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fix rules for its transfer, descent, and devolution. In the case of personalty each state allows the property within its jurisdiction to pass by the law of the state of the decedent's domicile: two states, therefore, each grant a privilege, and each, it seems, if it chose, could exact a tax. But in the case of realty, title passes by the lex rei site, and that state alone controls the privilege of succession.5 Where, however, the testator has directed the sale of his foreign real estate, it has been argued that an equitable conversion is worked, and that therefore the state of his domicile may impose a tax on the proceeds as personalty. A recent case before the Supreme Court of Pennsylvania upholds this position, consistently with previous decisions in that jurisdiction. In re Vanuxem's Estate, 61 Atl. Rep. 876.

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It would seem that the question as to whether a conversion has taken place must be determined by the law of the state where the land is situated, since that state alone has dominion over the property. But if it is determined that there is a conversion, succession will occur by the law of the decedent's domicile, as in the case of other personalty. The latter state may then exact a bounty for the privilege granted by it. An analogous question arises in the case of the interest of a deceased partner in foreign real estate belonging to the partnership, under the English rule that, in the absence of any agreement, partnership realty is ipso facto in the view of equity converted into personalty. In such event, the tax has been held valid, and may be supported on the above reasoning. But if the conversion is not effected by the will itself, but is to be effected only at some future time, it seems that succession will take place by the lex rei sita, and therefore the state of testator's domicile having granted no privilege can exact no tax. Where, for example, a testator devised foreign real estate to his wife for life, and upon her death directed its sale and the investment of the proceeds, the tax is not imposable by the state of the testator's domicile." The fact that the proceeds of the sale are subsequently brought within the taxing state gives it no additional power, for the succession takes place at the moment of death, and the character of the property at that time is controlling.1

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CHARITABLE BEQUESTS TO UNINCORPORATED SOCIETIES. erty is left to an existing, but unincorporated society, whose purposes are not charitable or religious, the beneficiary is commonly held incapable of taking, irrespective of the rule against perpetuities, by reason of its own inherent incapacity to hold legal title; and the bequest or devise fails.1 But when property is left to a charitable or (where statutes of mortmain do not prevent it) to a religious society, expressly in trust for some religious or charitable purpose, the law is unsettled. By far the greater part of the cases hold such bequests or devises good, relying generally upon the statute of 43 Elizabeth or some of its modern counterparts 2 which are designed

3 McCormick v. Sullivant, 10 Wheat. (U. S.) 192.

4 See Matter of Estate of Swift, 137 N. Y. 77, 86.

5 Matter of Estate of Swift, supra.

6 See Re Stokes, 62 L. T. 176. But see Estate of Swift, supra, contra.

7 St. 53 & 54 Vict. c. 39, §§ 20, 22.

8 Forbes v. Steven, L. R. 10 Eq. 178; Re Stokes, supra. But see Custance v. Bradshaw, 4 Hare 315.

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to prevent charitable testamentary trusts from failing, either through indefiniteness of the beneficiaries or of the trustees. Some courts hold the trusts valid without any statute, relying, perhaps, on the non-statutory power over charities which was derived by the courts of equity from the king as parens patriæ; though no less an authority than Marshall was of the opinion that such trusts are invalid in the absence of statute, and denied the adequacy of the royal prerogative to mend so grave a defect as the non-incorporation of the designated trustee."

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Where property is left, as before, to unincorporated charitable or religious societies, but by a devise or bequest absolute in form, and not expressly providing that it be held in trust, we find the courts using different reasoning, and dividing along different lines. Some say flatly that such gifts are void for lack of any one capable of taking title. Others declare that the society may take, and jump the difficulty that, in legal contemplation, the society does not exist, apart from its individual members. Even these courts, however, as a matter of practice, can only decree that the property be turned over to the treasurer, and rely on him for the rest. Some courts draw a distinction between the power to take money for general purposes and the power to take land, on the ground that there is no practical objection to the former, whereas perpetual succession is requisite for the latter. 10 Still other courts, though admitting that the unincorporated society cannot hold title, give it to the heirs of the testator in trust for the society.11 Most of the courts in this class of cases lay no stress on the charitable nature of the organizations, and argue as though they were concerned with unincorporated clubs or labor unions. It would seem in reason that an absolute devise should be dealt with exactly as if an express trust had been declared, for any bequest to a religious or charitable association is really a bequest in trust for the indefinite class which the association purports to benefit. Certainly the testator can rarely intend the members of the society to be either legal tenants in common for their own private purposes, or cobeneficiaries. Some cases have proceeded on this principle, and although the devise was absolute in form have recognized the applicability of the statutes concerning charitable trusts.12 The latest case in point, however, has adhered to the distinction. Fralick v. Lyford, 107 N. Y. App. Div. 543.

