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Future Interests-Construction-When Class Closes In Case Of Per Capita Class Gift, William K. Davenport S.Ed.

Michigan Law Review

Testator died in 1928 leaving an estate of $10,000,000. His will provided that each of his grandsons, two of whom were alive at his death, was to receive the income of a $100,000 trust for life. The residue of his estate was left in another trust and was to remain intact until the expiration of 21 years after the death of testator's last surviving grandchild living at the time of his death. Meanwhile the income from this trust was to go to various other legatees. When another grandson was born in 1949, the question arose whether a $100,000 trust should …

The Law School 1952-53, E. Blythe Stason

Michigan Law Review

In reporting the current news of the Law School we must first speak of the students without whom the school would not exist. Another year has opened, this time with about a ten per cent reduction below last year in student enrollment, and consequently considerable relief from the rather overwhelming peaks of the earlier postwar years. Lawyers are deemed expendable in a military program, and, accordingly, a large proportion of college students intending to study law have, since the beginning of the Korean "police action" in 1950, been called to duty by their Selective Service boards immediately after graduation from …

Notes, Michigan Law Review

Michigan Law Review

The information given in the notes is derived from inspection of the books, publishers' literature, and the ordinary library sources.

Title Examinations In Michigan As Affected By The General Federal Tax Lien, L. Hart Wright

Michigan Law Review

There are three federal tax liens which serve to haunt the average title examiner. The first of these is pitched at the wholesale level; it is a shotgun type lien applicable to all federal taxes and is now provided for by section 3670 of the Internal Revenue Code. The second and third are not nearly so sweeping. One is confined to the federal estate tax, being provided for by section 827 of the code, while the other reinforces the federal gift tax and is the product of section 1009 of the code.

The discussion which follows deals only with the …

Corporations-Officers And Directors-Fiduciary Duty Of Officer Purchasing Stock From Shareholder, Walter H. Weiner

Michigan Law Review

Defendant, president of a corporation acquired stock owned by plaintiff and others by falsely representing that the corporation had been sold. After enhancing the value of this stock, defendant sold it. Plaintiff brought suit for fraudulent conversion and the trial court directed a verdict for the defendant. On appeal, held, reversed. An officer negotiating with a shareholder for the purchase of shares must act with scrupulous trust and confidence, and unless the officer acts with the utmost fairness the wronged shareholder may invoke the proper remedy. Blazer v. Black, (10th Cir. 1952) 196 F. (2d) 139.

Federal Procedure-Change Of Venue-Congestion Of Docket As A Factor Affecting Transfer Under Section 1404(A), Peter Van Domelen S.Ed.

Michigan Law Review

Plaintiff sued in the United States District Court for the Southern District of New York to recover damages under the Jones Act for illness sustained while he was serving as a seaman on the defendant's steamship. The defendant moved to transfer the action to the United States District Court for the Northern District of California pursuant to Title 28 U.S.C. § 1404(a) which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Evidence introduced showed that …

Insurance-Conditions-Effect Of Non-Compliance With Notice Clause On Insurer's Liability, John W. Hupp S.Ed.

Michigan Law Review

Automobile liability insurance policies invariably contain a provision requiring immediate notice of accident and suit. The purpose of such a provision is to allow the insurer to make an investigation of the accident in order to prepare a defense and to prevent fraudulent and invalid claims. Although compliance with the provision may be of the utmost importance to the insurer, it frequently is a matter of little or no concern to the insured, and so upon the happening of an accident the insured frequently fails to give due notice to the insurer. The succeeding action by the injured party against …

Civil Procedure-Parties-Intervention Denied Where Applicant Asserts An Independent Cause Of Action In Damage Suit, Richard P. Matsch S.Ed.

Michigan Law Review

ln plaintiff's action for property damages sustained in a collision with defendant's automobile, defendant's wife filed a petition of intervention for her claim against plaintiff for personal injuries received in the accident. Plaintiff's motion to strike the petition of intervention was overruled by the trial court. On appeal, held, reversed. Petitioner's cause of action was independent of the controversy between plaintiff and defendant and did not fall within the provisions of the court rule allowing intervention. Edgington v. Nichols, (Iowa 1951) 49 N.W. (2d) 555.

