are illustrated in Gray's Cases, are to be found in the Illinois cases.1 The validity of springing future interests created by deed is fully established in Illinois.2 The problem of Hughes v. Ellis is raised in Mills v. Newberry. The Illinois cases illustrate two fundamental and important principles with reference to future interests in personal property which are brought out in Gray's Cases, i. e., that future interests in personal property can be created by deed or will, or even by a mere contract sufficient to pass title; also that upon the gift of a chattel for life with no further limitation, there is a reversionary interest in the settlor or the testator's executor.6

8

Practically all of the rules of construction indicated by such cases as Mr. Gray was accustomed to assign for the consideration of the class when I took his course, are brought out in the Illinois cases, i. e., the rule as to when cross-remainders will be implied; 7 when "survivor" will be construed "other"; the necessity of express words to enable shares accrued by survivorship to pass to survivors; the meaning of "die without issue," including the construction of the phrase "die without leaving issue "; 10 the construction of the limitations where the gift is in case either one of two persons die without issue, then to the survivor; 11 the important rules concerning the vesting of legacies, including the effect of an express direction as to vesting; 12 the force of the phrase " to be paid at twenty-one"; 13 the force of the phrase "to A at twenty-one," qualification of the general rule as to vesting when the postponement is for the convenience of the estate; 15 the effect of the pay

1 Kales, Future Interests in Illinois, §§ 127-135.

2 Shackelton v. Sebree, 86 Ill. 616.

8 20 Beav. 193, 5 Gray, Cas. on Prop., 210.

4 112 Ill. 123.

McCall v. Lee, 120 Ill. 261.

• Boyd v. Strahan, 36 Ill. 355

7 Lombard v. Witbeck, 173 Ill. 396, 409–411.

• Lombard v. Witbeck, 173 Ill. 396; Duryea v. Duryea, 85 Ill. 41.

9 Lombard v. Witbeck, 173 Ill. 396, 409–411.

a

10 Smith v. Kimbell, 153 Ill. 368; Hinrichsen v. Hinrichsen, 172 Ill. 462; Metzen v. Schopp, 202 Ill. 275.

11 Summers v. Smith, 127 Ill. 645; Arnold v. Arnold, 173 Ill. 229; Hinrichsen v. Hinrichsen, 172 Ill. 462; Waldo v. Cummings, 45 Ill. 421; Johnson v. Johnson, 98 Ill. 564.

12 Chapman v. Cheney, 191 Ill. 574.

18 Ruffin v. Farmer, 72 Ill. 615.

14 Powers v. Egelhoff, 56 Ill. App. 606; Howe v. Hodge, 152 Ill. 252, 255-277.

15 Schofield v. Olcott, 120 Ill. 362; Hawkins v. Bohling, 168 Ill. 214; Ducker v. Burnham, 146 Ill. 9-24; Knight v. Pottgieser, 176 Ill. 368; Dee v. Dee, 212 Ill. 338, 352-354

9

ment of income on vesting; the effect of a gift over as furnishing an argument for the vesting of the prior gift; 2 and the rules as to the determination of classes, including the problem of Viner v. Francis, which is precisely reproduced in Lancaster v. Lancaster; the probable meaning of "youngest" when the gift is to the children of A when the youngest reaches twenty-one; 5 and especially the rules concerning the meaning of "heirs" where the gift is to A for life or in fee, with a gift over to the testator's heirs at law. The subjects of the survival of powers, what words exercise a power,8 and appointed property as assets, as these subjects were covered by the assignment of cases when I took Mr. Gray's course, are well brought out in the Illinois cases. On the subject of the Rule against Perpetuities, Bauer v. Lumaghi Coal Co.10 might be substituted for London & S. W. Ry. v. Gomm," Wakefield v. Van Tassel 12 for Dunn v. Flood 13 (holding contra to Dunn v. Flood that a right of entry for condition broken is not subject to the Rule against Perpetuities), Bigelow v. Cady 14 for Slade v. Patten,15 and How v. Hodge 16 for Leake v. Robinson." Where there is a gift to A for life with power in A to transfer the whole interest by deed or will, it is established by an excessive number of Illinois cases that a gift over in default of alienation by deed or will is valid.18 The whole subject of the validity of shifting gifts over upon alienation by deed alone of the first taker or upon alienation by will alone of the first taker, 19

