different from those involving a tax imposed on transfers to take effect in possession after the grantor's death made by a deed executed subsequent to the statute. In re Keeney's Estate, 194 N. Y. 281, 87 N. E. 428; In re Brandeth, 169 N. Y. 437, 62 N. E. 563. In these cases no interest at all becomes vested before the enactment of the statute.

TORTS-NEGLIGENCE - LIABILITY OF A MANUFACTURER. - In a suit against a manufacturer and distributor of chewing tobacco by a consumer who contracted ptomaine poisoning therefrom, owing to a foreign substance concealed in the plug of tobacco, held, that the manufacturer was liable. Pillars v. R. J. Reynolds Tobacco Co., 78 So. 365 (Miss.).

The principle that a manufacturer is not liable for negligence to a subvendee is based upon an erroneous interpretation of Winterbottom v. Wright, 10 M. & W. 109. That case was decided upon a question of pleading and stands for no such proposition. 29 HARV. L. REV. 867. So numerous are the exceptions to the general rule in favor of foods, drugs and articles imminently dangerous to human life, and so varied are the opinions as to what is imminently dangerous, that the exceptions might be said to be the rule itself. Tomlinson v. Armour & Co. 75 N. J. L. 748, 65 Atl. 883; Bishop v. Weber, 139 Mass. 411, I N. E. 154; Johnson v. Cadillac Motor Co., 137 C. C. A. 279, 221 Fed. 801; Loose v. Clute, 51 N. Y. 494, 10 Am. Rep. 638; Shubert v. R. J. Clark & Co., 49 Minn. 331, 51 N. W. 1103. That the duty of due care should be imposed only on manufacturers of foods, drugs and articles imminently dangerous to human life is illogical. If the duty exists, it ought to apply equally to all manufacturers. See CLERK & LINDSELL, TORTS, 6 ed., 513. Such was the view taken in McPherson v. The Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050. The principal case in adopting the same view as to the manufacturer and in dismissing the case as to the distributor is well decided. There was no negligence on the distributor's part in failing to discover a foreign substance concealed in the plug or sealed package of tobacco. Julian v. Launbenberger, 16 Misc. (N. Y.) 646, 38 N. Y. Supp. 1052; Bigelow v. Maine Cent. R. Co., 110 Me. 105, 85 Atl. 396. TO

TRUSTS CREATION AND VALIDITY - PRECATORY WORDS - GIFT EXECUTORS FOR SECRET PURPOSES. A testator gave the residue of his estate to his executors and trustees, "in whose honesty and discretion I have reposed special trust and confidence, for certain purposes which I have made known to them, and I hereby authorize and empower my said executors to make such distribution and division of my estate as I have indicated to them, and as they shall deem proper for the fulfillment of my wishes so well known to them, relying entirely upon their judgment in the premises." Held, that a trust was created, and that the property resulted to the heirs at law and next of kin of the testator. Blunt v. Taylor, 119 N. E. 954 (Mass.).

Where there is a gift by will to a person, followed by precatory words in favor of other persons, modern courts tend against imposing a trust. In re Diggles, 39 Ch. D. 253; Lemp v. Lemp, 264 Mo. 533, 175 S. W. 618. See UNDERHILL, TRUSTS AND TRUSTEES, 7 ed., 16. But in the principal case the gift is to the executors and trustees, not beneficially, but "for certain purposes which I have made known to them." The phrase, "relying upon their judgment in the premises" defines the manner of executing the trust and leaves the executors no option to refuse performance. The existence of a trust, therefore, appears on the face of the will, and, by the weight of authority, extrinsic evidence is admissible to prove the terms thereof. In re Huxtable, [1902] 2 Ch. 793, 71 L. J. Ch. 876, 87 L. T. 415; Morrison v. M'Ferran, [1901] 1 I. R. 360, 35 I. L. T. R. 81. See COSTIGAN, CONSTRUCTIVE TRUSTS, 28 HARV. L. REV. 383, n. Even where the existence of a trust does not appear on the face of the will such extrinsic evidence is admissible. Russell v. Jackson, 10

I

Hare, 204; Caldwell v. Caldwell, 7 Bush (Ky.) 515. See I JARMAN, WILLS, 6 ed., 910. The authorities thus violate the purpose of the Wills Act and Statute of Frauds by opening the door to perjured testimony. In Massachusetts, however, if the existence of a trust appears on the face of the will the terms of the trust must appear thereon. Olliffe v. Wells, 130 Mass. 221; Wilcox v. Attorney-General, 207 Mass. 198, 93 N. E. 599. This condition was not complied with in the principal case, and so the property resulted to the heirs at law and next of kin.