Negligence-Immunity Of Charitable Institutions From Suit, W. Garrett Flickinger S.Ed.

Michigan Law Review

A patient of defendant charitable hospital died as a result of the transfusion of an incorrect blood type and it was shown that one of defendant's employees had correctly typed the blood but negligently mislabeled it. The widower and children of the deceased brought an action in negligence for damages and the circuit court allowed recovery. On appeal, held, affirmed. The defendant hospital is liable in damages for the death of the deceased caused by the negligence of its employee notwithstanding the fact that defendant is a charitable institution and that the hospital authorities exercised due care and caution …

Judicial Reform In Michigan Between Two Constitutions, 1835-1850, Clark F. Norton

Michigan Law Review

The first fifteen years of Michigan's existence as a state were marked by much experimentation and change in state government. In this short period two state constitutions, a basic constitutional amendment, two general revisions of the statutes, and numerous fundamental laws were enacted and put into effect. Both the legislative and executive branches underwent extensive renovation in these years, but it was the state court system in particular that was subjected to constant pressure for alteration and which was most radically modified, both in structure and procedure.

Labor Law-Labor-Management Relations Act-Relationship Of Remedies Under Title I And Title Iii, Wendell B. Will S.Ed.

Michigan Law Review

Petitioner, a local of the International Longshoremen's and Warehousemen's Union, established a picket line at respondent's lumber mill and notified other locals to refuse to unload respondent's products. Petitioner sought to force respondent to assign certain jobs to its men. Respondent's policy had been to use its own employees for the disputed work. As a result of petitioner's action respondent was forced to suspend its operations. Respondent filed an unfair labor practice charge with the NLRB alleging union violation of section 8(b)(4)(D) of the LMRA. After some time the NLRB determined that petitioner's men were not entitled to the disputed …

Negligence-Right To Recover For Pre-Natal Injurie, James S. Taylor S.Ed.

Michigan Law Review

The plaintiff-infant by his guardian ad litem brought an action against the defendant alleging that while he was en ventre sa mere during the ninth month of his mother's pregnancy, he sustained, through the defendant's negligence, such serious injuries that he was born permanently maimed and disabled. The trial court dismissed the complaint for failure to state a cause of action. The appellate division affirmed. On appeal, held, reversed, two judges dissenting. A complaint alleging pre-natal injuries tortiously inflicted on a nine month foetus viable at the time and actually born later states a good cause of action. Woods …

Constitutional Law-Equal Protection-Damage Action For Breach Of Racial Restrictive Covenant, Richard W. Pogue S.Ed.

Michigan Law Review

Plaintiffs sued at law to recover damages for breach of a racial restrictive covenant, alleging that defendants violated the covenant by conveying restricted property to persons of the Negro race and placing them in possession and occupancy. The circuit court granted defendants' motion to dismiss. On appeal, held, affirmed. The Fourteenth Amendment prevents the maintenance of an action for breach of racial restrictive covenants. Phillips v. Naff, (Mich. 1952) 52 N.W. (2d) 158.

Conflict Of Laws-Full Faith And Credit As Applied To Statutes, George D. Miller, Jr. S.Ed.

Michigan Law Review

While the full faith and credit clause of the Constitution makes no apparent distinction between judgments and public acts, it is clear that statutes have not been afforded the same degree of full faith and credit as judgments. Whether or not a statute will receive full faith and credit has been questionable in most cases, and serious problems of prediction still arise.

Evidence-Confessions-Mcnabb Rule Not Applicable Under The Fourteenth Amendment, Harry T. Baumann S.Ed.

Michigan Law Review

Defendant, detained on a vagrancy charge in Texas, voluntarily confessed to a homicide committed in Nebraska. Upon his return to the latter state, the defendant repeated his confession and was subsequently arraigned, having been in custody for twenty-five days. The confessions were introduced at the trial and a conviction of manslaughter followed. Defendant, failing to gain a reversal in the state court, sought review by the United States Supreme Court, charging that a failure to arraign the defendant promptly in breach of local statutes was a want of due process under the Fourteenth Amendment. On certiorari, held, affirmed, Justices …

Fiduciary Aministration-Executors And Aministrators-Inventory Not A Condition Precedent To Recovery Of Assets, Carl S. Krueger S.Ed.