CONSTITUTIONALITY OF DELEGATION OF LEGISLATIVE POWER. The maxim of Constitutional Law that legislative power may not be delegated is as broad as its boundaries are vague. In applying it courts are reluctant to declare a statute unconstitutional unless clearly repugnant to the Constitution.1 The cases involving the question in which statutes are upheld

3 Board, etc., of Rush Co. v. Dinwiddie, 139 Ind. 128.

4 M'Cord v. Ochiltree, 8 Blackf. (Ind.) 15.

5 Charles v. Hunnicutt, 5 Call (Va.) 311. Cf. M'Cord v. Ochiltree, supra.

6 Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. (Ü. S.) 1.

7 Owens v. Missionary, etc., Society, 14 N. Y. 380. Cf. State, etc., Church v.

Warren, 28 Ind. 338.

8 Ex'rs of Burr v. Smith, 7 Vt. 241.

9 Parker v. Cowell, 16 N. H. 149.

10 Estate of Ticknor, 13 Mich. 44. Cf. Hadden v. Dandy, 51 N. J. Eq. 154.

11 American, etc., Society v. Wetmore, 17 Conn. 181.

12 West v. Knight, part 1, Ch. Cas. 134.

1 Re Janvrin, 174 Mass. 514.

divide into three main classes, shading into each other. Under the first it is held that the operation of a law, deemed by the legislators expedient only on the fulfilment of certain conditions, may be made contingent upon such fulfilment by others than the legislators themselves, and the granting of the right to satisfy such conditions is not a delegation of legislative power. Thus, terms of court may be transferred from one town to another on condition that the citizens of the latter provide accommodations.2 On the other hand, the question of suffrage for women can probably not depend on the vote of the people at large, for then they would be deciding on the expediency of the law, irrespective of the legislators' judgment.

The second class includes the cases involving the distinction between administrative and legislative powers. The powers conferred vary so greatly, according as the scope of the statute is large or narrow, that courts find it difficult to draw the line. The cases concern largely the powers of boards and commissions, to which it is desirable to allow breadth of discretion because of their superior fitness to meet conditions in their special field. A usual rule is that the power conferred is proper if it is to determine facts on which the action of the law depends. Thus, there is little doubt of the power of a school board to select uniform text-books; it is going further to allow a stock commission to prohibit the sale of milk from any dairy it determines to be unsanitary; and still further to entrust a board of health with power to decree compulsory vaccination. Courts have doubtless gone great lengths in these cases in the laudable endeavor to secure to boards and commissions powers which, under modern necessities for specialization, can be efficiently exercised only by means of such agencies.

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The third class of cases forms a real exception to the maxim; involving, namely, the principle (recognized from early times) that the delegation of powers of local self-regulation is valid. Here too the limits have been stretched, and legislative enactments dependent on acceptance by the voters in each locality are generally upheld when relating to matters of local concern. At present there is litigation in the lower Massachusetts courts regarding delegation to town selectmen, not ordinarily considered a legislative body, of power to pass speed ordinances. A recent Massachusetts decision well illustrates the widening tendency. State fish commissioners were sustained in their action under a statute allowing them to prohibit any discharge of sawdust into a stream if they determined that it occasioned injury to edible fish. Commonwealth v. Sisson, 33 Banker & Tradesman 2216 (Mass. Sup. Ct., Oct. 17, 1905). The situation is not essentially different from many in which the action was upheld as merely administrative, but the court unequivocally declares that the power conferred is legislative, but nevertheless allowable, and a parallel is drawn to cases upholding similar powers granted to state boards of health. these it would seem that state boards were perhaps originally sustained in the exercise of their powers because such powers were allowed local boards, and the latter were considered to come within the local self-government

2 Walton v. Greenwood, 60 Me. 356.

3 Re Municipal Suffrage to Women, 160 Mass. 586.
State v. Thompson, 160 Mo. 333.
Leeper v. State, 103 Tenn. 500.

6 State v. Broadbelt, 89 Md. 565.

7 Blue v. Beach, 155 Ind. 121.

8 State ex rel. White v. Barker, 116 Ia. 96.

• Wooman v. County of Hudson, 52 N. J. Law 398.

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exception. 10 Possibly the present decision goes further than any other in its language, but whether by extension of administrative powers or by analogy with the recognized exception, the trend of the courts is certainly towards the achievement in similar cases of the result reached in the principal case.

RIGHTS OF A LIFE TENANT IN A PRIVATE CEMETERY. - Interests in burial lots may be granted either by a document under seal, or by any other agreement. If there is a conveyance under seal, the vendee obtains either a fee simple 1 or an easement, according to the tenor of the instrument and the construction of it warranted by circumstances. If the sale of a burial lot is by mere oral or written agreement, no freehold estate or easement can have been passed. Although, in such cases, the courts commonly say that a mere license has been acquired, yet they generally allow to these licenses most of the qualities of easements. And indeed the true nature of the vendee's interest seems to be that of an equitable right to an easement. A mere license expires with the death of the licensor; but it is hard to believe that any court of equity would allow graves or gravestones to be interfered with by successors of vendors of burial lots, at least if they took with notice of the graves. The requisites for an equitable enforcement of agreements for easements seem all present in agreements for the sale of burial lots, even where there is no writing, a complete and sufficient contract the terms of which are mostly established by custom, valuable consideration, and acts of part performance unequivocably referable to the supposed agreement." The practical result, that the graves are kept permanently undisturbed, is plainly in harmony with common sense and justice.

