Estates and Trusts Commons^™

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases --

Criminal Law--Habitual Criminal--Right of Accused to Counsel under Fourteenth Amendment

Divorce--Alimony Decree Terminating upon Remarriage of Wife--Effect of Annulment of Subsequent Marriage

Divorce--Statutory Modification of Domiciliary Jurisdiction--Congressional Limitation of Power of Territorial Legislature

Labor Law--Unfair Labor Practice--Primary Jurisdiction in NLRB

Life Insurance--Good Health Clause--Existence of Malady Unknown to Insured

Nuisance--Liability for Non-Trespassory Interference with the Use and Enjoyment of Land--Intentional Invasion

Wills--Holographic Codicil--Publication of an Invalid Typewritten Will

Use Of Survivorship Clauses In Wills, Harold A. Bowron, Jr.

Vanderbilt Law Review

Today a draftsman of wills should consider the increased risks of multiple deaths resulting from the hazards of modern living in general and travel by airplane and automobile in particular. He should be aware of the possibility of the client's death with his intended beneficiary within a short period, in a common disaster, or under circumstances in which there is no evidence of survivorship. The failure to provide for these possibilities may lead to the frustration of a testamentary disposition, as a beneficiary must survive the testator in order to take under the testator's will.' Further, the advent of the …

Book Note, Law Review Staff

Vanderbilt Law Review

Book Note

Tax Planning for Estates (1955 Revision)

By William J. Bowe

Nashville: Vanderbilt University Press, 1955. Pp. 98. $3.00

Domestic Relations -- 1954 Tennessee Survey, William J. Harbison

Vanderbilt Law Review

An important case dealing with testamentary restraint upon adoptions was decided by the Tennessee Supreme Court during the survey period.' The case was one of first impression in this jurisdiction and appears to be one of the few decisions upon the subject in the United States. In his will testator created a trust for his granddaughter, the child of his deceased son. He imposed a condition that if the child were adopted before her eighteenth birthday by someone outside testator's immediate family, and if her name were changed, then the trust should terminate and the corpus be distributed to other …

Wills, Estates And Trusts -- 1954 Tennessee Survey, William J. Bowe

Vanderbilt Law Review

Freedom of Testation: Other than the statutory forced share of a spouse' testators have almost unlimited freedom in the disposition of their property. A devise or bequest will be held invalid only when it runs counter to some well established rule of public policy. Thus gifts in violation of the rule against perpetuities, against accumulations or against restraints on alienations are void. Further, the courts will strike down capricious or whimsical bequests, as well as those which are conditioned upon the performance of illegal or tortious acts. But in absence of any violation of public policy a testator is free …

The Non-General Power Of Appointment -- A Creature Of The Powers Of Appointment Act Of 1951, Allan Mccoid

Vanderbilt Law Review

In the course of the past fifty years, during which estate planning has become a specialty rather than one of many jobs handled by the general practitioner, the power of appointment has become an increasingly popular form of gift. The two great advantages which have been claimed for the power are the introduction of great flexibility into the estate plan and the reduction of the tax burden on the property as it passes from one generation to another. It was presumably with both of these objectives in mind that Professor William J. Bowe made a suggestion last year as to …

Heir Hunting -- A Profession Or A Racket?, Frank C. Ingraham

Vanderbilt Law Review

Although the cases clearly define the law and public policy applicable to the genealogist's contract, the important variable is the individual factual situation and its implications. The courts have upheld the heir-hunter's contract when the following factors were predominant in the suit: where the services of the genealogist amounted to valuable consideration; where the parties were competent and on equal footing; where there was no implied or express agreement to participate in existing or contemplated litigation; where the beneficiary accepted the evidence which established his claim and received the benefit of the claim; where there was no duty on the …

Why The Prudent Man?, Alex B. Stevenson

Vanderbilt Law Review

In the law relating to fiduciary investments there has been going on of recent years something very like a revolution. One needs an excuse for adding anything at all to the very considerable volume of comment about the Prudent Man Rule for trust investment. However, failing the hope that anything really new may be said, there does remain a persistent belief that the rationale of what has happened has been somewhat oversimplified.