Michigan Law Review

In a suit by an administrator to recover funds claimed to be part of the decedent's estate, the defendant's answer alleged that the suit had been commenced prior to compliance with a statute requiring an inventory of the assets of the estate. On appeal by the administrator from the trial court's holding that filing an inventory of a claim is a condition precedent to a suit thereon, held, reversed. While an inventory is the basis of subsequent probate proceedings, title to personal assets of the decedent vests in the administrator when he qualifies, and he may sue on claims …

Taxation-Collection And Enforcement-Action Against Collector Of Internal Revenue Not The Proper Method Of Removing Federal Tax Liens, John Houck S.Ed.

Michigan Law Review

Plaintiff's property was under a federal tax lien. He brought suit in the district court against the Collector of Internal Revenue, alleging fraudulent issuance of the lien and seeking removal and damages occasioned by the cloud on his title. The collector moved to dismiss on the grounds that no claim was stated upon which relief could be granted, and further, that the collector was not the proper party defendant, while the United States, which had not been joined, was indispensable to the proceeding. Held, petition dismissed. The court found no indication of fraud, but even assuming fraud to exist, …

Periodical Index, Michigan Law Review

Michigan Law Review

The index embraces material published since the last issue of this Review.

Evidence-Presumptions-Plaintiff's Res Ipsa Loquitur Against Defendants Presumption Of Due Care, Bernard A. Petrie S.Ed.

Michigan Law Review

Plaintiff sued for injuries resulting when an automobile which defendant was driving and in which plaintiff was sleeping left the highway. There was evidence that defendant suffered retrograde amnesia and could not recall the circumstances of the accident. The court, instructing on res ipsa loquitur for plaintiff, told the jury that it might infer negligence from the fact that the automobile inexplicably left the highway. The court also instructed that, if the jury believed that defendant suffered a loss of memory, defendant was presumed to have exercised due care. Verdict for defendant. Plaintiff contended that instruction on the presumption of …

The Steel Seizure Case: Congress, The President And The Supreme Court, Paul G. Kauper

Michigan Law Review

Questions relating to the legislative authority of Congress and of the several states have given rise to an immense mass of constitutional litigation ever since the time that the Supreme Court in Marbury v. Madison asserted its power of judicial review. Many of these cases have turned on the division of legislative authority between Congress and the state legislatures under our federal system. Yet within this same span of time relatively few cases have arisen to challenge the assertions of presidential power, and in only a few instances has the Court found occasion to speak at length on the questions …

Front Matter, Michigan Law Review

Michigan Law Review

Front Matter for Volume 51, Issue 2 of Michigan Law Review

Federal Procedure-Jurisdiction-No Appeal Allowed Under Rule 54(B) When Separated Claim Not Final, Wilber M. Brucker, Jr. S.Ed.

Michigan Law Review

Flegenheimer sued Manitoba Sugar Co., a Canadian Corporation, in a Vermont state court for breach of an employment contract to gain jurisdiction, Flegenheimer attached parcels of beet pulp which he claimed were the property of the Manitoba Co. After this action was removed to the federal district court, General Mills, Inc., was granted leave to intervene to establish ownership of the beet pulp. The claim of General Mills was dismissed after being heard on the merits. The order dismissing the claim contained a determination that "no just reason for delay" existed, and it therefore directed an "entry of judgment" under …

Personal Property-Liens-Artisan's Lien On Unimproved Goods For Improved Goods Delivered Under A Single Contract, Warren K. Urbom S.Ed.

