4. Let the clerk of each court see to it that cases are promptly put at issue or dismissed according to the strict rules of practice; and so to arrange the calendar that there will be fewer continuances and more "live" cases for the judge to pass upon or to try. 5. General instructions should be simple and clear statements of the law applicable to the case, without attempting to single out certain facts or a part of the evidence. Hypothetical instructions should be clear and should contain a full statement of all of the ultimate proved facts. 6. It should not be necessary, in civil cases, to file in the reviewing court, either the original or a transcript of the record unless the parties or their attorneys consider such a transcript essential to a proper disposition of the case and the trial judge so certifies. 7. Reserve the liberty of the litigant, but make him pay for unnecessary contention and for an abuse of his freedom. 8. Litigation at best is a great hardship and a misfortune; reduce that misfortune to a minimum through an efficient administration of the court. ILLINOIS LAW REVIEW Published monthly (except in July, August, and September) by the Nathan William MacChesney, President and Treasurer Frederic B. Crossley, Secretary and Business Manager $3.00 PER YEAR 40 CENTS PER NUMBER BOARD GEORGE P. Costigan, Jr. CECIL BARNES JOHN L. TURNBULL EDITOR-IN-CHIEF ALBERT KOCOUREK OF MANAGING EDITORS ALBERT KOCOUREK ASSOCIATE EDITORS WILLIAM B. HALE Of the Students ROBERT W. MILLAR ELMER M. LIESSMANN ARTHUR R. HALL ROBERT N. T. GOLDING In order to insure freedom of utterance in the columns of this REVIEW, the editorial board as a whole assumes no responsibility for sentiments expressed in its pages. All matters, including editorials and comments on cases, are signed by the initials or the full names of the writers. COMMENT ON RECENT CASES WILLS CONSTRUCTION-MEANING OF AN ULTIMATE GIFT OF THE TESTATOR'S "ESTATE."-In Downing v. Grigsby, 251 Ill. 568, the will involved, devised to the wife for life and "at her death to revert to my estate," with a residuary devise of one-half to the wife, and one-half to others. The wife filed a bill for partition subject to the life estate, claiming one-half under the residuary clause. A decree for the wife was affirmed. The primary meaning of "revert to my estate" was held to be "fall into the residue," and no good reason appeared why that primary meaning should not obtain. It was apparently urged in favor of the secondary meaning that the primary meaning resulted in the absurdity or incongruity that the widow, who was given a life estate in the whole, would also take half in remainder. To this the court significantly replied: (p. 574): "but there is nothing inherently absurd in a testator's giving to one of several to whom a fee is devised the enjoyment of the whole property during his lifetime, or to a life tenant of the whole a share of the fee in remainder." This is entirely consistent with the line of cases where in a gift to "heirs at law" of the testator after a life estate, the fact that the life tenant is one of the heirs at law and so entitled to share in the remainder if heirs at law be taken in its primary meaning, is not sufficient to warrant giving to heirs at law a secondary meaning which includes those who would have been the testator's heirs at law if he had died at the time of the death of the life tenant: Kales, "F. I." Sec. 233. A. M. K. WILLS-ATTESTATION.-In Smith v. Goodell, 258 Ill. 145, we have another example of a will failing entirely because of the incompetency of a witness. One witness was the partner of the person named as executor and the articles of partnership divided all fees earned as executor by either partner. As the executor was incompetent by reason of his interest: (Jones v. Grieser, 238 Ill. 183; Fearn v. Postlethwaite, 240 Ill. 626), the partner of the executor, who was entitled to part of the executor's fees, was incompetent. [See 11 ILLINOIS LAW REVIEW 207]. It was also held that the situation was not aided by section 8 of the Wills Act, because the witness' interest was indirect, while the statute only made the witness directly interested under the terms of the will competent, by eliminating his interest. Such has been the regular holding of our Supreme Court in the cases where a spouse of the legatee or executor is a witness. In such cases the will fails entirely because section 8 does not apply: (Fearn v. Postlethwaite, 240 Ill. 626; Sloan v. Sloan, 184 Ill. 579; Fisher v. Spence, 150 Ill. 253). This naturally suggests a change in the law of this state along the lines of section 15 of the Wills Act of I Vict. Such an act to take the place of the Wills Act might read as follows: If any person shall attest the execution of any will to whom, or to whose wife or husband or partner, any beneficial devise, legacy, estate, interest, gift or appointment, of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband or partner of such person, or any person claiming under such person or wife or husband or partner, be utterly null and void and such person so attesting shall be admitted as a witness to prove the execution of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will. A. M. K. PARTITION-JOINT TENANCIES.-In Barr v. Barr, 273 Ill. 621, the state Supreme Court holds that section 5 of the conveyance act, providing that joint tenancies may be created in the mode there pointed out, does not repeal section 1 of the partition act, providing that land "held in joint tenancy, tenancy in common or coparce nary," shall be subject to partition by bill in chancery or petition. The court says that section 5 simply gives the privilege of creating joint tenancies in a certain way, and the partition statute gives the joint tenants the privilege of partitioning after the joint tenancy is created. The court points out that joint tenancies were, at common law, subject to destruction (i. e. conversion into tenancies in common) by "severance." Hence the provision for the destruction of joint tenancies by partition could not be deemed to be so in conflict with the act for the creation of joint tenancies that the latter act repealed the former. The result seems obviously sound. L. M. G. LIFE INSURANCE-WHEN COMPANY IS NOT BOUND BY INCORRECT APPLICATION PREPARED BY ITS AGENT.