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bequest in his will, but John died leaving a will containing no such bequest. The court dismissed a bill brought by Ralph mainly on the ground that the contract was within the Statute of Frauds, that it was one not to be performed within a year, and that the complainant's will being revocable and without permanency was no · part-performance of the contract.

There can now be no doubt that a person in his lifetime may so bind himself to others as substantially to make himself trustee of property which he is bound to devise in a certain manner for their benefit, and that this may be by parol, provided that such persons during the lifetime of the testator have performed certain acts, relying upon the faith of his promise to devise his property in a certain manner. Should the testator violate his promise and bequeath his property in another way and to other persons, equity will treat such other persons as trustees of those to whom his property should have been by his former promise conveyed, and will compel a disposition of it by them according to the tenor of such promise, treating them as volunteers only. To this class of cases belongs Loffus v. Maw, 32 Law Journal (n. s.), Eq. 19. A testator had promised verbally to leave by will to the six children of his brother, if they would execute a conveyance of certain estates of which he was a trustee, at least as much as they would get under their father's will, and he ultimately died, bequeathing to them less than they did get out of their father's estate. It was held, that the testator's estate was bound to make good to the children the legacies promised to them by him. So, too, Ridley v. Ridley, 12 Law Times (N. S.), 481, where a niece had been induced to render valuable services to her uncle on the faith of his representations that, by so doing, she would become entitled to the benefit of the trusts created in her favor by the codicil to his will, and the testator subsequently revoked such trusts, it was held by Vice-Chancellor Stuart he had no right to make such revocation, and a decree was made that the trusts in favor of the niece should be performed. The following cases also favor the doctrine: Wright v. Trustees, 30 Missouri, 397; Rivers v. Rivers, 3 Desaus. 194; Logan v. McGinnis, 12 Penn. St. 27; Hobson v. Blackburn, 1 Addam. 278; Ex parte Day, 1 Bradf., 476; Bynum v. Bynum, 11 Ired. 632.

The ground of this equitable jurisdiction was differently construed by the one side and the other in the case at bar; the counsel of the complainant arguing that it had its origin in contract, on the faith of which the other parties to the contract having acted, and having in good faith relied, equity would compel its specific execution. On the other hand, the counsel for the respondents claimed that the cause for equitable interference in such cases was merely for the prevention of fraud, and that, therefore, where the party to whom the promise or assurance for a will in his favor had not put himself in such a position that the non-compliance with the contract or assurance would be a fraud upon them, equity would not interfere.

The defence, based upon the Statute of Frauds, set up in the defendants' answer, was met by the complainant in two ways: first, that the contract for mutual wills was not executory, but had been executed, both wills having been duly made under the contract relied upon, having been exchanged under this contract, and the violation now complained of not being a failure to make an exchange of wills, but a revocation of her will by one of the parties to the contract, without giving to the other that notice that she should do so; second, that there was in this case a memorandum of the agreement, signed by the party to be charged: namely, “ the second page.”

On the question of the fairness and definiteness of the agreement for mutual wills, even admitting much of the evidence of the complainant to be true, the great disparity of the property owned at the time of the alleged contract by the aunt and niece was much pressed by the respondents, the aunt being at the time possessed of a fortune of nearly two millions, and the niece of a small house and the reversion of a comparatively insignificant sum. On this point, too, the circumstances of the secrecy of the alleged agreement, the fact that all the papers were avowedly in the handwriting of the other party to the contract, and that their contents were prepared, in a considerable degree, by her, were adverted to as fit to be taken into consideration upon the question of fairness.

It is much to be regretted that no decision upon the doctrine of mutual wills was essential in this stage of the case.

The sole practical result, therefore, is that, in the State of Massachusetts, and in those States where a similar law prevails, rendering incompetent the party to the record where the suit is brought against the representatives of a person deceased, no parol agreement for mutual wills violated by the person deceased can ever be enforced, unless there be evidence independent of the testimony of the living party to the contract sufficient to prove the mutual agreement. Under what circumstances the mutual agreement can be enforced, supposing it to be established by evidence that there was such an agreement, still remains an open question.