BOOK REVIEWS

AMERICAN CITY PROGRESS AND THE LAW. By Howard Lee McBain, Dorman B. Eaton Professor of Municipal Science and Administration in Columbia University. The Hewitt Lectures for 1917. New York: Columbia University Press. 1918. pp. viii, 269.

An interesting and suggestive book for a lawyer, because it is the result of long thought and investigation of problems of municipal government. The city is doing so many things now-a-days that it is pretty hard to convince oneself that it should not do everything worth doing. But then, the same thing might be said about the state and the nation; the college and the publicschool system; the rich man and the endowed charity. Our appreciation of all that may be done to make life fuller, and happier, and better, has come upon us so suddenly that we have not yet had time to study our means of action, to co-ordinate, to discriminate, to set the bounds of action for the various agencies to which we look for improvement.

As the need is more insistent in our cities, it is natural to look to our city governments for first aid. Is the city ugly? Let the city council, with its high appreciation of æsthetics, beautify it. Is the housing inadequate? Let the public treasury build model tenements. Do the grocers overcharge? Let the Committee on Water Supply take over their business. Do we need a big theatre, that won't pay, in the business section? Let the city exercise its power of eminent domain, take a site, and subsidize a picture show; the public needs amusement. Is the Board of Trade slow about getting in factories and big business? Let the Mayor advertise factory sites, bargain for inducements, and open an employment office.

This is human nature. We all like to hand these problems over to the city; and our cities solve them surprisingly well, considering. But as a result difficult legal questions of the power to deal with them set a new generation to revolving problems of strict and of liberal construction, and again the solution becomes a question of temperament with courts and lawyers. The progressives are again liberal and the conservatives, narrow constructionists. And again the progressives are bound to succeed.

Professor McBain is a progressive. His creed appears to be that the burden of proof is upon those who deny a city's legal power to do a useful thing. In these lectures he discusses in successive chapters the new occasions for municipal activity: Home Rule, Smoke and Billboards, City Planning, Municipal Ownership, Regulation of Prices, Public Recreation, Promotion of Commerce and Industry. His knowledge of the problem is adequate, his collection of authorities is full, his arguments are interesting; a student of municipal law finds occasion for gratitude in every page. Though narrow in scope and simple in treatment, the book is a contribution to legal as well as to governmental science.

If Professor McBain's point of view had been that of a lawyer, he might have

made his case a little stronger. The expansion of municipal powers is perhaps as likely to come through the doctrine of common-law powers inherent in corporate personality as through a fictitiously broad interpretation of a written instrument. The currency which Dillon gave to Shaw's early dictum, that a municipal corporation can exercise only express powers, and those "necessarily or fairly implied in or incident to" express powers is responsible for much bad reasoning and some bad law; only by recognizing that a city, in its capacity as legal person, can do what any legal person may do except when restrained by law, can we get a clue to the cases, and lay down a principle consistent with modern requirements. J. H. BEALE.

THE REPORTS OF THE HAGUE CONFERENCES OF 1899 AND 1907, edited with an introduction by James Brown Scott. Carnegie Endowment for International Peace, Division of International Law: Oxford, at the Clarendon Press, London. 1917.