In the interests of perspective, accordingly, it might be serviceable if we were first (and briefly) to reexamine some of the history of the more dramatic highlights of …

Wills, Estates And Trusts, William J. Bowe

Vanderbilt Law Review

Formalities. The statutory formalities required for the execution of wills are too frequently brushed aside as trivia. The lawyer, supervising the ceremony of execution, and the testator, as the chief actor, may have feelings of embarrassed self-consciousness in complying with the required minutiae. But the importance of staging a routine ceremony, however silly it may seem at the moment, cannot be overestimated. Law students ought to be told and practitioners reminded to adopt the practice, once the testator and witnesses are assembled, of closing the door, drawing the shades, cutting off the telephone and advising all present that no one …

Book Reviews, Harold W. Holt, Harold G. Wren (Reviewer), Walter Chandler (Reviewer), Harold W. Hannah (Reviewer)

Vanderbilt Law Review

Marital Property in Conflict of Laws By Harold Marsh, Jr. Seattle: University of Washington Press, 1952. Pp.

reviewer: Harold Wright Holt

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Life Insurance and Estate Tax Planning By William J. Bowe Nashville: Vanderbilt University Press, November 1952 Revision. Pp. 109.$2.10

reviewer: Harold G. Wren

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Caruthers' History of a Lawsuit Seventh Edition by Sam Gilreath Cincinnati: The W. H. Anderson Company, 1951. Pp. 1088. $17.50.

reviewer: Walter Chandler

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Legal Status of the Tenant Farmer in the Southeast By Charles S.Mangum Chapel Hill: University of North Carolina Press, 1952.Pp. viii, 478, $7.50.

reviewer: Harold W. Hannah

Tax Planning For Nontaxable Estates, William J. Bowe

Vanderbilt Law Review

Owners of modest estates are always greatly relieved to learn of the liberal federal estate tax exemption of $60,000. Freed from the burden of federal estate tax planning they frequently turn their attention to methods of transferring property which will avoid the heavy cost and delay incident to probate administration. Joint ownership, gifts of remainder interests, donee-beneficiary contracts, revocable trusts are among the more common devices available. Use of any one of these plans may accomplish a shift in possession and enjoyment of property upon the death of the planner with no delay and minimum expense.

But the income tax …

Book Reviews, Edmund M. Morgan, Albert Williams (Reviewer), J. Warren Madden (Reviewer), Melvin M. Belli (Reviewer), George H. Tyne (Reviewer), William J. Bowe (Reviewer)

Vanderbilt Law Review

Book Reviews

The Hearsay Rule

By R. W. Baker

London: Sir Isaac Pitman & Sons,Ltd., 1950. Pp. xxi, 180

reviewer: Edmund M. Morgan

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Self-Incrimination: What Can an Accused Person be Compelled to Do?

By Fred E. Inbau

Springfield, Illinois: Charles C. Thomas, 1950.Pp. x, 91. $2.50

reviewer: Albert Williams

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Administrative Law

By Kenneth C. Davis

St. Paul: West Pub. Co.,1951. Pp. xvi, 1024. $8.00

Administrative Law: A Test

By Reginald Parker

Indianapolis: The Bobbs-Merrill Co., 1952. Pp. x, 344. $5.50

Administrative Agencies and the Courts

By Frank E. Cooper

Ann Arbor; University of Michigan Law School, 1951. Pp. …

Estate Liquidity And The Family-Owned Business, William J. Bowe

Vanderbilt Law Review

Every community in the country has its quota of successful merchants, manufacturers and businessmen whose enterprises have, as a result of management or planning, grown and prospered over the years. To value the worth of such businesses for estate tax purposes is perhaps the most difficult fact-issue in the whole field of taxation. Indeed it is doubtful if there is any problem in law or economics where the criteria are so vague and uncertain and where the permissible range for honest differences of judgment is so great. Expert opinion may vary by more than 100%.

Current Constitutional Problems In Federal Taxation, Charles L.B. Lowndes

Vanderbilt Law Review

The most significant constitutional problem in federal taxation today is the absence of constitutional problems. The federal income, estate and gift taxes all encountered an extremely critical reception at the hands of the courts and suffered serious constitutional set-backs early in their careers. Today, however, they function in a constitutional climate as benevolent as it was formerly hostile. A microscopic analysis of the present federal tax system may reveal minor irregularities which might conceivably be magnified into major constitutional issues. From a practical point of view, however, the chance of invalidating a federal tax assessment on constitutional grounds is infinitesimal. …

Book Reviews, William J. Bowa, Emmett Conner (Reviewer), Charles K. Cosner (Reviewer), Charles E. Clark (Reviewer), Joseph Trachman (Reviewer)