-An interesting and important phase of estoppel and waiver in life insurance relates to the effect of incorrect statements in the application for the policy due to the error or fraud of the agent or medical examiner of the company in preparing the application. A general statement of the rule is that the company is estopped from claiming a breach of warranty or a misrepresentation in such cases where the statements as written by the agent do not correspond with the information given by the applicant, or where the application is filled out by the agent from his own knowledge, no information being sought from the applicant; although this rule has been rejected in some jurisdictions, notably in Massachusetts and the law courts of New Jersey, where it is claimed that such doctrine is a violation of the parol evidence rule. (See cases collected in Cooley, "Briefs on Insurance," Vol. III, pages 2555-2566). One of the leading authorities in support of the general rule above stated is the United States Supreme Court in the case of Union Mutual Insurance Company v. Wilkinson (1871), 13 Wall. 222, in which the application was shown to have been prepared by the agent from erroneous information furnished by a third party, there being no imputation of bad faith against either the agent or the applicant. The court held, in an opinion which discussed at some length the practical conduct of the life insurance business, that the company was estopped from relying upon the breach of warranty on the ground that the acts of the agent in preparing the application were within the scope of his apparent authority and binding upon the company, and, further, that no violation of the parol evidence rule was involved, but rather an estoppel of the company from using the incorrect statements as those of the appli cant. The rule in the Wilkinson case has been followed in other cases in the United States Supreme Court, and by the majority of the state courts, including Illinois (Phenix Ins. Co. v. Stocks (1893), 149 Ill. 319); but some of the later cases have materially narrowed its scope and effect by emphasizing the necessity of the element of good faith on the part of both the agent and the applicant, although not always agreeing as to what amounts to good faith in such circumstances. In New York Life Ins. Co. v. Fletcher (1885), 117 U. S. 519, it was held that where the application contained a specific limitation of the authority of the agent, and where the assured was able, and had full opportunity, to read the application, his failure to do so was such inexcusable negligence as to prevent his claiming the benefit of the rule in the Wilkinson case; the court approving the case of Ryan v. World Mutual Life Ins. Co. (1874), 41 Conn. 168, in which it was said that where the agent is guilty of fraud in preparing the application, it cannot be claimed that he is acting within the scope of his authority, and that the beneficiary could not profit by the agent's fraud, whether the applicant was an accomplice, or a mere instrument through negligence in failing to read the application. This question was again before the United States Supreme Court in the recent case of Mutual Life Insurance Company v. Hilton-Green et al. (June 12, 1916), 36 Sup. Ct. Rep. 676, in which it appeared that the application containing certain untrue statements relating to material facts (which were declared by the policy to be representations, and not warranties, in the absence of fraud), was prepared by the agent and medical examiners regardless of the facts, and contained a certificate of examination by the medical examiners, although no such examination was in fact made, the beneficiary claiming, however, that the agent and medical examiners knew the facts, apparently from a previous application to another company. The court, with Pitney, J., dissenting, held that the trial court should have directed a verdict for the company; that the rule by which a principal is bound by the acts and knowledge of his agent does not apply in favor of a third party, where the latter is acquainted with facts plainly indicating that such acts and knowledge will not be communicated to the principal; and that the assured, by failing to repudiate the false representations, adopted and approved them. The latter statement would seem to leave the rule in the Wilkinson case with very doubtful present value, and, in any event, such rule appears to have no application in the United States Supreme Court where the agent is guilty of fraud under circumstances like those in the principal case. The Illinois cases follow the general rule that no recovery is possible where the applicant is guilty of collusion with the agent in preparing the application (Rockford Ins. Co. v. Nelson (1872), 65 Ill. 415), but do not seem to refuse to apply the general rule above mentioned merely because of the failure of the assured to read the application (Royal Neighbors v. Boman (1898), 177 Ill. 27; Johnson v. Royal Neighbors (1912), 253 Ill. 570). The refusal of the court in the principal case to give any controlling effect to the Florida statute providing that any person receiving or transmitting moneys for or to an insurance company shall be deemed the agent of such company appears to be in accordance with the better considered cases (John R. Davis Lumber Co. v. |