1 Howe v. Hodge, 152 Ill. 252; Lunt v. Lunt, 108 Ill. 307.

2 Illinois, etc., Co. v. Bonner, 75 Ill. 315; Ridgeway v. Underwood, 67 Ill. 419; Lunt v. Lunt, 108 Ill. 307; Eldred v. Meek, 183 Ill. 26.

3 2 Cox Ch. 190, 5 Gray, Cas. on Prop., 307.

4 187 Ill. 540.

5 Handberry v. Doolittle, 38 Ill. 202; McCartney v. Osburn, 118 Ill. 403.

Kellet v. Shepard, 139 Ill. 443; Johnson v. Askey, 190 Ill. 58; Burton v. Gagnon, 180 Ill. 345.

7 Kales, Future Interests in Illinois, §§ 237-242.

8 Kales, ibid., §§ 245-246; Harvard College v. Balch, 171 Ill. 275, 285; Funk v. Eggleston, 92 Ill. 515; Goff v. Pensenhafer, 190 Ill. 200; Foster v. Grey, 96 Ill. App. 38. 9 Gilman v. Bell, 99 Ill. 144.

10 209 Ill. 316.

or upon alienation by deed or will (i. e., upon intestacy) of the first taker,1 or upon the death of the first taker without issue and intestate, is quite as fully dealt with in the Illinois cases as in the English cases which Mr. Gray has given us. I might add that this line of Illinois cases is, apart from any connection with the local law, much more interesting than similar cases which have arisen in England. As showing that a restraint upon the alienation of a fee, either absolutely or for a particular time, is void, Illinois has several cases.3 Lunt v. Lunt* fairly takes the place of Claflin v. Claflin.5

Several nice problems that Mr. Gray apparently could find no case to illustrate when he published his Cases, are to be found solved by decisions of the Illinois Supreme Court. Thus, if the limitations are to A for life with a gift over to the testator's heirs at law, and A is the sole heir of the testator at the time of his death, A will not take the remainder. So, if the interests be to A in fee, but if A dies without leaving issue, then to the testator's heirs at law, and A is one of several heirs at law of the testator, "heirs" means heirs at law of the testator at his death. In Madison v. Larmon we have perhaps the only instance on record of the court taking the view that where a contingent remainder is fully destructible according to the rule of the common law, the Rule against Perpetuities applies to it. In Pitzel v. Schneider there is actually held the rather startling proposition which Mr. Gray announces in the second edition of his Rule against Perpetuities,10 but for which he was then unable to give any authority, that a gift to a class vesting in a single member of the class at the testator's death, may nevertheless be wholly void for remoteness, if as a matter of fact the maximum size of the share of each member of the class may not be determined until too remote a time.

Do not think that because the results of such a classification and arrangement of the Illinois cases may be in part thus easily and simply stated, the process of making it is easy and simple. The

1 Wolfer v. Hemmer, 144 Ill. 554; Kron v. Kron, 195 Ill. 181; and many other cases. See Kales, Future Interests in Illinois, § 169.

2 Friedman v. Steiner, 107 Ill. 125; Burton v. Gagnon, 180 Ill. 345; Koeffler v. Koeffler, 185 Ill. 261; Orr v. Yates, 209 Ill. 222.

8 Jones v. Port Huron Engine Co., 171 Ill. 502; Bowen v. John, 201 Ill. 292, 296; Smith v. Kenny, 89 Ill. App. 293.

* 108 Ill. 307.

5 149 Mass. 19, 6 Gray, Cas. on Prop., 141.

7 Burton v. Gagnon, 180 Ill. 345.

9 216 Ill. 87.

Johnson v. Askey, 190 Ill. 58 8 170 III. 65.