It may be stated, in conclusion, that the adjustment arrived at by the parties, after the decision of the Circuit Court dismissing the bill with costs was given, is understood to be the withdrawal of the complainant's appeal upon payment of her expenses, costs, and counsel fees. The will of September 1st, 1863, consequently, remains the will of Sylvia Ann Howland.


THREE questions of great importance in admiralty law have recently been considered by the Supreme Court of the United States. These are, —

1. The exclusive jurisdiction of the admiralty courts over maritime contracts in proceedings in rem.

2. The lien of a material-man furnishing supplies or repairs to a foreign vessel.

3. The jurisdiction of the admiralty courts over the lakes and navigable waters connecting the same.

THE EXCLUSIVE JURISDICTION OF THE ADMIRALTY. The Constitution of the United States declares that « The judicial power shall extend ... to all cases of admiralty and maritime jurisdiction.”1

The Judiciary Act of 1789 2 gives to the district courts “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.”

In many of the States of this country, statutes have been passed allowing proceedings in rem against vessels in common-law courts, in cases where the cause of action is clearly one within the jurisdiction of the admiralty, as well as in cases which are in their nature maritime or quasi maritime.

In The Moses Taylor,3 a suit in rem was brought against a vessel in a State court in California, to recover damages for the breach of a passenger contract of carriage. In The Hine v. Trevor, 4 a suit in rem in a cause of collision was brought in a State court of Iowa. In each case the suit was authorized by a State statute ; but it was held, by the Supreme Court of the United States that the State court had no jurisdiction.

1 Art. 3, sect. 2. 2 Act of 1789, c. 20, $ 9, 1 U. S. Stats. at Large, 76. 3 4 Wallace. 411. 44 Wallace, 555.


These cases decide two points. 1. “ That wherever the district courts of the United States have original cognizance of admiralty causes by virtue of the Act of 1789, that cognizance is exclusive, and no other court, State or national, can exercise it, with the exception always of such concurrent remedy as is given by the common law.” 2. That a proceeding in rem is not a common-law remedy within the exception.

These decisions have given rise to a question of some perplexity, and which is not yet settled. It is this: Can the lien created by a State statute in the case of supplies and repairs furnished a domestic vessel, be enforced by a proceeding in rem in a state court ? The Supreme Courts of New York, Illinois, and Missouri 1 answer this question in the affirmative, while the New York Court of Appeals holds that the State court has no jurisdiction in such a case.

The correct answer to the question obviously depends upon whether the lien given by a State statute in such a case is a 6 civil cause of admiralty and maritime jurisdiction.”

The chief argument in favor of an affirmative answer to this question is based upon the fact, that, for many years, the admiralty exercised jurisdiction in such a case, and it is said, with much force, that, unless the authority was exercised by virtue of the Constitution and the Act of 1789, it could not have been exercised at all, and that if so exercised the jurisdiction by process in rem is exclusive.

An examination of the cases will, however, we think, clearly show that the Supreme Court, so far from holding that such a lien is a maritime cause of action, have expressly declared that it is not, and the process in rem has been allowed on other and distinct grounds. These are,

First. That such a lien is of a “maritime nature.” 3

Second. That where the subject matter of the contract is maritime, the lien given by a State law is enforced upon the ground that the court, under such circumstances, had jurisdiction of the

i The Steamship Circassian, 50 Barb. 490; Bird v. Steamboat Josephine, 50 Barb. 501 ; Williamson v. Hogan, 46 Ill. 504; Boylan v. Steamboat Victory, 40 Misso. 244; Morrison v. Steamboat Burns, 41 Misso. 491. The case of the Victory was carried to the Supreme Court of the United States, but as the appeal was dismissed on a technical ground, the point here presented was not decided. 6 Wallace, 382.

2 In re Steamboat Josephine, 39 N. Y. 19.
3 The Havana, 1 Sprague, 402; The Sch. Marion, 1 Story, 68.


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