Michigan Law Review

Pursuant to a contract a partnership delivered to defendant a carload of paper upon which defendant had agreed to print certain forms in accordance with instructions to be given by the partnership. Thereafter a corporation succeeded to the assets and assumed the liabilities of the partnership and gave to the defendant instructions for a desired printing. A portion of the paper was printed and delivered to the corporation, the remaining unprinted paper being held by the defendant under a claim of a statutory lien for the printing actually completed. Plaintiff, assignee of the trustee in bankruptcy of the corporation, sued …

Apportionment Of The Federal State Tax In The Absence Of Statute Or An Expression Of Intention, William P. Sutter

Michigan Law Review

Federal law now provides in sections 826 (c) and (d) of the Internal Revenue Code that life insurance and property transferred by appointment shall bear their proportionate tax burden. It does not contain similar provisions with respect to other types of non-probate property. At the present time, twenty states provide by statute for some sort of apportionment of estate taxes. Two states have statutes restricting apportionment in some degree. In the rest, the matter rests in the discretion of the courts. I propose to discuss in this article the situation in those areas where no statutory guidance exists.

Federal Procedure-Removal Denied To Lmpleaded Party Under 28 U.S.C. 1441(C), Robert G. Russell S. Ed.

Michigan Law Review

Plaintiff sued to recover indebtedness of $7000, to foreclose a chattel mortgage, and to enjoin a local bank from permitting the accounts of the debtor to be withdrawn. Defendant then filed a cross-complaint, as authorized by state procedure, against a third party nonresident garnishee to recover damages for breach of contract and money owed in the sum of $35,000. The cross-defendant removed the case to the United States district court. Held, although the cross-complaint stated a separate and independent cause of action, it could not be the basis of removal since 28 U.S.C. §1441 (c) contemplates only the removal …

Constitutional Law-Fourteenth Amendment Equal Protection Segregation In Recreational Facilities Furnished By A Municipality, James S. Taylor S. Ed.

Michigan Law Review

The plaintiff, a Negro, was denied admission to a municipal golf course under an ordinance setting aside certain public parks for the exclusive use of Negroes, and providing that all other public parks were for the exclusive use of white people. Only the public parks provided for the "whites" had golf courses, though in all other respects the park facilities offered were substantially equal. The plaintiff brought an action in a federal district court for a declaratory judgment as to his civil rights and for an injunction protecting such rights. The injunction was denied on the grounds that the facilities …

Bills And Notes-Negligent Conduct By Drawer Preventing His Claim That Drawee Paid On A Forged Indorsement, John S. Slavens S. Ed.

Michigan Law Review

X and Y, owners of a joint savings account with the plaintiff bank, delivered their bankbook to Z with a withdrawal receipt signed by both depositors in the amount of $75. Z fraudulently altered the receipt, a form used only in paying directly to a depositor, by raising the amount to $5,000, and then presented the bankbook and altered instrument to a teller employed by plaintiff, asking for $5,000. The teller, unwilling to give Z the money, was then instructed to alter the receipt so as to give it the appearance of a check. Then on behalf of plaintiff, …

The Second Circuit Reaffirms The Efficacy Of Restrictive Stock Agreements To Control Estate Tax Valuation, Edmund W. Pavenstedt

Michigan Law Review

Owners of close corporations have for many years entered into agreements with each other requiring a stockholder who wishes to dispose of his holdings first to offer them to his fellow stockholders or to the corporation and, in the case of death, granting to the survivors or the corporation an option to buy the shares from the decedent's estate. Such agreements either fix a price per share or contain a formula or a provision for appraisal under which such price is to be determined. About twenty years ago two leading cases both decided by the United States Court of Appeals …

Corporations-Securities Exchange Act Of 1934-Equitable Principles As A Bar To Short Swing Recovery Under Section 16(B), Edward D. Goldstein S. Ed.

Michigan Law Review

Plaintiff corporation, after receiving authority from the Corporation Commissioner of California, gave to its key employees including defendants ( who were officers of the corporation) options to purchase certain stock of the plaintiff. The plan originated with the president of the corporation and the agreement took place at a time when the stock was unlisted. At no time subsequent to the stock being listed on a stock exchange did the plaintiff advise defendants of the short swing-requirements that arose from listing. Plaintiff's purpose in granting the option was to retain the services of its key employees and to induce these …

Notes, Michigan Law Review

Michigan Law Review

This department undertakes to note or review briefly current books on law and materials closely related thereto.