treatment requiring less time suffice? In justification of a case book it might be suggested that a case book treatment of other subjects has made a like treatment of legal ethics imperative. Not only is a student likely to consider the course of little importance because of the different method of treatment, as pointed out by Mr. Costigan, but the emphasis placed upon analysis in case book instruction has taught him to go behind dogmatic statements and to look for fundamental principles. When he finds that principles rest only upon traditions and historic conditions, having little or no application to modern needs, he is dissatisfied and would welcome a change. The American law student of today is democratic. He comes from an atmosphere
impregnated with commercialism. In this respect he differs from the law student in England or the law student of our own colonial days. He does not approach the law with any particular respect for traditions. His democracy is fostered and encouraged by a continuous picking to pieces and subjecting to a rigid test of analysis of decisions by eminent jurists. Is it to be expected that his mind, the product of case instruction, will humbly bow before dogmatic statements of bar associations as to what he should and should not do if based upon nothing more than a tradition in a certain guild? Assuming that his moral nature and training are all that they should be, what is there criminal or immoral about commercial practices in the law? If the merchant may honestly indulge in certain practices why not the lawyer? There is a decided undercurrent of this character among law students, and a betterment of present conditions may not be hoped for until the coming generation of lawyers is given something more than a tradition, more than an answer that refraining from certain practices is the style. Legal ethics will bear an analytic treatment.
Whatever method of instruction a school may select, whether Cases and Other Authorities on Legal Ethics does or does not solve the problem it is a valuable contribution to legal literature and a welcome source book to which lecturer and student may go for material.
O. L. McCaskill.
The Law of Partnership, Including Limited Partnerships. By
Francis M. Burdick, formerly Dwight Professor of Law, now
tion. Little Brown & Co., Boston, 1917. pp. lxxi, 477. For the new edition of this book we are indebted to the enactment in a number of states of the Uniform Partnership Act. Its primary purpose is to indicate and discuss the changes in partnership law, which that Act has made and is making. The Act itself, the new Limited Partnership Act, and the Partnership Act of New York, are given in appendices. At the same time, many cases decided during the eleven years since the publication of the second edition have been cited and commented on. The cases cited continue to be in the main either leading or illustrative, for the book is a text and not a digest.
A theory is more or less abroad that the law of partnership is simple. It is sometimes said that one cannot go wrong if he knows and applies the principles of contract. But respect for partnership law-considered as an exercise or an accomplishment—increases with acquaintance. It is submitted that the involutions and evolutions of individual creditors and partnership creditors, partnership realty, the purchase of a partner's interest, can no more be solved by the unaided light of contract law than by the light of nature. Such matters, when one has occasion really to grasp them, are quite capable of making themselves felt; and to a grasp of them Professor Burdick's concise, highly organized, and analytical book is a perfectly invaluable aid.
Henry W. Edgerton.