death, this part of the estate was to go to the recipient of the library, which should also have covenanted, upon acceptance of the library, to use the income from this fund for the purchase of books to be added to the "Benno Loewy Library." The will conflicted with section 17 of the New York Decedent Estate Law, which prohibits a man who dies leaving a wife surviving him from leaving by his will more than half of his property to a charitable institution. The record did not show the value of either the library or the estate, but it was conceded that the gift to the university exceeded half the value of the estate, and the case was decided on the assumption that the effect of the statute would be to cut down the trust fund, which would finally go to the university, from $135,000. to about $35,000.

The wife and next of kin contended that the testator's principal intention was to create a perpetual memorial to his name, to be added to perennially for all time by purchases of books made with the income, and that a failure of substantial part of the endowment for additions would so violate the testator's intention that the whole scheme would be nullified. The Court of Appeals, however, thought that, in the mind of the testator, the additions to the library were subsidiary in importance to the preservation in some institution of his library intact and bearing his name. Since this principal object, the prevention of the dispersal of the library, could still be achieved, it was held that the will was void only so far as it conflicted with the statute.

The facts of one or two other cases are interesting for comparison with this result. In Adams v. Perrys the will gave a house and lot to Lowville Academy to be used for a "female department," and attempted to create a trust, the income thereby to be provided being intended for the academy. The trust was void, but the court said, "How is it possible for the court judicially to say that sufficient means to carry on the female department may not be supplied from other sources? Unless the court can clearly see that the trusts to defray the expenses of the school having failed, it has thereby become impossible for the academy to establish a separate department for the education of females as designed by the testatrix, the devise must be held valid."4 In Gilman v. Hamiltons there was a trust to found a theological school. The fund was mostly in land, which continued for eight or ten years to be of little value and insufficient for the erection of buildings or the support of such an institution. An attempt was made to have the cy pres doctrine applied by having the fund used for the endowment of a chair of theology at an existing university. The court refused to apply the cy pres doctrine because the land might increase in value or contributions might be received from other sources. It was pointed out in the opinion that very few donations of this kind were alone sufficient to accomplish fully the designs and objects of the testator, and that if all donations were to be tested by the rule of sufficiency in themselves there would be but few that might not be diverted to other purposes under the cy pres

doctrine. Although the funds were inadequate for such a scale of operation as existed in older institutions, it did not follow that the purpose of the testator was wholly impracticable. This case, although not arising in the same way as Adams v. Perry, shows that courts are not disposed to declare a fund insufficient to carry out a charitable purpose, but prefer to have the charity benefited, as near as may be, in the way designated by the testator. Therefore, even if the provision for additions to the library had been of predominating importance, the partial failure of the fund for additions would not have justified holding void the whole plan for the disposition of the library.

Upon consideration of the general rule on the effect of the partial invalidity on a will and upon consideration of the authorities on reduction or insufficiency of charitable endowments, the result of Unger v. Loewy was undoubtedly correct.

William K. Laidlaw.

"See also Matter of MacDowell, 217 N. Y. 454 (1916).

Rational Basis of Legal Institutions. By Various Authors. With an Editorial Preface by John H. Wigmore, Professor of Law in Northwestern University, and an Introduction by Oliver Wendell Holmes, Justice of the Supreme Court of the United States. Modern Legal Philosophy Series. The Macmillan Co., New York City. 1923. pp. xxxii, 603.

The cynic sneered at Cicero's philosophy and ridiculed his optimism because he said Cicero settled nothing and thus taught his pupils only to be ignorant. The origins of early legal institutions are lost in antiquity. The study of the reasons of such origins settles nothing and leaves the student ignorant. We grow old "in dropping buckets into empty wells and drawing nothing out." Doctrines laid down in the books are taken for granted by the lawyers without much challenge of the reasons or pretended reasons for their existence. While there has been in form a great searching for reasons for rules of the law of persons and things, the practical jurist has often been content to say with Lord Esher (Mexborough v. Whitwood Urban District Council, (1897) 2 Q.B. III, 115,) that it does not signify what the reasons for them are, if they are well recognized rules which have existed from time immemorial.

Although it has been truly said that the picture of law triumphant and justice prostrate has its admirers, the reasons given for a judicial decision are the true safeguard of its justice. Legal philosophers who seek a reasonable rule and deny any authority to our fundamental legal institutions unless they can be rationally supported are not without influence. They question even the most ancient principle which rests for its foundation on the formula: "These things exist, therefore we need not think."

Whatever instances may be shown to the contrary, prevailing morality and strong public opinion have often succeeded in the courts over precedent and authority. Law perhaps always has been an endeavor to adjust the relations of people to social conditions as they existed when the law was declared by courts and legislatures. That the law should be, in truth, a present day affair and not the safe abiding place of obsolete theories, one would not seriously deny.