The various translations and reprints which the Carnegie Endowment for International Peace has been publishing during the last few years have proved very convenient to students of international law. None will be more so than the present work. Much of the most valuable work of the First and Second Hague Peace Conferences did not appear in the finished conventions. The proposals submitted by different states and the discussion upon them, have heretofore been concealed in the ponderous, unindexed, French tomes, known for the 1899 Conference as the Proces Verbaux, and for the 1907 Conference as Actes et Documents. The present work contains in a single volume translations of the more valuable of this material, arranged and indexed both by persons and by topics, so as to be readily available. Footnote references give the position of the material in the official publications mentioned above.

The editor states in the introduction that the official English translations of the texts have not been followed where a more literal translation seemed possible, and where an inconsistency in the translation of an identical French phraseology in the conventions of the First and Second Conferences existed.

The volume includes the opening and closing addresses, the final act and M. Renault's report upon it, for both conferences. Each convention is given in its final form in heavy type, with tables of signatures and ratifications, followed by the report of the commission which presented the convention to the full conferences, and which according to the European custom is regarded as an official commentary. The draft proposals on the topic, submitted by the various national delegates, are appended, and more important statements contained in the discussions either in commission or in plenary session have been selected for insertion.

In the discussion of many topics, especially those connected with naval warfare, the diversity of opinion is striking. The suggestions relating to automatic mines are especially interesting in this connection, and also as relating to a subject which will require further discussion in future conferences. It is interesting to note that Germany proposed in 1907 that a belligerent power be responsible for all acts of its armed forces in violation of the laws and customs of war on land (p. 528), a provision inserted in the convention on this topic (art. 3), and that the same country thought consideration of the subject of obligatory arbitration "premature" (p. 388). It is also interesting to read the declaration of Great Britain in 1907 favoring the abandonment of the principle of contraband in maritime warfare (p. 622).

The merit of such a work as this is to be judged by its accuracy of translation, its adequacy and compactness in selection and exclusion of material,

and its convenience of arrangement and indexing. It is believed that the student can rapidly find here a reliable translation of the important work of the Hague Conferences on any of the various topics of international law there considered.

THE CENTENNIAL HISTORY OF THE HARVARD LAW SCHOOL, 1817-1917, written and compiled by the Faculty, published by the Harvard Law School Association. 1918. 420 pp. 55 illustrations. $1.50 post-paid. Chapter I. History of the School; II. Instruction; III. The Library; IV. Portraits and Prints; V. The Students; VI. The Harvard Law School Association; VII. The Future. The Appendix includes lives of teachers at the School, with bibliographies of their writings, of the School, and of the case system and other topics in American legal education; and a list of distinguished alumni of the School.

The book can be obtained from the Plimpton Press, Norwood, Mass., and from Amee Bros. and the Harvard Coöperative Society in Cambridge. Arrangements have been made to send a copy without charge to each member of the Harvard Law School Association.

HARVARD

LAW REVIEW

VOL. XXXII

DECEMBER, 1918

No. 2

LOVA

JENS IVERSON WESTENGARD

OVABLE and trustworthy, clean-thinking and clean-living, a beautiful soul in a beautiful body; those are one's first thoughts about Jens Westengard. Then one remembers that here was a man equally at home and equally honored in a New England farmhouse, a Harvard faculty-room, and a Siamese palace; a man who held noble rank in an Oriental kingdom, who was received on friendly terms by an English queen, who was to have occupied a distinguished position in the most august assembly ever held on earth; yet as modest and unassuming, as simple-hearted and unspoiled as when he earned his living as a stenographer in a Chicago office. The rapidly changing circumstances of his outward life, the sweet unclouded serenity of his soul, give to his life a touch of romance unusual in this prosaic age of science.

Jens Iverson Westengard was born in Chicago, September 15, 1871. His father was a Dane of an old family, who gave his son a good common-school education, but was unable to send him through college. The son made himself an expert stenographer; but it was his ambition to graduate from the Harvard Law School and become a lawyer. To that end he began to lay up money, and to fit himself to pass the admission examinations required from all who were not college graduates. He expected to be ready in 1896; but the faculty having decreed that no one without a college education should enter the school as a regular student after 1895, he cut his preparations short by a year. He came to Cambridge in the fall of 1895, with a little money, an adequate acquaintance with Blackstone's Com