10 § 205 a.

ence

collection of the list of cases is of itself a difficult and tedious task, requiring at least a search of the index-digest of each volume of reports under many different topics. The reading of six hundred cases is also a considerable task. The reading of many and the continued consideration of many to determine just what they decide or how they are to be supported, or on what ground they are to be condemned or doubted-often requiring much further investigation at large — is a great time consumer. Elucidating entirely new topics often proves difficult. In my opinion and upon this point I am sorry to say that I can offer only an opinion supported by the facts which I have detailed and the reader's experithis work is not possible for a man who goes into a busy office on a salary, with the prospect of a managing clerkship in a few years. It is not simply a difficult thing to do. He can't do it. If he is fortunate enough to be able to command his own time and devote one-half of it to this work, I think he might check up the Illinois cases on the subjects of conditional and future interests and illegal conditions and restraints in two years. It has actually taken one of Mr. Gray's pupils three years to do the work and to incorporate it in a book of four hundred pages of text. This required him to devote at least one-half of his whole time to the work, although he had the advantage of teaching a class upon those subjects at the same time. If this experience and experiment are worth anything, I have no hesitation in declaring that it is high time we ceased pretending that the mastery of Gray's Cases on the subjects of future interests is a quick asset in Illinois.

There is a strong probability that what is true respecting the gap between Gray's Cases on future interests and the Illinois law is equally true of the gap between Gray's Cases on the other subjects dealt with and the actual state of the Illinois law. My opinion on this point is based on a personal collection and arrangement of the Illinois cases relating to all the subjects of Gray's fourth volume of cases and of the subjects of the statute of limitations and prescription in the third volume. On the latter subject, for instance, there were no less than 375 cases in Illinois. Most of these arose in respect to three special seven-year statutes of limitations. They presented some extremely interesting and puzzling questions. The subject of dedication in the third volume one of my students looked up fully under my direction a few years ago. He found 164 Illinois cases. They illustrated every phase of the subject, statutory and otherwise. I doubt very much if a man

giving one-half of his whole time to the work could check up the Illinois cases covering the subjects of all of Gray's Cases in less than ten or twelve years. Practically, I don't think it ever will be done by any one in practice in the ordinary sense. What person who has any "practice," as that term is ordinarily used, can devote to such work one-half of his time, or even less, for the first ten or twelve years from the time of his graduation?

I believe that the subjection of the case-books in some of the courses other than those on Property to an experiment and test similar to that I have applied to Mr. Gray's case-books would establish the same defect in the Harvard Law School case-books as a whole as that which exists in Gray's Cases. I do not believe it possible that the gap between the case-books on Evidence, Torts, Agency, Contracts, Trusts, Corporations, Equity Jurisdiction, Bills and Notes, and Criminal Law, and the present state of the Illinois law on those subjects is any less than that between Gray's Cases and the Illinois law. In fact, whenever I have had occasion to prepare an argument on any point of law dealt with at any length in any of the Harvard Law School case-books, I have found the whole subject fully dealt with and often settled for good or ill in the Illinois cases. I recall the following four striking instances where this was true: where the question was one of the right of a person not a party to a contract to sue upon it; 1 where the problem was under what circumstances a master owes a duty to the servant to use due care; where the question was as to the duty of a landowner to trespassers, licensees, and invited persons, including also the doctrine of allurements to children; and where the question was as to the sufficiency of the defense of right to possession where the one entitled to possession of land enters thereon, using no more force than is necessary.2 If one-half of one's time for ten or twelve years is not too much in which to check up Gray's six volumes of Cases on Property, one might easily assign as much time again to the same treatment of the Illinois cases dealing with the subject-matter of the other case-books studied in law schools using the Harvard Law School case-books.

Finally, I believe that what is true here in Illinois is equally true in such states as New York, Pennsylvania, Massachusetts, Missouri, and Ohio, and very likely also in Wisconsin, California, Alabama, Georgia, Iowa, and Connecticut. In short, in the older, larger, and

1 Liability of Water Companies for Fire Losses, 3 Mich. L. Rev. 508–511. 2 Kales, Future Interests in Illinois, §§ 46–59.