Vanderbilt Law Review

Minimum Standards of Judicial Administration

Edited by Arthur T. Vanderbilt

Published by The Law Center of New York University for The National Conference of Judicial Councils, 1949. Pp. xxxii,752. $7.50

reviewer: William J. Bowa

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Availability for Work

By Ralph Altman

Cambridge: Harvard University Press, 1950. Pp. 350. $4.50

reviewer: Emmett Conner, Charles K. Cosner

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Forrester's Edition of Dobie and Ladd's Cases and Materials on Federal Jurisdiction and Procedure

By Ray Forrester

St. Paul: West Publishing Co., 1950, Pp. vii, 990. $8.50

reviewer: Charles E. Clark

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Life Insurance and Estate Tax Planning

By William J. Bowe

Nashville: Vanderbilt …

Book Notes, Law Review Staff

Vanderbilt Law Review

BOOK NOTES

The Law of Trusts

By Ralph A. Newman

Brooklyn: The Foundation Press, Inc., 1949. Pp. xi, 452. $4.50

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Estate Planning

By Joseph Trachtman

New York: Practicing Law Institute. 1949 Edition. Paper bound. Pp. i, 170. $2.00

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BOOKS RECEIVED

The Case of General Yamashita

By A. Frank Reel

Chicago: University of Chicago Press, 1949. Pp. v, 324. $4.00

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Cases and Materials on Commercial Law

By Hugh W. Babb and Carl B. Everberg

Brooklyn: The Foundation Press, Inc., 1949. Pp. iii, 963. $6.00

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Cases and Materials on Law and Accounting

By Donald Schapiro and Ralph Wienshienk …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases

Bills and Notes--Fictitious Payee Known only to Fraudulent Employee of Drawer--Negotiable Instruments Law v. Fictitious Payee Act

Constitutional Law--Amendment and Revision--Power to Call Constitutional Convention Limited to Consideration of Specific Topics

Constitutional Law--Interstate Commerce--Dental of License to Ship Milk Held Invalid

Constitutional Law--Separation of Powers--Legislative Control over Admission to the Bar

Contracts--Recited Cash Consideration--Effect of Non-payment

Contracts--Statute of Frauds--Letterhead as a Signature

Criminal Procedure--Communication between Judge and Jury--Effect of Inquiry as to Pronounced Majority

Criminal Procedure--Constitutional Right to Public Trial--Power of Court to Order Courtroom Cleared of Spectators

Estates--Disability of Life Tenant to Purchase Tax Title to Exclusion …

Foreword, Mayo A. Shattuck

Vanderbilt Law Review

In order to get a proper measure of modern Estate Planning I think it may be useful to consider, very briefly, some aspects of its history. The family trust was born into our jurisprudence in an environment which had been moulded in that solid and immovable pyramid called feudalism. In that social order there was nothing of imaginative elasticity. Lateral allegiances or entanglements were as little known as lateral movements. All lines of authority moved from the top; all discharges of duties were rendered vertically to the liege lord next above. As with human relationships so also with property. The …

Will Renunciation Of A Bequest Or Failure To Claim A Statutory Share Constitute A Taxable Gift?, Daniel D. Canale, Robert E. Cooper

Vanderbilt Law Review

In 1948 the 80th Congress amended the Internal Revenue Code in an effort to eliminate the discrimination theretofore enjoyed by residents of states which had adopted the community property system.' Substantial equalization in the estate and gift tax fields is expected to follow from the marital deduction and "gift tax splitting" privileges. Moreover, these changes have focused attention upon a problem which caused considerable concern to conservative tax advisors even before the 1948 Tax Amendment. It has long been a doubtful question whether the renunciation of testamentary benefits would be held to constitute a taxable gift. The Act and the …

A Symposium On Estate Planning: Foreword, Mayo Adams Shattuck

Vanderbilt Law Review

The power and increasing value of conferences and symposia of the sort which the Vanderbilt Law Review has arranged is that a team of first class men are gathered together to give testimony and useful advice upon the various independent factors which must be taken into account in solution of this fascinating problem. When a group of distinguished scholars and practitioners like those participating in this symposium are willing to make thoughtful contributions to this sort-of round table, without hope of compensation except for the satisfaction that comes from the provision of sound ideas and the education that stems from …

A Planner's Primer, William M. Reynolds

Vanderbilt Law Review

Anyone undertaking an assignment to write within a few pages under this comprehensive title must limit his coverage. This general article on a subject as intangible as estate planning omits entirely or gives short treatment to many considerations which may be of great importance to the conscientious planning of relatively complicated estate situations., Emphasis will be placed on the tax aspects of estate planning, particularly federal taxes, but consideration will be given to other aspects which may be of equal or even greater importance. This deliberate emphasis is certainly not intended to add to the misleading impression, too frequently held, …