In 1883, Lord Chief Justice Coleridge, in charging the jury in Reg. v. Ramsay, 15 Cox's Crim. Cas. 231, 234, said: "Now, according to the old law, or the dicta of the judges in old times, these passages would undoubtedly be blasphemous libels, because they asperse the truth of Christianity." *** "To asperse the truth of Christianity [not in an indecent and offensive manner] cannot per se be sufficient

to sustain a criminal prosecution for blasphemy. And on the ground that in the sense understood by the judges in former times that Christianity is a part of 'the law of the land' to suppose so is in my judgment to forget that law grows. The principles of law remain, and it is to the great advantage of the common law that its principles do remain; but they have to be applied to the changing circumstances of the times. This may be called by some retrogression, but I should rather say it is progression-the progress of human opinion. *** It is no disparagement to their authority to say that observations which were made under one state of the law are no longer applicable under a different state of things."

When the judges begin to discuss the rationality of the rules which they are called on daily to apply, it is time for the lawyers to give heed to the speculations which philosophers and economists have for centuries indulged in.

The object of this book is to set forth the principal reasons on which our legal institutions rest. It follows the case book form by collecting in condensed space what the learned editors deem to be the best that has been said on the general subject.

It contains introductory chapters on liberty and individualism by Herbert Spencer and John Stuart Mill, essays on competition from different points of view by Lovejoy, Sharp and Park, discussions of contracts, property, socialism, succession, the family, crime and punishment by writers of such varied gifts as Ely, Roscoe Pound, H. G. Wells, Veblen, Tawney, Hobhouse, John Fiske and Henry Sidgwick. Both sober conservatism and startling radicalism are given a place, but the blush-compelling modernities of Havelock Ellis and Mrs. Parsons do not lend their tone to the book as a whole.

Mr. Justice Holmes, in his felicitous introduction, bids us remember that it takes but a few minutes to cut down a tree which has taken a century to grow. He also says: "One might venture on the paradox that by the time a proposition becomes generally articulate it ceases to be true-because things change about as fast as they are realized." Thus, the proposition that a servant, as the common law bluntly styled one who works for another called master,-assumes the risk of injury by his fellow servants because each is an observer of the conduct of others, can give notice of any misconduct, incapacity or neglect of duty and leave the service, if the common employer will not take such precautions and employ such agents as the safety of the whole party may require, was first made articulate in the United States by the great learning and practical common sense in his generation of Shaw, C. J., in Farwell v. B. & W. R.R. Corporation, 4 Met. 49, in 1842. In 1911, everyone had perceived that this reason was no reason when applied to conditions in dangerous employments where highly organized industries employed many servants of different grades and injuries were incident to the most careful operation of such trades. But in Ives v. South Buffalo Ry. Co., 201 N. Y. 271 (1911), it was held that, although the defense of negligence of a fellow servant and of assumption of risk could be abolished, a workman's compensation act was unconstitutional when it imposed liability

without fault, for the reason that no one can be compelled to indemnify another for loss unless it is based on contractual obligation or fault.

"The old order changeth, yielding place to new." The time had come for a change in the old rule and a new set of reasons was readily found for the new rule which now makes compensation for the injuries sustained by employees in dangerous callings a part of the overhead charges of the business without reference to the employer's freedom from fault or to the employee's own fault, unless such fault is wilful or the result of his intoxication.

The first step toward improvement in our legal institutions is to look the facts in the face, analyse the reasoning on which judicial decisions are based and relate such reasoning to the progress or change of enlightened human opinion. The present volume is a help if not a guide in the direction of the rationalization of legal processes.

It may not be amiss to express a debt of gratitude to Dean Wigmore and his co-workers for their labors in the way of presenting to the legal profession in accessible and attractive form the volumes of this series as well as the Continental Legal History Series and the Evolution of Law Series.

Cuthbert W. Pound.

Cases and Other Authorities on Equity. By Walter Wheeler Cook. West Publishing Company, St. Paul, Minn. 1923. Vol. I. pp. xvi, 805.

Law schools must not only attempt to develop the thinking power of students but must assist in the progress of legal thought. Professor Cook's Cases and Other Authorities on Equity will furnish valuable material for the pursuit of both purposes. We may expect from Professor Cook boldness and thoroughness, and in the outline of the second and third volumes, which are still forthcoming, and in the pages of the present first volume, we find boldness and thoroughness both in conception and in execution. His method of treatment of a topic is not that of historical synthesis, but that of critical analysis; in a few instances we would be tempted to call it destructive criticism when he prefaces his sections with extracts from the writings of Langdell and Ames and then marshals authorities to manifest the insufficiency of the quoted passages. While the antiquities of equity are not ignored, and historical references abound, some of the longstanding dogmas are attacked by the inquiries, for example, does equity act only in personam; will equitable relief be denied because no property right is involved; will equitable relief be denied because the balance of convenience is against it? In collecting authorities to answer such problems and to illustrate other principles, the editor's "animating purpose has been to present a picture of the fundamentals of equity law as it exists to-day. So far as historical material does not contribute to this purpose, it has therefore been omitted as be