Where one is only a life tenant of land, however, it is difficult to see how his powers can extend to selling burial lots in fee simple or as easements enforceable either at law or in equity, since a life tenant can neither convey away his land piecemeal nor incumber it with easements. When, however, the land has already been devoted to the business of conducting a private cemetery, considerations of justice and policy would allow the life tenant to continue the business, and consequently to sell burial lots; for otherwise he is likely to receive little beneficial use of the land. The legal basis for such a rule is hard to find. The Supreme Court of the District of Columbia recently attained this result, on the analogy of a life tenant's right to continue the operation of mines and quarries though the corpus of the estate is thereby diminished, or exhausted. Hill v. Moore, 33 Wash. L. Rep. 549. The distinction, however, is clear between the mere severance of part of the physical substance of the inheritance by a life tenant with the right to work

10 See Brodbine v. Revere, 182 Mass. 598.

11 Cf. Nelson v. State Board of Health, 186 Mass. 330.

1 Commonwealth v. Mt. Moriah Cemetery Ass'n, 10 Phil. (Pa.) 385.

2 Buffalo City Cemetery v. Buffalo, 46 N. Y. 503.

3 See e. g. in the case of church cemeteries, Richards v. Northwest, etc., Church, 32 Barb. (N. Y.) 42; but contra, In re Brick, etc., Church, 3 Edw. Ch. (N. Y.) 155.

4 Dwenger v. Geary, 113 Ind. 106; Partridge v. First, etc., Church, 39 Md. 631; McGuire v. Trustees, etc., of Cathedral, 54 Hun (N. Y.) 207.

5 See Perley, Mortuary Law 178.

6 Moreland v. Richardson, 22 Beav. 596; Conger v. Treadway, 50 Hun (N. Y.) 451

7 See Wiseman v. Lucksinger, 84 N. Y. 31, 38. See also Gale, Easements, 7th ed.,

58, 59.

open mines, and an actual incumbrance of the inheritance with easements, or the complete extinguishment, by a conveyance in fee, of the entire estate in the land; yet, since the only alternative appears to be a decision, the practical effect of which is to deprive the life tenant of the beneficial use of the land, perhaps this loose analogy furnishes the best, though an unsatisfactory, avenue of escape from a perplexing problem.

CONSTITUTIONALITY OF A STATE TAX ON MOVABLES SITUATED OUTSIDE THE STATE. The power of a state to tax persons and things within its confines is limited by the clause of the Constitution, that no person shall be deprived of property without due process of law. In considering what forms of taxation do not violate this clause, two kinds of taxes must be recognized. Imports, inheritance taxes, licenses, etc. are examples of the first class. They are charges imposed by the state upon persons for privileges granted to them. The nature of the second class is entirely different. In levying taxes of this sort, the state is apportioning the expenses of government among all its citizens. Two methods of making this apportionment which satisfy the requirement of due process of law may be suggested. Each person can be called upon to bear a proportion of the expenses of government commensurate to the proportion of benefit he has received from the state. The second method would be to apportion the taxes among the citizens of the state in proportion to their relative abilities to pay them. A tax upon a person the amount of which is determined by the value of the property he owns within the state is an example of the first method of apportionment, because the best measure of the amount of protection derived from the state is the amount of property owned. A tax on incomes on the other hand exemplifies the tax upon a person in proportion to his ability to pay. Of course these are but rough approximations, but so long as either principle underlies the tax it is valid.

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Does a tax upon a person based upon the amount of personal property owned by him outside of the state meet either requirement? Such a tax has been supported by some decisions, by the text-writers, and by long usage; but it has at length been declared unconstitutional by the Supreme Court of the United States. Union, etc., Company v. Kentucky, U. S. Sup. Ct., Nov. 13, 1905 (two judges dissenting). This result is the logical outcome of two previous decisions, and of the proposition (which the court assumes as undeniably settled) that realty without the state cannot be taxed at the domicile of the owner." Certainly such a tax is not a charge upon a person based upon the amount of protection he derives from the state, for the maxim mobilia sequuntur personam has been entirely discredited." It has been said that, being based upon the wealth of a citizen, it is a tax upon him graduated according to his ability to pay. This is not, however, a tax upon a person based upon his ability, as compared with the ability of other

1 Matter of Swift, 137 N. Y. 77, 88; Knowlton v. Moore, 178 U. S. 41, 47.

2 See Beale, Foreign Corporations, § 483.

3 Wheaton v. Mickel, etc., May, 63 N. J. L. 525.

4 See Wharton, Conflict of Laws, 3d ed., § 80 a.

Louisville, etc., Co. v. Kentucky, 188 U. S. 385; Delaware, etc., Co. v. Pennsyl

vania, 198 U. S. 341.

6 Louisville, etc., Co. v. Kentucky, supra, at 398.

7 See Hoyt v. Commissioners of Taxes, 23 N. Y. 224.

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