Valuation Of The Family Controlled Business For Estate Tax Purposes, James O. Wynn

Vanderbilt Law Review

The starting point in the determination of the federal estate tax is the valuation of the property included in the gross estate.' While the Internal Revenue Code does not use the term "fair market value" in defining the gross estate, the regulations promulgated by the Commissioner of Internal Revenue as an interpretation of the estate tax provisions of the Code provide that "the value of every item of property includible in the gross estate is the fair market value thereof." While a creditable argument could be made that Congress, in using the term "value" in defining the gross estate, intended …

Some Aspects Of Estate Planning In Tennessee, Alec B. Stevenson

Vanderbilt Law Review

Not many years ago a large New York bank circulated privately booklet with the provocative title "The Passing of the Simple Will." The choice of the title and the text itself underlined the complexities which surround the owner of property and his advisers when they jointly attempt to plan the disposition of a modern estate for modem needs. The now almost legendary owner of Blackacre could, indeed, write a simple will, quite effective and satisfactory as a plan for the disposition 'and use of the family property. One need scarcely recite the changes which have taken place in more recent …

A Planner's Primer, William M. Reynolds

Vanderbilt Law Review

Anyone undertaking an assignment to write within a few pages under this comprehensive title must limit his coverage. This general article on a subject as intangible as estate planning omits entirely or gives short treatment to many considerations which may be of great importance to the conscientious planning of relatively complicated estate situations. Emphasis will be placed on the tax aspects of estate planning, particularly federal taxes, but consideration will be given to other aspects which may be of equal or even greater importance. This deliberate emphasis is certainly not intended to add to the misleading impression, too frequently held, …

Transfers In Contemplation Of Death, Edward N. Polisher

Vanderbilt Law Review

The scope of this article is limited to the discussion of transfers prompted by motives associated with life and moral obligations; transfers made simultaneously with the execution of a will, or as a part of a plan of testamentary disposition; transfers of life insurance policies; and lastly, valuation of such transfers.

Book Reviews, Philip A. Hendrick, Charles L.B. Lowndes (Reviewer), Adrian W. Dewind (Reviewer), Chas. A. Morehead (Reviewer), John R. Stivers (Reviewer)

Vanderbilt Law Review

An Estate Planner's Handbook By Mayo Adams Shattuck

Boston: Little, Brown & Company, 1948. Pp. 575. $7.50

reviewer: Philip A. Hendrick

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Estate Planning and Estate Tax Saving By Edward N. Polisher

Philadelphia: George T. Bisel Company. Second Edition, 1948. 2 Volumes. Pp. xxxii, 923. $20.00

reviewer: Charles L.B. Lowndes

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Federal Taxes--Corporations and Partnerships, 1948-49 By Robert H. Montgomery, Conrad B. Taylor and Mark E. Richardson

Vol. I: Gross Income and Deductions Vol. II: Taxes, Returns and Administration New York: The Ronald Press Company, 1948. Pp. xiii, 1001; pp. iv, 881. $20.00

Federal Taxes--Estates, Trusts and Gifts, 1948-49

By …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Assault and Battery--Injury Sustained in Prize Fig

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Constitutional Law--Elections--Voting Rights of Residents of Federal Enclave where Polling Places are on Land under Exclusive Federal Jurisdiction

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Constitutional Law--Miscegenation Statutes--Statutory Prohibitions against Inter-Racial Marriages held Unconstitutional

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Criminal Law--Evidence--Admissibility of Sound Motion Pictures of Re-Enactment of Crime by Defendants

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Criminal Procedure--Use of Jury Primer Prior to Trial

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Estate Planning--Mistake as to Tax Consequences of a Gift--Requirements for Rescission

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Evidence--Impeachment of Witnesses--Warning Question on Examination as to Prior Testimony

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Interstate Commerce--Sherman Act--Applicability to Organized Baseball

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Labor Law--Constitutional Law--Validity of Prohibition on Contributions and Expenditures of Labor …

How Far Will Multi-State Death Taxation Go--Curry V. Mccanless Revisited, Thomas A. Thomas

Vanderbilt Law Review

It is the purpose of this comment to show how the death tax laws today affect the estate of a person who dies in one state leaving tangible or intangible personalty in another state, and also to recall the laws as they existed in the not too remote past and to surmise what they will be tomorrow in the light of recent trends.